Louisiana Ry. & Nav. Co. of Texas v. Brewer

• Decision Date: 25 June 1925
• Docket Number: (No. 3102.)
• Parties: LOUISIANA RY. & NAV. CO. OF TEXAS v. BREWER.
• Court: Texas Court of Appeals

275 S.W. 181

LOUISIANA RY. & NAV. CO. OF TEXAS v. BREWER.

(No. 3102.)

Court of Civil Appeals of Texas. Texarkana.

June 25, 1925.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Action by W. E. Brewer against the Louisiana Railway & Navigation Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McMahan & Dohoney, of Greenville, for appellant.

Clark & Clark, of Greenville, and C. A. Sweeton, of Houston, for appellee.

HODGES, J.

On May 4, 1922, Mrs. Maud Brewer, the wife of the appellee, was killed in a collision at a crossing by one of the appellant's trains. This appeal is from a judgment in appellee's favor for damages resulting from the death of his wife. He charged negligence on the part of the appellant (1) in failure to maintain the crossing in proper condition for use by the traveling public; (2) failure of the appellant's employees in charge of the train to keep a lookout for persons about to use the crossing; (3) failure to ring the bell, as required by statute, in approaching the crossing; (4) discovered peril. The court submitted those issues in a general charge, and the jury returned a verdict against the appellant for the sum of $15,000.

The facts about which there is no apparent dispute show that on the date above mentioned Mrs. Brewer was riding in a Ford sedan driven by her daughter, Mrs. Whitten. They were going from Cumby to Greenville, in Hunt county. Mrs. Brewer was merely accompanying her daughter, who was expecting to meet her husband at Greenville. For some distance after leaving home they traveled what is called the Old Colony road, a public highway that runs parallel with and south of the appellant's line of railroad. When a few miles from Cumby they turned north on a road that crossed the appellant's track at right angles and connected with another highway that led on west to Greenville. As they were crossing the railroad the auto was struck by a west-bound passenger train. Mrs. Brewer was killed, and Mrs. Whitten was seriously injured. From the point where they left the Old Colony road to the crossing is about a quarter of a mile. The photographs introduced in evidence, and the testimony of witnesses, show that the country intervening between this crossroad and the railway track is open, with but few obstructions to prevent a traveler upon that road from seeing a train approaching from the east, at least 600 feet before it reached the crossing.

Mrs. Whitten testified, in substance, that she was going to Greenville to meet her husband. Her mother went along for company. She was driving, and a cousin was sitting on her right; Mrs. Brewer was occupying the rear seat. All the windows of the car were closed except the one on Mrs. Whitten's left. The condition of the road from where they left the Old Colony road was very rough and had deep ruts in it. She did not think she was driving over 5 miles an hour through that lane. There was a low place in the road about 300 or 400 feet south of the railroad crossing, also a deep ditch on the side of the road, and she had to go in low gear to pass it. The road from there to the crossing was rough, and just a little way before she got to the crossing there was a sharp incline going up, and she had to go in low gear to get up that incline. After going up the incline she discovered that the south rail of the track was exposed. She crossed the first rail of the track, and when the front wheels dropped over the car stopped and she never did get any further. When the wheels of the car dropped over the first rail the engine was killed, and she was never able to start the car again. It was just a matter of a few seconds. The train was coming on them. She did not hear any signals given by the train, did not hear any whistle, did not hear the bell ringing. "It did not ring," she said. As she approached the crossing she looked and listened for the train — always did that — and she did not see or hear any train approaching. After the collision she became unconscious and did not know what happened. She had frequently traveled that road, and was familiar with the crossing.

Appellant's fireman testified that as they approached the crossing he was looking ahead and discovered the automobile on the road south of the track. When the train turned the curve a quarter of a mile east of the crossing, according to his best judgment, the car was about 150 yards from the railroad. It was not then traveling very fast — probably 10 miles an hour. He noticed the car again when the train was about 200 or 300 feet east of the water tank (the latter was 407 feet east of the crossing). The car was then nearer the track, and going at a very low rate of speed. After he passed the tank he noticed the car still coming, and as it got to the edge of the right of way, not more than 50 feet, it seemed to him that the car was speeded up, and he then called to the engineer to stop, and the latter applied the brakes immediately. The pilot beam hit the front door of the car and shattered it. The car was moving when struck. He did not signal the engineer to stop sooner because that was an everyday occurrence. They...