Louisiana Ry. & Nav. Co. v. Humphreys

• Decision Date: 17 April 1926
• Docket Number: (No. 9554.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 285 S.W. 869
• Parties: LOUISIANA RY. & NAV. CO. OF TEXAS v. HUMPHREYS.
• Court: Texas Court of Appeals

285 S.W. 869

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

(No. 9554.)^*

Court of Civil Appeals of Texas. Dallas.

April 17, 1926.

Rehearing Denied June 5, 1926.

Appeal from District Court, Hunt County, Geo. B. Hall, Judge.

Action by P. L. Humphreys against the Louisiana Railway & Navigation Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McMahon, Dohoney & Dial, of Greenville, for appellant.

Evans & Evans and Harrell & Starnes, all of Greenville, for appellee.

JONES, C. J.

Appellee, P. L. Humphreys, recovered judgment in the district court of Hunt county against appellant, Louisiana Railway & Navigation Company of Texas, in the sum of $700 for personal injuries alleged to have been received in a collision of appellant's passenger train with an automobile in which he was a passenger. Appellant has duly perfected its appeal to this court. The facts are as follows:

The said automobile was operated for the purpose of carrying passengers for hire, and appellee and his wife had taken passage in same, and were riding on the rear seat of said automobile, which appears to have been an ordinary five-passenger car. Wesley street is a public street in the city of Greenville, and runs north and south. It crosses appellant's tracks at right angles in said city. On the west side of Wesley street, and just north of appellant's tracks, is a large lumber yard, with sheds extending to the south line of the railroad right of way and to the sidewalk on the west side of Wesley street. There are three tracks at said crossing; the north and south tracks being switch tracks, and the center track being the main line. On the north switch track two box cars were standing; the east end of the one nearest Wesley street extending to the crossing on the west side of said street. That portion of Wesley street crossed by appellant's tracks is heavily burdened with traffic, and appellant had installed at said crossing an automatic electric bell for the purpose of warning the users of the street of the approach of trains. Because of the obstruction above described, one approaching said crossing from the north on Wesley street could not see a train on the main track coming from the west until he had cleared the north switch track. On the night of May 4, 1924, the occasion in question, and at about 10 o'clock, the front of the automobile in which appellee was riding collided with the front part of an engine that was pulling one of appellant's passenger trains, and said automobile was carried a distance of approximately 150 to 175 feet before the train was stopped. The said train approached the crossing from the west, and the front wheels of the automobile had just crossed the north rail of the said main track when the train was discovered, and the collision occurred almost simultaneously. Appellee received injuries directly and proximately caused by said collision. In obedience to the verdict of the jury in appellee's favor, we find that on said occasion the said automatic bell did not ring a warning on the approach of the train, and the statutory signals of blowing the whistle and ringing the bell were not given by appellant's employés in charge of the operation of the said engine.

The case was submitted to the jury on a general charge, as follows: (a) As to whether appellant's employés, in operating said train as it approached the crossing, failed to operate same at such rate of speed as would have enabled them to retain control thereof, and as to whether such failure, if any, was negligence; (b) as to whether the electric warning signal at said crossing failed to ring as said train approached said crossing, and as to whether such failure, if any, was negligence; (c) as to whether said train was approaching said crossing at a greater rate of speed than 10 miles per hour; (d) as to whether there was a failure to give the statutory signals in approaching said crossing by blowing the whistle within a distance of at least 80 rods from same, or a failure to ring the bell on said engine within said distance, and to keep same ringing continuously until said train reached said crossing, and as to whether the jury believed that any or all of said acts or omissions, if any, were the direct and proximate cause of appellee's injuries, if any.

Appellant, by timely exceptions to the charge, and appropriate assignments of error, has duly raised all the issues herein discussed. Appellant requested peremptory instruction in its favor, on the theory that none of the issues above submitted were raised by the evidence. Error is assigned also on the admission of certain evidence, which will be hereinafter discussed. The gist of appellant's contention in reference to its right to peremptory instruction is based on the theory that, as there was direct and positive evidence that the statutory signals were properly given, the said electric bell was ringing its warning, and that this character of evidence established a fact that is not disproven by what appellant styles mere negative testimony, and that the other issues of negligence submitted were not raised, either by pleading or evidence. It is not necessary to pass upon this contention as to the effect of negative testimony, for, in our opinion, there was affirmative evidence offered by appellee that tended to establish the failure to give each of said signals. Both appellee and his wife testified that as the automobile approached said crossing they were listening to hear whether the electric warning bell was ringing and to hear whether any train sounded a whistle from its engine or rang its bell, and that they did not hear any of such signals. This amounts to positive testimony that signals were not sounded. The assignments of error in this respect are overruled.

It is also contended that appellee's pleading does not raise the issue as to the due enactment of a speed ordinance by the city of Greenville, and that said ordinance was in force at said time, and, by its terms, prohibited the operation of trains at said crossing at a greater rate of speed than 10 miles per hour, and that the court erred in admitting over its timely objection such speed ordinance. It is also contended that the evidence in reference to the violation of this ordinance is not of sufficient potency to authorize the submission of the issue of its violation. In connection also with this issue, error is assigned on the admission of appellee's testimony to the effect that in his judgment said train was being operated at a speed of 25 miles per hour, for the reason that it appeared from appellee's testimony that it was impossible for him to estimate the speed of said train at said time.

As a basis for the introduction of said ordinance, the petition alleged that appellant's employés "failed and neglected to run said train within the speed limit as regulated by a city ordinance of the city of Greenville." There was no special exception urged against this allegation, and the question is whether it is sufficient as against a general demurrer. Appellee having based his cause of action in part on the violation of a speed ordinance of the city of Greenville, it was necessary, as against a general demurrer, to allege that said ordinance had been duly enacted and was in force at said time, for courts do not take judicial notice of city ordinances. City of Austin v. Walton, 68 Tex. 507, 5 S. W. 70; Brush Elec. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S. W. 229; Railway Co. v. Boyed (Tex. Civ. App.) 201 S. W. 219.

It being necessary for appellee to allege the due enactment and existence of a speed ordinance in the city of Greenville and its violation by the operatives of appellant's train, was this allegation sufficient to admit the said ordinance in evidence? The effect of this pleading is to allege that an ordinance of the city of Greenville regulated the speed of trains within its corporate limits, and that appellant had violated same on the occasion in question. Under this allegation, as against a general demurrer, we can infer that said ordinance was duly enacted and in existence at said time.

There is evidence from experienced train operatives that at the time and just before the collision the train did not exceed a speed of 10 miles per hour; all but one placing the speed at from 6 to 8 miles per hour. The evidence of appellee as to the speed of the train is that when he first became aware of the presence of the engine the front wheels of the automobile were just over the railing of the main track, and "when I first saw the train it looked...