Lewis v. Thompson
| Decision Date | 14 November 1951 |
| Docket Number | No. 9995,9995 |
| Citation | 244 S.W.2d 286 |
| Parties | LEWIS v. THOMPSON. |
| Court | Texas Court of Appeals |
Adams, Browne & Sample, by Ernest L. Sample, Beaumont, for appellant.
Charles S. Pipkin, Alto V. Watson, Beaumont, for appellee.
This suit was instituted by appellee against appellant to recover damages for personal injuries and property damages alleged to have been sustained in a crossing collision which occurred in the city limits of Beaumont. A jury was empaneled and at the conclusion of the plaintiff's evidence, the Court instructed a verdict peremptorily in favor of the appellee.
The appeal is before this Court on five points of error: numbers One and Two are to the effect that the Court erred in instructing a verdict, because there was evidence, sufficient to make a jury issue of negligence, on the part of employees of defendant in failing to ring a bell, and/or in failing to sound a whistle; and number Three to the effect that it was not shown as a matter of law that plaintiff was guilty of contributory negligence; and the fourth point was that there was evidence, sufficient to make a jury issue that negligent acts and omissions of defendant's employees was a proximate cause of damages to plaintiff; and the fifth point that because it was not shown as a matter of law that the collision was proximately caused by any negligence of the plaintiff.
The collision occurred on defendant's track on May 13, 1949, at about 8:25 or 9 o'clock p. m.
The plaintiff alleged that the defendant, its agents, etc., were negligent in failing to keep a proper lookout, in failing to stop, in failing to ring the bell, and in failing to sound a whistle after discovery of plaintiff's perilous position, in failing to keep proper control of the locomotive, and in failing to stop after discovery of plaintiff's perilous position.
The defendant pleaded generally, in addition to a general denial, that plaintiff was guilty of acts and omissions amounting to negligence which were the sole cause of the plaintiff's claimed injuries and damages, or in the alternative, were a proximate cause thereof.
The collision occurred where two tracks of appellee cross Crockett Street. Crockett Street runs east and west and the tracks run southeast to north.
The appellant testified that he was driving in an easterly direction on Crockett Street on the right-hand side of the street at a rate of speed of ten to twelve miles an hour; that his eyesight and hearing were good; that he could see by his own light for about a block; that his windows were down, and at his rate of speed could stop his car in a car's length. He further testified that he had traveled on Crockett Street approaching the crossing at the same rate of speed and did not stop until the collision; that he did not look down Bowie Street switch to see if an engine was coming, and that he did not look to see if an engine was coming from his right, and that he did not see the engine until the collision, and that there was nothing to obstruct his view of anything as big as an engine.
Plaintiff testified that he did not see the signal light until he was right on it; that the lights were not working, but just as he was even with the lights they started working, and that he did not see the lights right then on account of a tree between him and the light, which was on the right side of the street; that the front end of his car was hit on the right side by the front end of the locomotive and moved...
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...the Courts of Civil Appeals have. See Lackey v. Gulf, C. & S. F. Ry. Co., 225 S.W.2d 630, no writ history, by the Austin Court; Lewis v. Thompson, 244 S.W.2d 286, writ refused, N. R. E., by the Austin Court; Texas & N. O. R. Co. v. Stewart, 248 S.W.2d 177, writ refused, N. R. E., by the Wac......
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