McCasland v. Henwood

• Decision Date: 17 June 1948
• Docket Number: No. 6362.,6362.
• Citation: 213 S.W.2d 555
• Parties: McCASLAND et al. v. HENWOOD.
• Court: Texas Court of Appeals

213 S.W.2d 555

McCASLAND et al. v. HENWOOD.

No. 6362.

Court of Civil Appeals of Texas. Texarkana.

June 17, 1948.

Rehearing Denied September 9, 1948.

Appeal from District Court, Cass County; Robert S. Vance, Judge.

Suit by Pete McCasland, individually and as next friend of his four children, against Berryman Henwood, trustee for the St. Louis Southwestern Railway Company of Texas, for death of plaintiff's wife, Erline McCasland, deceased, and injuries to plaintiff resulting from collision between automobile driven by plaintiff and train operated by defendant, wherein R. P. Bobo and wife, Maudie Bobo, father and mother respectively of deceased wife of plaintiff, intervened. From an adverse judgment, plaintiffs and intervenors appeal.

Judgment affirmed.

Carney, Carney & Mays, of Atlanta, for appellants.

Otto Atchley, of Texarkana, and Robert F. Salmon, of Linden, for appellee.

HALL, Chief Justice.

The following clear and concise statement of the case made by appellants in their brief and admitted by appellee to be correct, is adopted by this court:

"Pete McCasland, individually and as next friend of his four children, all residents of Cass County, Texas, filed this suit in the District Court of Cass County, Texas, against Berryman Henwood, Trustee for the St. Louis Southwestern Railway Company of Texas, alleging the death of his wife, Erline McCasland, and permanent and incapacitating injuries to himself as the result of a collision between an automobile driven by plaintiff McCasland and a train operated by the defendant on the defendant's railway track near the community of Eylau, in Bowie County, on the night of December 2, 1944. Plaintiff pleaded, among other things, that the railroad track of the defendant at the place of the collision was elevated above the normal road bed and that the view of the railway crossing at that point was so obstructed by bushes, weeds and trees that the particular crossing constituted a more than ordinarily dangerous or extra-hazardous night time crossing, which facts were known by the defendant; and plaintiff pleaded specific acts of negligence on the part of the defendant in failing to have a watchman, flagman or automatic signaling device at said crossing, defendant's failure to maintain the crossing in proper condition for the safety of travelers approaching the crossing, and that defendant allowed its train to obstruct the crossing for an unreasonable period of time prior to the collision. Plaintiff sought damages for his personal injuries, his automobile and hospital and medical bills in the total amount of $74,160.30, and damages for his minor children in the amount of $25,000.00 for the loss of their mother. R. P. Bobo, and wife, Maudie Bobo, father and mother respectively of the deceased wife of plaintiff, intervened in the suit and adopted the petition of plaintiff seeking the sum of $3,000.00 for the loss of their daughter's contributions to their support.

"The defendant answered, pleading, among other things, that the collision was an unavoidable accident, that said crossing was a safe crossing for travelers approaching it, and various specific acts of contributory negligence on the part of plaintiff, Pete McCasland. The jury, in answer to fifty-three special issues submitted to it by the court, found that the crossing was not more than ordinarily dangerous as a night time crossing and that the defendant was not negligent in failing to provide a mechanical signaling device or flagman at the crossing at the time of the collision; in defendant's favor as to issues involving discovered peril; in plaintiffs' favor with respect to all of the issues involving alleged contributory negligence on the part of plaintiff; that the collision was the result of an unavoidable accident; and found that plaintiffs and intervenors were entitled to $21,000.00 in apportioned amounts."

The court rendered judgment for the defendant on the verdict and plaintiffs and intervenors have duly perfected their appeal to this court.

Appellants assert by their first point that the trial court erred in refusing to grant them a new trial because of the misconduct of the jury in discussing the effect of certain of their answers while deliberating on the case. The particular alleged misconduct to which our attention is directed by this point relates to certain discussions in the jury room by one or more jurors to the effect that it was immaterial how they answered certain of the special issues; that the appellants would still get their damages assessed by the jury in the answer to the last special issue.

This case arises out of an injury to appellant McCasland and the death of his wife which occurred at a railway and public road crossing known as Eylau crossing. This crossing is formed by the appellee railway company's track and a public highway referred to in the record as the old T. & P. Dump Road. Appellee will hereafter be referred to as "the railway" and the Dump Road as "the highway." The railway and the highway cross each other at right angles. The highway is graveled and is quite extensively used by the public since the construction of the war plants west of Texarkana. This highway intersects State Highway No. 11 at what is known as Baker's store. A great number of persons traveling from the towns of Atlanta and Queen City and surrounding territory travel State Highway No. 11 to Baker's store and then turn off to the left onto the highway in question to the war plants west of Texarkana. (The evidence shows that the railway track is from 2½ to 4 feet above the level of the highway crossing). McCasland together with his wife and another party were traveling the highway from the south at about 11 o'clock at night when they drove their car into a freight train of appellee which was moving slowly along said crossing. Appellants' automobile struck the third or fourth oil tank car from the engine and about thirty-eighth or thirty-ninth car from the caboose. Pete McCasland, the driver, was seriously injured and his wife and a party...