Missouri-Kansas-Texas R. Co. of Texas v. McLain, 6877.

• Decision Date: 29 March 1939
• Docket Number: No. 6877.,6877.
• Parties: MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. McLAIN et al.
• Court: Texas Supreme Court

Page 474

126 S.W.2d 474

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. McLAIN et al.

No. 6877.

Supreme Court of Texas.

March 29, 1939.

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

Action by Annie E. McLain and others against the Missouri-Kansas-Texas Railroad Company of Texas for the death of Charles M. McLain resulting when struck by a skidding automobile at a grade crossing. To review a judgment of the Court of Civil Appeals, 74 S.W.2d 166, which affirmed a judgment for the plaintiff, defendant brought error and Supreme Court adopting the opinion of the Commission of Appeals to which cause was referred, reversed and rendered judgment for the defendant, 105 S.W.2d 206 which judgment and opinion on which it was based were set aside on rehearing and cause was submitted to Supreme Court as on original hearing.

Affirmed.

Charles C. Huff, G. H. Penland, J. M. Chambers, Touchstone, Wight, Gormley & Price, O. O. Touchstone, and Hobart Price, all of Dallas, for plaintiff in error.

Mack L. Vickrey and Carden, Starling, Carden & Hemphill, all of Dallas, for defendant in error.

CRITZ, Justice.

This is a damage suit. It was tried in the 95th District Court of Dallas County, Texas. Mrs. Annie E. McLain, surviving widow of Charles M. McLain, acting on behalf of herself and also on behalf of the two surviving children of herself and her deceased husband, sued Missouri-Kansas-Texas Railroad Company of Texas for damages on account of the death of Charles M. McLain, alleged to have resulted from the negligence of the Railroad. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a judgment for the plaintiffs. The Railroad appealed to the Court of Civil Appeals at Dallas, but the case was transferred to the El Paso Court of Civil Appeals on the equalization of the dockets of those several courts. On final hearing in the El Paso Court the judgment of the district court was affirmed. 74 S.W.2d 166. This Court granted writ of error on application of the Railroad. The McLains also applied for writ of error, and that application was also granted. The case was originally referred to Section A of the Commission of Appeals. In conformity with the opinion of the Commission, which was adopted by this Court, and for which we assume full responsibility, this Court reversed the judgments of the two lower courts and rendered judgment for the Railroad. 105 S.W.2d 206. On motion for rehearing filed by Mrs. McLain et al. this judgment and the opinion upon which it was based were set aside, and the cause was submitted to the Court itself. It is now before us for consideration as on original hearing.

We shall not attempt to detail the pleadings of the parties. It is sufficient to say that they in great detail cover the questions submitted to the jury. According to the record before us, viewed in the light of the findings of the jury, the facts of this case are substantially as follows:

Charles M. McLain, who will hereafter be referred to as McLain, was killed early on the morning of January 11, 1931, at a railroad crossing in the city of Dallas, Dallas County, Texas. The crossing in question was at the point where the track of this Railroad crossed what is known as Greenville Avenue. Greenville Avenue was a street in the city of Dallas. Also, it was a link in a paved public highway, and was a much traveled thoroughfare. On the early morning of the date above mentioned the Railroad stopped one of its freight trains on its track above mentioned so that it extended across and blocked the street. The blocking of such street in the manner mentioned stopped travel thereon at the point of blocking, both as to vehicles and as to pedestrians.

In blocking the above street the Railroad was guilty of negligence, which resulted in McLain's death, in the following particulars:

In stopping such train across such street; in failing to cut such train at the point where it was blocking the street; in failing to have someone at the blocked street with a lighted lantern to warn the traveling public of the dangers incident thereto; in failing to install, prior to McLain's death, a light at such crossing to aid travelers in observing whether or not a train was obstructing the street; and in standing such train across such street for more than five minutes in violation of the penal laws of this State.

As we gather from the record and the verdict of the jury, the circumstances of McLain's death were as follows:

On the early morning of January 11, 1931, McLain was returning to his home from his place of employment. In so returning he was walking on the street in question here. When he reached the...