Missouri, K. & T. Ry. Co. of Texas v. Trochta

• Decision Date: 08 December 1915
• Docket Number: (No. 5529.)
• Citation: 181 S.W. 761
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. TROCHTA et al.
• Court: Texas Court of Appeals

181 S.W. 761

MISSOURI, K. & T. RY. CO. OF TEXAS v. TROCHTA et al.

(No. 5529.)

Court of Civil Appeals of Texas. Austin.

December 8, 1915.

Rehearing Denied January 12, 1916.

Appeal from District Court, Williamson County; C. A. Wilcox, Judge.

Action by Marie Trochta and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Wilcox & Graves, of Georgetown, and Spell & Sanford, of Waco, for appellant. A. E. Wood, of Granger, and Bryan, Stone & Wade, of Ft. Worth, for appellees.

Findings of Fact.

JENKINS, J.

This is a suit to recover damages on account of the death of Jos. Trochta, occasioned by the alleged negligence of appellant. The case was submitted to the jury upon special issues, which, together with the jury's answers, are as follows:

"Question No. 1. On the 13th day of August, 1913, as the defendant's west-bound passenger train was approaching the public road crossing where the said Joseph Trochta was killed, did the engineer in charge of said engine cause the whistle on the engine to be sounded at least eighty rods before reaching said crossing? A. No.

"Question No. 2. If you have answered the foregoing question in the negative, then answer this question: Was the failure (if any) to sound said whistle the direct cause of the collision, and consequent death of said Trochta? A. Yes.

"Question No. 3. Upon said occasion did the employés in charge of said engine ring the bell upon said engine from a point at least 80 rods from said crossing continuously until such crossing was reached? A. Yes.

"Question No. 4. If you have answered the preceding question in the negative, then answer this question: Was the failure (if any) to ring said bell the direct cause of the collision, and consequent death of said Trochta? No answer.

"Question No. 5. Upon said occasion, as said train was approaching said crossing, was said train running at an unreasonable and dangerous rate of speed? A. Yes.

"Question No. 6. If you answer the preceding question in the affirmative, then state whether the running of said train at such rate of speed (if it was so run) constituted negligence on the part of the defendant, as the term negligence has been hereinabove defined? A. Yes.

"Question No. 7. If you have answered the two preceding questions in the affirmative, then answer this question: Was the speed of said train the direct cause of the collision, and consequent death of said Trochta? A. Yes.

"Question No. 8. Prior to and at the time of the death of the said Trochta, did the defendant permit branches of trees growing upon the right of way to extend over the north boundary line of its right of way, and east of the crossing? A. Yes.

"Question No. 9. If you have answered the preceding question in the affirmative, then answer this question: Did the permitting of branches of such trees to extend over the right of way constitute negligence on the part of the defendant? A. Yes.

"Question No. 10. If you have answered the two preceding questions in the affirmative, then answer this question: Was the fact (if it was a fact) that branches of trees extended over the right of way of the defendant the direct cause of the collision, and subsequent death of said Trochta? A. Yes.

"Question No. 11. Did the employés in charge of the engine drawing said train, when said engine was within about 100 yards of said crossing, see the said Trochta driving upon said crossing? A. Yes.

"Question No. 12. If you have answered the preceding question in the affirmative, then did the engineer in charge of said engine realize the danger of said Trochta? A. Yes.

"Question No. 13. If you have answered the two preceding questions in the affirmative, then answer this question: Was the engineer in charge of said engine guilty of negligence in failing to sound the whistle of said engine upon said discovery of said Trochta's position? A. Yes.

"Question No. 14. Was the failure of the engineer to sound said whistle at such time the direct cause of the collision, and consequent death of said Trochta? A. Yes.

"Question No. 15. If you have answered question No. 11 in the negative, then answer this question: Were the employés in charge of said engine guilty of negligence in failing (if they did fail) to see said Trochta while said engine was at a point about 100 yards east of the crossing? No answer.

"Question No. 16. If you have answered the preceding question in the affirmative, then answer this question: Was the failure (if any) of the employés in charge of said engine to see said Trochta at a point 100 yards east of said crossing the direct cause of the collision, and consequent death of the said Trochta? No answer.

"Question No. 17. You are instructed that if under the law and the facts of this case, the plaintiff should be entitled to recover damages against the defendant company, then the measure of such damages would be such sum as, if paid to them in cash at this time, would reasonably compensate them for the pecuniary loss (if any) which the said plaintiffs have sustained by reason of the death of said Trochta; and, in assessing the damages (if any) to which said Franciska Trochta would be entitled, you should take into consideration the reasonable pecuniary value (if any) of the nurture, care, and admonition which the said Franciska Trochta would have received from her father during her minority, had he lived. But you are further instructed that in assessing such damages you cannot take into consideration any grief or sorrow on account of the death of said Joseph Trochta, or loss of his society, affection, or companionship. You are further instructed that you will apportion the damages (if any) between the plaintiffs Marie and Franciska Trochta in such proportions as you may find to be just and fair. Now, bearing in mind the above instructions, you will answer these questions: (a) What amount of pecuniary loss (if any) has been sustained by the plaintiff Mrs. Marie Trochta by reason of the death of the said Joseph Trochta? A. $4,000. (b) What amount of pecuniary loss (if any) has been sustained by the plaintiff Franciska Trochta by reason of the death of the said Joseph Trochta? A. $3,000.

"Question No. 18. Did the said Joseph Trochta before driving upon the crossing, upon the occasion of the collision with said train, look or listen or do any act in order to discover whether or not the train was approaching said crossing? A. No.

"Question No. 19. If you have answered the preceding question in the negative, then answer this question: Did the failure of said Trochta to endeavor to discover whether or not a train was approaching said crossing (if he did so fail) constitute negligence on the part of said Trochta? A. No.

"Question No. 20. If you have answered the preceding question in the affirmative, then state whether such negligence (if any) on the part of said Trochta caused or assisted in causing the collision which resulted in his death? Not answered."

The evidence is sufficient to sustain the findings of the jury as to questions Nos. 1, 2, 3, 7, 8, 11, 12, 17, and 18, and we adopt said questions and answers as our findings of fact herein. Our reasons for not adopting the remaining questions and answers will be stated in the opinion herein.

Opinion.

The uncontradicted evidence as to speed was that the train was running some 30 to 35 miles an hour, and that such was its usual speed at that place. The fact that a passenger train was running at the rate of 30 to 35 miles an hour does not constitute negligence per se. The statute does not prescribe the speed at which trains shall be operated. McDonald v. Railway Co., 86 Tex. 7, 22 S. W. 939, 40 Am. St. Rep. 803. If the train in question was being operated at a dangerous speed at the time of the injury, it was by reason of the conditions there existing, viz., that it was a public road crossing, and that the train was partially hid by trees and brush from those who were traveling upon the public road. Railway Co. v. Rogers, 91 Tex. 56, 40 S. W. 956. We do not think that the evidence upon this point is sufficient to sustain the finding of the jury, even though it be conceded that question No. 7, was correctly answered.

The evidence shows that appellant permitted one or two small trees to grow up in its right of way, but these would not have prevented the train approaching the crossing being...