Miller v. Panhandle & S. F. Ry. Co.

• Decision Date: 26 November 1930
• Docket Number: No. 3486.,3486.
• Parties: MILLER et ux. v. PANHANDLE & S. F. RY. CO.
• Court: Texas Court of Appeals

35 S.W.2d 194

MILLER et ux. v. PANHANDLE & S. F. RY. CO.

No. 3486.

Court of Civil Appeals of Texas. Amarillo.

November 26, 1930.

Rehearing Denied February 4, 1931.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by J. K. Miller and wife against the Panhandle & Santa Fé Railway Company. From a judgment in favor of defendant, plaintiffs appeal.

Reversed and remanded.

Bean & Klett, of Lubbock, for appellants.

Terry, Cavin & Mills, of Galveston, Madden, Adkins, Pipkin & Keffer, of Amarillo, and Wilson, Randal & Kilpatrick, of Lubbock, for appellee.

HALL, C. J.

J. K. Miller and wife, Mrs. Tinie Miller, sued the Panhandle & Santa Fé Railway Company, alleging, in substance: That on or about August 23, 1928, while traveling on state highway No. 7, they undertook to cross appellee's railroad track about two miles north of Justiceburg in Garza county. That at said point said highway and line of railway are parallel running northwesterly and southeasterly. That, in going in a southeasterly direction and before reaching the crossing in question, the highway is on the south side of the railroad. That beyond the crossing and southeast thereof the highway is east of the railroad. That highway No. 7 is about 80 feet wide where it crosses appellee's right of way, and that the right of way is 100 feet wide north of the crossing and 200 feet wide south thereof. That, in crossing the railroad, the highway makes what is called a letter "S" double curve. That, where said highway crosses the appellee's right of way, appellee did not make and maintain an opening or crossing through its right of way 80 feet wide, equal to the width of the highway, nor was such crossing 30 feet wide, but, on the contrary, was only 16 feet in width. That appellee made and permitted a large and dangerous hole to remain on said crossing upon its right of way 6 or 8 feet deep, about the same width, and greater in length. That said hole was at or near the center of the railroad crossing on appellee's right of way and had been there for many months without any effort on the part of appellee to fill it. That said hole is without any guard or warning to keep travelers from running into it except a two-rail guard about 3½ feet high and about 16 feet long, which said guard is on the edge and north side of said hole there being no guard on the other side of the hole. That said guard rail set out nearly in the middle of said crossing, and that, in order to avoid said hole, it is necessary for one to bear considerably to the left, and that the guard rail is a false and deceptive guard and suggests to the traveler that he go to the right thereof. That, on the date above mentioned, about 4 o'clock, a. m., plaintiffs were traveling upon said highway in the dark, and undertook to cross over said railway in their Chrysler five-passenger sedan, going in an easterly direction at a speed of 14 or 15 miles per hour and without notice or warning of the alleged dangerous condition of the crossing, and, in undertaking to follow the highway, they were misled by said guard rail and drove into said hole, overturning the automobile, seriously injuring the plaintiff Mrs. Tinie Miller, and damaging the automobile. The petition describes the injuries sustained by Mrs. Miller, and details the damages resulting to the automobile.

The acts of negligence charged are, in substance, as follows:

(1) That appellee was negligent and violated the laws of Texas in the construction, maintenance, and operation of its roadbed and right of way where it crosses said highway at the point in question, in that appellee did not place and keep the crossing in proper condition for the use of the traveling public.

(2) Appellee did not make and maintain an opening or crossing through its right of way and over its road and through its right of way fence a width equal to that of the 80 feet highway.

(3) Appellee did not make and maintain a crossing of the statutory and reasonable width of 30 feet, but, on the contrary, the crossing was only 16 feet wide.

(4) That the crossing was not made and kept in such condition as to permit of the free and easy passage of vehicles, as required by law and demanded by ordinary prudence and skill.

(5) That appellee was negligent and grossly careless in the construction and maintenance of the sluices, culverts, and ditches in and upon the roadbed and right of way within said crossing, in that appellee made and permitted a large and dangerous hole on said crossing upon the right of way about 6 or 8 feet deep and about the same width and of greater length, said hole being near the center of the railroad crossing on appellee's right of way, and that appellee made no effort to remove or fill it or to eliminate the danger created thereby.

(6) That said hole was without guard or warning to keep travelers from running into it, except a two-rail guard about 3½ feet high on the north side of the hole, and that there was no guard on the east or west sides of the hole to keep one from driving into it.

(7) That the guard rail sets out in the middle or nearly the middle of said crossing, and, in order to avoid the hole and prevent collision with the guard rail, it is necessary for one to bear considerably to the left and out of the natural course and the rail is a false and deceptive guide which leads to the right thereof and into the hole instead of to the left.

(8) That appellee was guilty of negligence and gross carelessness and a violation of the laws of Texas in the construction, maintenance, and operation of said right of way and roadbed within said highway crossing and in allowing and permitting the conditions above described, all of which appellee knew or should have known by the use of ordinary care.

Defendant answered, in substance: That the opening in its right of way at the point in question is 80 feet in width, conforming to the prescribed width of the highway. That said 80-foot strip is public property, and is not the private property of defendant, nor was it at the time of the accident in question. That all portions of said right of way were the property of the public, subject to the right of defendant to cross the same as permitted by law. That, where said highway crosses defendant's railroad, it was graded, and the traveled and used portion thereof was about 16 feet wide on the crown of the road. That the approaches of the graded and used portion of said highway where it crosses defendant's rails were of the same uniform width and condition as the other portions of said roadway, and the elevation and grade of the road on said approaches conformed to the elevation and grade of the road off the right of way. That defendant had provided a smooth planked crossing for said highway of the width of the graded and used portion thereof, as graded and maintained by the state and county authorities. That, in conforming the highway at the crossing point to the width on both sides of the crossing, defendant used due care and complied with the requirements of the law as to keeping that portion of its roadbed in the same condition as the traveled and used portion of said highway. That the law imposed the duty upon defendant to provide for and not interrupt natural drainage along its right of way. That at the crossing there was a culvert under the highway which was not on any portion of defendant's right of way, but which extended under the highway off of the right of way and emptied at a point northeast of defendant's right of way, and that water flowing naturally onto the right of way washed out a drainage ditch which ran over it, and defendant was forced, in the exercise of ordinary care and in order to comply with the law, to install a sluice or culvert under the highway as it approached the rails at said crossing, so that drainage would be provided for the protection of both the track and the highway. That the drainage so provided followed the natural direction of drainage. That such culvert was reasonable and necessary to keep the crossing in good condition for the use of the traveling public. That defendant installed a drainage pipe, which discharged the flowage into the natural channel on the northeast side of the crossing.

Defendant pleaded that plaintiffs were guilty of contributory negligence in the following particulars:

(1) That their automobile was being driven at a high and dangerous rate of speed, early in the morning and before daylight. That the automobile was without lights and was being driven at such a dangerous rate of speed that in approaching the crossing plaintiffs could not take the curve and turn so as to go over the railroad to the left of the grade, and, as a result, their automobile left the graded and used portion of the highway, running into the rough and ungraded portion of the right of way where the rails and ties of the track were exposed. That, had plaintiffs exercised ordinary care, the driver of the car could have kept it on the traveled and graded portion of the road, and that running the car at that point, at such a rate of speed, under the circumstances, was negligence.

(2) That at a point about 800 feet from the crossing, there was a plain and readable sign advising plaintiffs of the curve in the highway at the crossing, but, despite such warning, plaintiffs continued to drive at a high rate of speed until it was too late to stop at the curve, and such failure to heed the warning sign was negligence on the part of plaintiffs.

(3) That plaintiffs were negligent in failing to slow down in approaching the crossing.

(4) That the failure to have the lights burning on the car was negligence.

(5) That the brakes were not in good operating order and were not properly operated by the driver and occupants of the car, and the car could not, therefore, have been stopped when it was discovered that it was leaving the road. That the condition of the brakes and the failure to operate them constituted...