Missouri-Kansas-Texas R. Co. v. Chesher

• Decision Date: 20 February 1962
• Docket Number: No. 7352,MISSOURI-KANSAS-TEXAS,7352
• Citation: 354 S.W.2d 645
• Court: Texas Court of Appeals
• Parties: RAILROAD COMPANY, Appellant, v. Jewell D. CHESHER, Appellee.

Page 645

354 S.W.2d 645

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Jewell D. CHESHER, Appellee.

No. 7352.

Court of Civil Appeals of Texas, Texarkana.

Feb. 20, 1962.

Rehearing Denied March 13, 1962.

Howell, Freels, Elliott & Nall, Denison, G. C. Butler, Bonham, for appellee.

White & Fair, Dallas, Cunningham, Cole & Southerland, Bonham, for appellee.

DAVIS, Justice.

This is a suit for damages as the result of a car being hit by a train in which the driver of the car and his four children, three girls and one boy, were killed. Appellee-plaintiff, Jewell D. Chesher, a widow, and plaintiffs Thomas H. Chesher and Tessie Chesher, husband and wife, and father and mother of James Thomas Chesher, deceased, sued the appellant-defendant, Missouri-Kansas-Texas Railroad Company. Plaintiffs, Thomas H. Chesher and Tessie Chesher, filed a disclaimer and were not awarded any damages. The collision occurred at a railroad crossing on Hamilton (Holmes) Street in the town of Trenton, Fannin County, Texas. The appellee, as surviving spouse and mother, alleged damages for the death of her husband, James Thomas Chesher, and the death of the four children.

The collision occurred at approximately 8:00 o'clock P.M., in the evening of December 6, 1958. The automobile in which the deceased were riding was a 1951 two-door Chevrolet. The automobile was being driven by James Thomas Chesher from Grand Prairie, Texas, to the home of his parents in Trenton, Texas. His four children were riding on the back seat of the car. A television set was riding on the right side in the front seat. The automobile approached the railroad crossing from the Southwest. The train of the appellant, the Texas Special passenger train, approached the crossing from the Southeast. The front of the automobile was across the railroad track at the time it was hit by the train. The collision killed Mr. Chesher and the four children, instantly.

According to the allegations and the proof, the crossing at which the collision occurred is a paved street and a main artery of traffic to and from the town of Trenton. It is a heavily traveled roadway to and from the town square for traffic moving northeasterly and southwesterly. The street is narrow, and connects with a Farmto-Market road on the southwest side of the town. There are numerous obstacles to a clear view of the railroad track, such as houses, buildings, trees, utility poles, shrubberies, and a depot located adjacent to or very near the east side of Hamilton Street and near the appellant's main line track on which the train involved in the collision was traveling in a northwesterly direction. The obstructions are so situated that a person riding in an automobile at night, and using said Hamilton Street, as were the deceased, can hardly see anything on the main line of the railroad track until they are within a few feet of the appellant's main line track. The street, when very close to appellant's main line track, approaching from the southwest, after it enters the appellant's main line track, turns sharply to the right and on an upgrade of approximately four to six feet. Such a condition within the appellant's main line track requires a person using the same to use more than ordinary care to maneuver an automobile on the street. The evidence shows that some 400-500 feet before the street gets to the railroad tracks is a rough and curving thoroughfare. There are three railroad tracks on Hamilton Street; one, the main line track, and two spur, or switch, or house tracks. The main line track is in the center, with a spur, or switch, or house track on either side. The deceased had to pass one track (called a house track) before reaching the main railroad track. The rails on the main line of the road surface protruded above the surface. Considering all the facts together, on the night of the collision, it was a rough and dangerous crossing.

The collision occurred on Saturday night when the town lights and other lights in the business district would reasonably be calculated to reflect in the face of a traveler in an automobile, such as the deceased, as the car approached the town. A 'Norther' was in progress at the time of the collision, and the weather was extremely cold and below the freezing point. The wind was blowing from the North. The appellant had permitted an old shed or barn to exist for quite some time on the right-of-way, and on this particular night, loose tin was flapping and noisily knocking in the wind. The train was traveling at a high rate of speed, was considerably behind schedule, and apparently trying to make up lost time at the time of the collision. The train was running with the throttle wide open.

The jury answered all of the special issues in favor of the appellee. The pleadings supported the issues, and the evidence is sufficient to support the answers.

According to the record, it took about thirteen days to try the case. The case was fully and carefully tried.

The jury specifically found that the railroad crossing at the time and place and on the occasion in question was extra-hazardous. That the appellant was negligent in not having a warning system capable of warning the traveling public. The jury convicted the appellant of operating its train at a high and excessive rate of speed; of failure to sound a signal as required by law, and failure to ring a bell as required by law. The jury also found the appellant guilty of failure to slow the speed of the train prior to entering the crossing; failure to keep a proper lookout, and failing to continuously sound the signal until the train was past the crossing. The jury likewise found the deceased not guilty of any act of contributory negligence including any violation of Art. 6701D, Sec. 86, Vernon's Ann.Civ.St., as plead by the appellant.

Damages were found by the jury in favor of the appellee as follows: For the loss of the car $350.00; for burial expenses for the entire family $2,085.00; damages because of the loss of her husband, James Thomas Chesher, $42,500.00; damages for the loss of the three girls at $4,917.00 each (a total of $14,751.00); damages for the loss of the boy at $7,750.00, a total of $67,436.00. Judgment was entered accordingly.

On January 12, 1961, appellant filed an amended motion for new trial, and the court set the same for hearing on February 9, 1961. On February 9, 1961, a hearing was had and the court took it under advisement. Forty-five days after January 12, 1961 (February 26, 1961) came on a Sunday. Under Rule 4, Texas Rules of Civil Procedure, the motion was not overruled by operation of law until February 27, 1961. On February 27, 1961, the court, in open court after due notice to all parties announced that he was going to overrule the amended motion for new trial. The court signed an order overruling the same on February 28, 1961, in which it is stated that the amended motion for new trial was overruled on February 27, 1961. According to Rule 329b, T.R.C.P., an amended motion for new trial can not be undetermined after the 45 day period as provided by the rule unless it falls on Saturday, Sunday, or a legal holiday. In case the 45th day falls on Saturday, Sunday, or a legal holiday, the amended motion for new trial is not overruled by operation of law until the first day after Sunday or the legal holiday. Fulton et al. v. Finch (Tex.S.Ct.), 346 S.W.2d 823. Therefore, the order signed on February 28, 1961, is void and has no force or effect whatever. The supersedeas and appeal bond being filed on March 24, 1961, less than 30 days after the amended motion was overruled by operation of law, it is necessary to...