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

• Decision Date: 01 June 1921
• Docket Number: (No. 229-3406.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 231 S.W. 327
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MERCHANT et al.
• Court: Texas Supreme Court

231 S.W. 327

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

(No. 229-3406.)^*

Commission of Appeals of Texas, Section A.

June 1, 1921.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Odelle Merchant and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (212 S. W. 970), and defendant brings error. Reversed and remanded for new trial.

Chas. C. Huff, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for plaintiff in error.

Clark & Sweeton, of Greenville, for defendants in error.

TAYLOR, P. J.

Defendants in error, Mrs. Odelle Merchant and her son, Charles Merchant, Jr., brought this suit against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, plaintiff in error, for damages growing out of the death of Charles Merchant, Sr., husband of one of defendants in error and father of the other. The case was submitted on special issues, and on the responses given judgment was rendered in favor of defendants in error. The Court of Civil Appeals by majority opinion affirmed the judgment. 212 S. W. 970.

This is an ordinary crossing case in which the collision was between an auto truck driven by Charles Merchant and one of plaintiff in error's passenger trains. The negligence alleged is that plaintiff in error failed to give the statutory crossing signals and failed to keep a lookout. The defenses pleaded are the general issue and contributory negligence. The averments of contributory negligence are so framed as to charge negligence on the part of Merchant either in failing to stop, look, or listen on approaching the crossing, or, in the event he knew of the approach of the train, in racing with it to clear the crossing first.

The jury found in response to the special issues submitted that Merchant, before driving his truck upon the track, looked and listened for the approach of train; that plaintiff in error failed to give the statutory signals in not blowing the whistle or ringing the bell at least 80 rods from the crossing and while approaching it, and that the failure to give the signals was the proximate cause of Merchant's death; that a man of ordinary prudence, under the circumstances surrounding Merchant at the time he approached the crossing, would not have stopped his car for the purpose of ascertaining whether a train was approaching. On motion of plaintiff in error requesting a modification of the findings made, the Court of Civil Appeals adopted as its own the jury findings.

It is not disputed that the pike road upon which Merchant was driving runs for 600 yards through open country, obliquely with and across the railway at the crossing upon which he met his death; that the road is slightly elevated, and the railway track is a little down grade in approaching the crossing; that the rails of the track at the crossing projected above the ground about 3 inches; that Merchant at the time of the accident was driving an automobile truck loaded with six barrels of gasoline; that the regular south-bound passenger train was running about 50 minutes late at a speed of about 40 miles an hour. With the exception of a small clump of bushes a little nearer the crossing than the whistling post, there was nothing on the ground to obstruct Merchant's view of the track as he approached the crossing.

It appears from the evidence that Merchant, as he drew near the crossing, steered his truck so as to hit the rails at right angles. W. E. Milsap, a truck driver who was on the pike when Merchant was struck, testified that the crossing was rough; that on the south side of the road where the wheel ordinarily travels the rails were from three to five inches high above the ground; that in order to go over the rail it was necessary to slow up and pull to the extreme left of the road and hit it square. C. H. Combs, who witnessed the accident from the gallery of his home near the crossing, testified that he could not say how far deceased was from the railway when he made the turn to hit the rail square, but that he was "right close to the road"; and, further, "that it (the truck) was going very slow then"; that "just before the train got to the crossing he (Merchant) seemed to release his engine and it peartened up." It is undisputed that the whistle was blown before the crossing was reached. Defendants in error's contention was that it was not blown until too late. Upon this point the testimony conflicts. One of the witnesses testified that "right after the train blew" he heard the crash, and that at about the time he heard the one he heard the other commence. T. J. Freeman, who was across the track from the truck as it approached the crossing, testified that "when it began to blow and I looked at the man and saw him coming with his eyes straight ahead steering for the crossing, I got scared and broke and ran and waved my hand and tried to signal the man in the car to stop." The witness was not definite in his statement as to how far the truck was from the crossing when the blast of the whistle began, but his conclusion was, after stating that he was "somewhat rattled" by the examination, that it must have been between 20 feet and nearer.

There was other testimony not necessary to refer to tending to support the judgment predicated on plaintiff in error's negligence in not giving the crossing signals as required by the statute. The principle question for determination is whether the trial court erred in not peremptorily instructing a verdict for plaintiff in error on the ground that Merchant was guilty of contributory negligence.

Plaintiff in error's first contention in respect to the alleged contributory negligence is that inasmuch as Merchant saw the train as he approached the crossing, and nevertheless attempted to cross the track in front of it, he was, as a matter of law, guilty of negligence.

The conclusion that Merchant saw the train within time to have stopped his truck before going upon the crossing is based upon the following facts and findings, viewed by plaintiff in error as undisputed: That as Merchant approached his view of the train was wholly unobstructed for a distance of at least 600 yards before the train reached the crossing; that Merchant was driving five or six miles per hour and could have stopped his truck in a distance of 16 feet; that when Merchant was 230 feet away from the track the train was 1,500 feet from the crossing; that Merchant, in approaching the crossing, looked for the train (the jury having so found); that having looked he necessarily saw it.

Chief Justice Willson, in dissenting from the majority opinion, says:

"It thus appearing that Merchant looked for...