Louisiana Ry. & Nav. Co. v. Loudermilk

• Court: Texas Court of Appeals
• Writing for the Court: Levy
• Citation: Louisiana Ry. & Nav. Co. v. Loudermilk, 12 S.W.2d 824 (Tex. App. 1928)
• Decision Date: 19 December 1928
• Docket Number: (No. 3587.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: LOUISIANA RY. & NAV. CO. OF TEXAS v. LOUDERMILK.

12 S.W.2d 824

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

(No. 3587.)^*

Court of Civil Appeals of Texas. Texarkana.

December 19, 1928.

Rehearing Denied January 3, 1929.

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

Action by Raymond Loudermilk against the Louisiana Railway & Navigation Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 295 S. W. 193.

The automobile in which the appellee and three other persons were riding came into contact with backing cars of appellant's at a street railway crossing in the city of Greenville, about 9:45 o'clock p. m. He brought the suit for damages for personal injuries, alleging negligence on the part of the railway company to be (1) failure to give the statutory signals of ringing the bell and blowing the whistle; (2) failure to have some character of headlight on the front end of the backing cars as they were moving through the town of Greenville, in warning of the approaching cars; (3) failure to have the air connected through the train so that the air brakes could be applied by the engineer upon all the cars; and (4) failure of the employees in charge of the train to use due care to keep a lookout for persons about to use the Stonewall street crossing. The defendant pleaded as a defense, besides general denial, negligence in driving the automobile at a high rate of speed; in failing to look and listen for approaching trains; in being under the influence of intoxicating liquor; in failing to listen to the electric signal bell at the crossing; in the driver of the automobile conducting himself in a reckless manner and running the automobile into the side of the moving train. The case was submitted to the jury on a general charge, and the verdict was in favor of the plaintiff. The charge called for the determination by the jury of whether the railway company was negligent or not in the several respects above set out as alleged. The charge also called for their determination of whether or not the appellee and the driver of the automobile were guilty of negligence in the respects, as pleaded, of the excessive or high rate of speed in operating the automobile, of failure to look and listen for the approach of the train, of failure to listen and heed the ringing of the electric signal bell at the crossing, and of driving the automobile into the side of the front box car of the moving train.

The railroad track runs east and west. Stonewall street runs north and south, and is 36 feet in width from curb to curb. It is one of the principal streets of the city. The crossing is much used by people going to and from the many large industrial plants located in the southeast portion of the city. It is also considerably used in early nighttime by people going home from business pursuits and from the moving picture shows. A street arc light is maintained by the city north about 65 feet from the crossing. The railway company maintains an automatic electric signal bell to warn of approaching trains at the crossing. A large railroad crossing sign is on the south side of the crossing. The injury in suit occurred on October 22, 1924, between 9:30 and 9:45 o'clock p. m. The night was dark. The switch engine was pushing a string of nine cars on the track from west to east. The car on the front end was a box car. The cars were being transported from the company's yards on the west of the city, to be placed on the industrial spurs on the east side. The appellant was engaged in interstate commerce, hauling passengers and freight between the states of Texas and Louisiana and other states. It also was engaged in intrastate business. One of the cars being transported to the industrial spur tracks was described as an "empty poultry-car L. P. T. 1476 to be delivered to the Cotton Belt." The other eight cars were described only as "M. K. 83553, 90942, C. N. 220796, M. O. P. 16368, M. K. T. 86686 & 88900, G. R. O. X 131." There is no evidence of whether they were or were not loaded, nor their destination. A party of two young men and two girls were out riding in a Ford touring car. The appellee and a young lady were seated in the back seat. They were at the time on Stonewall street, coming from the south and going north. The meeting of the automobile and the train at the crossing resulted in a collision, wrecking the automobile, and causing serious bodily injuries to three of the party, including appellee. The evidence concerning the collision, except as to the fact that it occurred, is conflicting. The evidence of Mr. Ketchum, a witness for appellant, describes the occurrence as follows:

"I was a switchman for the company when we had a collision with an automobile in which Mr. Loudermilk was riding. At the time of the collision I was seated on top of the box car at the front end of the drag of cars. We were coming from the west yards, going to what we call the lower yards. The engine was back on the west end of the drag of cars. I was facing south as we crossed Stonewall Street. Mr. Gresham, also a switchman, was on the car with me, sitting on the runningboard. I was the foreman of that train. It was after dark when we got to Stonewall Street. I had a lantern and it was lighted, and so did Mr. Gresham. When I caught the first glimpse of the automobile in which Mr. Loudermilk was riding we were approaching Stonewall Street — had not gotten into it — were just entering it a little. I looked and saw the auto coming. Our train was moving about four or five miles an hour. I guess the auto was thirty or thirty-five feet from us; when I realized that he was not going to stop I commenced hollering and waving my lantern, giving the engineer the signal to stop. I hollered to the parties in the auto. I was trying every way to stop them. The front box car at that time was practically across Stonewall Street. The people in the auto did not heed the hollering or the swinging of the lantern. The automobile did not slacken its speed. I saw the collision. The auto struck the box car with the top of the radiator, right under me. The auto struck against the side of the box car near the front end. The auto never got on the track, and did not get around in front of the box car. When I gave the signal to the engineer with my lighted lamp to stop, the train stopped within about 36 feet, a car length. * * * The electric signal-bell was ringing. I noticed it when we cut the crossing. * * * We had lanterns on top of the car. We did not have any light down on the end of the box car. There was no light on the end of the box car. The switch engine had a headlight at each end of it. * * * The automobile was traveling about twenty miles an hour, and it did not slacken its speed, as I saw it, but kept coming, and ran right into the box car."

The testimony given by the other operatives of the train and by several other witnesses in behalf of the appellant is of the same substance and force as the quoted evidence. All of the witnesses for appellant state that the bell on the engine was continuously ringing; the street light was burning; the electric signal bell was ringing. According to the testimony of the driver of the automobile, the occurrence was in the following manner:

"I came to Greenville from my home in Emory that day. I came in my car, a Ford touring car. After I met Raymond Loudermilk he and I made a date with two young ladies to go riding. We started riding about 8 o'clock P. M. * * * When we started back we came in on Stonewall Street, going north. I was driving the car. It was something like 9:30 o'clock P. M. As we approached the L. R. & N. crossing on Stonewall Street I was driving the car about four or five miles an hour. * * * Approaching the track I slowed down. I knew the track was there. I did not hear any noise of an approaching train. I did not see any headlight of a train, or hear any whistle blown or any bell ringing. The first I saw or heard of a train approaching was just as I drove on the track. Just as I drove on the track a string of box cars hit us. The box car hit the auto, somewhere about the back of the auto. I never knew anything more after the collision until the next morning. * * * The signal bell was not ringing. I knew there was a crossing, and I listened to hear whether a train was coming. I did not see anything that looked like a train, until just at the time it hit the auto. * * * The city electric light there was not burning at that time. I did not see a man on top of the box car with a lantern. I say the whistle was not blown. There was nothing to keep me from hearing it. The bell on the train was not ringing. I know the electric bell at the crossing was not ringing. I had been looking in both directions to see if a train were approaching, and just as I got in about five feet of the rail I first saw it and it hit the car."

The other three occupants of the automobile and several other witnesses for appellee testified substantially as did the driver of the automobile. As shown...