McNeel v. Texas & N. O. R. Co.

• Decision Date: 16 November 1932
• Docket Number: No. 2261.,2261.
• Citation: 54 S.W.2d 571
• Parties: McNEEL v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

54 S.W.2d 571

McNEEL v. TEXAS & N. O. R. CO.

No. 2261.

Court of Civil Appeals of Texas. Beaumont.

November 16, 1932.

Rehearing Denied November 30, 1932.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by Mrs. Shirley McNeel, individually, and as next friend of James McNeel, against the Texas & New Orleans Railroad Company. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

C. A. Lord and John D. McCall, both of Beaumont, for appellant.

F. J. & C. T. Duff and Lamar Cecil, all of Beaumont, for appellee.

O'QUINN, J.

Suit by Mrs. McNeel to recover $5,000 in her own right, and as next friend to recover for James McNeel, her minor son sixteen years of age, the sum of $10,000, damages alleged to have occurred by reason of the negligence of the appellee railroad. The several acts of alleged negligence were fully and adequately pleaded.

Appellee answered by general demurrer, general denial, and specially that the injuries of plaintiff James McNeel were the direct and sole result of his own negligent acts, fully setting forth the acts relied upon. Appellee also specially answered that appellant James McNeel was guilty of contributory negligence, which was the proximate cause of his injuries, specifically setting out the several matters asserted to constitute his contributory negligence.

The case was tried to a jury, but at the close of the evidence, the court, at the request of appellee, instructed the jury to return a verdict for defendant, appellee, which they did, and judgment was accordingly entered. Motion for a new trial was overruled, hence this appeal.

The facts show that appellee owned a railroad extending from the city of Beaumont to the town of Sabine, in Jefferson county, Tex., passing through the Spindletop oil fields some five miles south of the city of Beaumont. That said railroad had a switch track extending from its line of railway at a point about one mile north of the Spindletop oil fields eastward to the Magnolia refinery. That said switch track crossed a public road which extends from the city of Beaumont southward to the Spindletop oil fields, continuing in a southerly direction to the city of Port Arthur and the town of Sabine, and which public road is an extension of what is known as Highland avenue in the city of Beaumont. That Highland avenue is a paved road with smooth hard surface out as far as Spindletop oil fields, and from there on to Port Arthur is shelled. This road or highway is extensively used both day and night by automobiles, trucks, and other vehicles, and has been so used for many years. The road or highway crosses the switch track a few hundred yards north of the Spindletop oil fields almost at right angles—the highway at said crossing running practically north and south and the switch track east and west. The switch track was for the purpose of serving the oil fields, and usually operated but one train a day, that being at about 7:30 or 8 p. m. On September 13, 1930, at about 8 o'clock at night, the railroad servants were backing from the west a string of freight cars along the switch track eastward and across the public road crossing at a rate of about six miles per hour, and appellant James McNeel was riding with one W. L. Hargraves in an automobile which approached the crossing going south just about the time the first freight car was passing over the road crossing. Hargraves was driving his own car, a Whippet Four coupé with rumble seat. He and his two sons, and James McNeel, Wm. McNeel, and Edward Asbury—six of them—three in the front seat and three in the rumble seat, were going fishing to what is known as McFaddin Beach on the Gulf coast. James McNeel was riding in the rumble seat on the right side—the direction from which the train was approaching. Hargraves saw the freight cars on the crossing when he was seventy-five feet to one hundred feet from the crossing. He was driving forty miles per hour. His lights burning all right and his brakes operating all right. When he saw the freight cars on the crossing he put on his brakes and turned to the left—he was driving on the right side of the highway—east to avoid hitting the freight car, and ran off into a ditch, causing the injuries complained of. The highway consisted of paving in the center and gravel on the sides. The paved part was about eighteen feet in width. Hargraves testified that he was going forty miles an hour and that the freight cars were moving pretty slowly when he saw them. When asked if after the accident the locomotive bell was ringing he said that he did not hear it; that he was not listening for the bell; that he was not listening "for anything" before or after the accident. On cross-examination he was asked:

"Q. When you saw that car what did you do? A. I applied my brakes.

"Q. State whether or not they become effective and took hold when you applied them that day. A. They did, yes, sir.

"Q. What was your judgment as to whether you could bring your automobile to a stop and not strike that car, that box car? A. I did not know whether I could or not.

"Q. What was your judgment as to that, your best judgment on it? A. I do not think I could, I tried to.

"Q. As you approached there and saw the car, you applied your brakes, then what did you do with your car? A. I pulled to the left hand side of the road.

"Q. Why? A. So if the train did stop I might be able to go around the end of it.

"Q. And if it didn't stop, what? A. It didn't stop, so I took the ditch.

"Q. State whether the railroad train stopped or not. A. It did not.

"Q. Were you able to bring your car to a stop in the highway and not strike that car? A. No, sir.

"Q. What did you do with your automobile? A. I turned it in the ditch.

"Q. Where was the ditch, on which side of the highway? A. The one I turned into was on the left hand side.

"Q. What did your car strike when it went to the bottom of the ditch, if anything? A. It struck a culvert that goes under the railroad for drainage.

"Q. If you had not turned into the ditch, what would your car have done? A. It would have hit this railroad car.

"Q. Was there any way to avoid hitting it, except to take the ditch? A. No, sir.

"Q. State whether there was any light on the end of that train? A. No sir, I did not see any.

"Q. Was there a man on the back end of that car passing into the highway? A. No, sir.

"Q. State whether or not there was any person stationed there at the highway to pilot or guide that train across the highway? A. No, sir.

"Q. State whether or not there was any sparkler or anything of that kind on the end of that train. A. No, sir, there was no sparkler on it.

"Q. State whether or not there were any men on that train, and if there were, where were they? A. There were some men standing up in this car about probably half way of the car."

And again:

"Q. Now you said you thought if the train stopped you would run around the end of it, that's the reason you cut to the left? A. I did, yes, sir.

"Q. Why did you expect the train to stop? A. I thought maybe, when I first seen it, I thought maybe it was fixing to stop.

"Q. Why did you expect the train to stop when you were not going to stop? A. I did not expect them, I turned over in case they did stop I would go around.

"Q. In other words you could not stop but wanted the train to stop and if it did you would go around? A. In case I could not, I thought maybe if they stopped, I could go around."

And again:

"Q. So, after discovering the train 100 ft. away, you put on the brakes in emergency, you slid your wheels that distance, you got off the pavement and down into the ditch? A. I did not say I skidded 100 ft.

"Q. You put them in emergency from the beginning, didn't you? A. I never got hold of the emergency.

"Q. You were doing your best to stop, weren't you? A. Yes, sir."

In answer as to how fast he was running he answered:

"We were running about 40 miles when we seen this train.

"Q. You continued at that speed until this train came into your vision? A. Yes, sir.

"Q. You think you were 75 or 100 ft. when you saw the train? A. Something like that, yes, sir.

"Q. Then you were going, well, were you looking for a train? A. No, sir.

"Q. Were you watching for a train? A. No, sir.

"Q. Did you look up to the west and east of you to see if a train was coming? A. I was looking straight down the highway.

"Q. Isn't it a fact you were not looking, were not paying any attention and not trying to see anything until it actually moved upon the road, isn't that a fact? A. No, I was looking down the highway and when it got on the highway I seen it.

"Q. There was nothing between you and that car to keep you from seeing it, if you had been looking, was there? A. If I had been looking at the tank I might have seen it, but I was looking down the highway."

In testifying as to how the train appeared to approach the crossing, and his seeing same, he was asked:

"Q. Well, if it didn't, what's your explanation you didn't see it as it moved from behind that tank? Your headlights were burning you were 75 ft. away, your headlights would operate so it would illuminate the sides? A. That car was about the color of the highway.

"Q. But when the train moved out there and all that time, what kept you from seeing it? A. Well, it was just about the color of the highway, didn't show up much."

Appellant James McNeel testified that he was sixteen years old. That he was a guest riding with Hargraves going fishing. That the automobile was going at about forty miles an hour at the time it approached the crossing. That he was riding in the rumble seat on the right-hand side. That when the automobile was within 75 or 80 feet of the crossing he got a glimpse of the freight car backing onto the paved part of the highway. That he did not see the freight car until after Hargraves put on the brakes. That he saw neither a light nor any person on the end of the freight car backing onto the...