Missouri, K. & T. R. Co. v. Long

• Decision Date: 11 March 1927
• Docket Number: (No. 7079.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 293 S.W. 184
• Parties: MISSOURI, K. & T. R. CO. OF TEXAS v. LONG.
• Court: Texas Court of Appeals

293 S.W. 184

MISSOURI, K. & T. R. CO. OF TEXAS v. LONG.

(No. 7079.)^*

Court of Civil Appeals of Texas. Austin.

March 11, 1927.

Rehearing Denied March 20, 1927.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

Action by Mrs. S. H. Long, for herself, as widow, and for her children, against the Missouri, Kansas & Texas Railroad Company of Texas for the death of S. H. Long. Judgment for plaintiff, and defendant appeals. Affirmed.

C. C. Huff and J. M. Chambers, both of Dallas, and Tyler & Hubbard, of Belton, for appellant.

Winbourn Pearce and W. W. Saulsbury, both of Temple, for appellee.

BLAIR, J.

S. H. Long was killed when an automobile he was driving ran into appellant's freight car passing over the grade crossing at the intersection of the Meridian highway and appellant's railroad, about 100 feet southeast from the city limits of Temple, Tex. His widow, for herself and their children, sued appellant for the resulting damages, alleging in substance that the Meridian highway was a much-used thoroughfare, and that the crossing was a more than ordinarily dangerous one for all travelers, and especially so for automobile travelers in the nighttime: First, because it was in a depression and flat, the highway approaching it downgrade both from the east and the west; and, second, because only a few feet to the west of it electric lights in the city of Temple were constantly burning at night, and were faced by automobile drivers going toward Temple as deceased was, which conditions rendered it very difficult for them to see the crossing, or a freight train or other cars passing over it on a dark night in time to avoid running into them. Long's death was alleged to have been caused by the negligent failure of appellant to keep a light at the crossing so that travelers could see it, or see any freight train or other cars which might be on it in the nighttime.

Appellant filed a general denial and a plea that deceased was guilty of contributory negligence in several particulars which caused his death.

Four of the five issues submitted, and the jury's answers thereto, are as follows:

"1. Do you find from a preponderance of the evidence that the conditions surrounding the crossing in question were such as to render that crossing more than ordinarily dangerous as a nighttime crossing?" Answer: "Yes."

"2. Do you find from a preponderance of the evidence that the defendant, in failing to have a light at the crossing in question, was guilty of negligence?" Answer: "Yes."

"3. Do you find from a preponderance of the evidence that such negligence of the defendant was a proximate cause of the injuries to the deceased, S. H. Long?" Answer: "Yes."

"4. Do you find from a preponderance of the evidence that the deceased, S. H. Long, failed to keep a proper lookout, or was driving a car with insufficient headlights, or with insufficient brakes, or was driving the automobile at a high rate of speed, without sufficient brakes to stop the car within the distance the headlights would light the road; or that he failed to stop the automobile within the distance he would have discovered the presence of the train on the road by the headlights in the exercise of ordinary care; and that in either of said particulars, he was guilty of contributory negligence?" Answer: "No."

By the fifth issue the jury found damages in the sum of $17,500, for which sum the court rendered judgment for appellee.

The appeal is predicated upon sixteen propositions, eight of which, Nos. 1, 2, 3, 5, 6, 10, 11, and 12, complain in one way or another that the jury's answers to issues 1 and 2 are without any evidence to support them, or to sustain the judgment based thereon. That is, it is contended: First, that there is no evidence showing a more than ordinarily dangerous nighttime crossing; and, second, that "since the laws of the state do not require lights to be maintained at grade crossings of public roads and railroads * * * unless conditions were such as that without a light the crossing would be thereby rendered more than ordinarily dangerous," appellant was therefore not guilty of negligence for failure to maintain a light. These propositions correctly state the tests or rules which fix liability and control the case.

The Supreme Court held, in M., K. & T. R. R. Co. v. Magee, 92 Tex. 616, 50 S. W. 1013, that —

"If that particular place was so peculiarly dangerous that prudent persons could not use the public road in safety, unless the company employed * * * extraordinary means, * * * then, in such event, it was incumbent [upon the company] to employ such extraordinary means."

In the case of Tisdale v. Ry. Co. (Tex. Com. App.) 228 S. W. 133, it is held:

"Whether or not any given state of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger on extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds."

The authority 33 Cyc. 944, holds:

"Whether or not it is negligence to fail to provide such flagman, lights, or gates is a question for the jury, depending upon the circumstances of the particular case."

The eight propositions under consideration simply attack the sufficiency of the evidence to support the verdict and judgment, admitting the tests or rules announced as the proper ones to fix liability. We are clear in the view that while the evidence may not conclusively establish a more than ordinarily dangerous nighttime crossing, it abundantly supports the jury's finding that it is so; and also supports the jury's finding on the issues of negligence and proximate cause.

"In determining whether the evidence is sufficient, an appellate court must reject all the evidence contrary to the verdict and consider only evidence sustaining it." Fort Worth Benev. Assn. v. Jennings (Tex. Civ. App.) 283 S. W. 910; also, Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696.

The Meridian highway is a main thoroughfare traversing this state, and is much used for all kinds of travel, and especially for automobile travel. The crossing here involved intersects appellant's tracks practically at a right angle, and is about 100 feet southeast from the city limits of Temple. The only signal, notice, or devise maintained by appellant at this crossing to warn the traveling public of the proximity of the crossing, or of a freight train or other cars that might be passing over it in the nighttime, is the ordinary cross sign required by statute to be maintained at all grade crossings. It is located to the right of the highway and served but little purpose, if any, as a warning to automobile travelers in the nighttime either of the proximity of the crossing, or that unlighted freight trains or other cars might be passing over it. The crossing is in a depression or flat, the highway approaching it downgrade both from the east and west, as is shown by the following drawing:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Both the drawing and the testimony show that automobile travelers, going toward Temple as deceased was, face north until within about 700 feet of the crossing, where they turn west. At this point the highway grade is 10.25 feet above the level of the crossing. The grade is then downward to within about 200 feet of the crossing, where it becomes flat or level with it, and continues so over and west of the crossing about 100 feet, where it again rises and continues upgrade about 800 feet to a right-hand turn into a street in Temple, and at this point reaches a height of 23.2 feet above the level of the crossing. Located on this high elevation are various electric lights in the city of Temple, such as porch, garage, and street lights, which constantly burn at night, and which are directly faced by an automobile driver immediately upon his making the turn to the west, the lights being then about 1,500 or 1,800 feet away. So that when these lights are first faced the driver's direct line of vision is from an elevation of 10.25 feet plus the added height to his position in the automobile to the lights on the high elevation west of the crossing, the lights being 23.2 feet plus the added height to where they are hung or fixed, over and above the level of the crossing, and this, of course, causes him to look at them above and over the crossing and above and over any freight train or other cars that might be passing over it.

More than 20 witnesses, peace officers, doctors, farmers, a minister, and several business men who live in or south of Temple, some of them having used the crossing for many years, testified to the condition detailed, and further that immediately upon making the turn to the west and to the crossing an automobile driver's attention is in some manner attracted to these lights which he directly faces. Some of them thought that the halo of light beyond and above the level of the crossing, though not blinding, in a way accentuated the darkness of the depression and flat through which the railroad tracks ran. Others expressed the view that men are naturally prone to look at the lights of a city as they are approached from a distance, and that bright lights on a dark night ordinarily attract the attention of men to them. They also testified that just at the moment the automobile driver's attention is first attracted to these lights, he immediately turns downgrade, and continues so until within a very short distance of the crossing; and that these conditions, and the further fact that the state laws require headlights on automobiles to be focused downward, render it very difficult to see either the crossing, or a freight train, or other cars passing over it, until so close that it is very difficult to stop in time to avoid running into them on a dark night. The highway is constructed with tarvia topping, which is a dark material. The box car into...