Muniz v. Panhandle & Santa Fe Ry. Co.

• Decision Date: 19 December 1955
• Docket Number: No. 6529,6529
• Parties: Pablo MUNIZ et al., Appellants, v. PANHANDLE & SANTA FE RAILWAY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 809

285 S.W.2d 809

Pablo MUNIZ et al., Appellants, v. PANHANDLE & SANTA FE RAILWAY COMPANY, Appellee.

No. 6529.

Court of Civil Appeals of Texas, Amarillo.

Dec. 19, 1955.

Rehearing Denied Jan. 23, 1956.

Shaw & Daniel, Casey Charness, Lubbock, for appellants.

Lewis Jeffrey, Amarillo, McWhorter, Cobb & Johnson, Lubbock, for appellee.

PITTS, Chief Justice.

This appeal is from a single judgment rendered in three separate suits filed in the trial court and consolidated for trial by the trial court. The cases each arose out of the same collision which occurred between a Panhandle & Santa Fe Railway freight train and a 1950 Chevrolet automobile about 4:30 o'clock p. m. on August 22, 1953, at the intersection of the railroad track with Baylor Street in the north edge of the City of Lubbock while the train was proceeding south and the automobile was proceeding east on Baylor Street. There were three occupants in the automobile at the time of the collision, namely, Pascual Muniz, age 27 years, and his brother, Gilbert Muniz, age 19 years, and Rual Cervantes, age 20 years, and only Gilbert Muniz survived the collision, and he was injured, the other two named occupants having been killed as a result thereof. The proper surviving relatives of the two who were killed and Pablo Muniz, the father of Gilbert Muniz, as next friend of him as a minor, all as appellants herein, sued appellee, Panhandle & Santa Fe Railway Company, for a total sum of $307,500, as a result of alleged damages by reason of the collision.

The cases were jointly tried to a jury beginning December 6, 1954, but an instructed verdict against appellants and for appellee resulted after the evidence closed and judgment was accordingly rendered, from which appellants have perfected an appeal. Appellants present three points of error contending that negligence, which proximately caused the damages, was shown on the part of appellee's agents; that the evidence raised discovered peril issues; and that those two occupants of the automobile not driving were passengers therein for whose injuries appellee is liable because of the negligence of its agents, which negligence was a proximate cause of the damages claimed.

Appellants did not plead or clearly establish by the evidence who was driving the automobile at the time of the collision but we do not consider such a matter a material question in view of the disposition being made of the appeal. Appellants did plead that appellee's agents were operating the train at an excessive rate of speed without ringing the bell or blowing the whistle for the crossing at the time of the collision and that appellee's railroad crossing where the collision occurred was an extra-hazardous crossing without having adequate warning signals placed there in addition to the standard railroad cross-arm sign. Appellee joined issue with appellants in the matters pleaded and further pleaded special exceptions and a general plea of negligence as a matter of law on the part of all the occupants of the automobile but especially the driver thereof, which negligence was a proximate cause of the injuries that resulted in the alleged damages.

The record reveals that the Muniz Brothers left their father's farm near Shallowater about 2:00 o'clock p. m. on the day of the collision in their father's automobile. Their mother testified that Pascual was driving when they left the farm. They drove to Shallowater and from there to Lubbock, a distance of about 12 miles. Little information is given us about where they went or what happened between the time they left the farm and the time of the collision two and one-half hours later. It seems Gilbert Muniz had a lapse of memory for several days as a result of his injuries received at the collision and some of his testimony is vague about what happened during the two and one-half hours immediately before the collision occurred. He testified that his older brother, Pascual, was going to Lubbock on that occasion to make some payments to Mr. Needles and that he went along with him; that they stopped at a filling station at some place and changed a tire; that they picked up Rual Cervantes at some place before the collision occurred but he did not know where; that Rual Cervantes had been drinking and was under the influence of intoxicants; that he believed all three of them were riding in the front seat when the collision occurred and he believed Pascual was driving at the time of the collision but he was not positive about either. Further testimony of Gilbert will be referred to later herein. The record further reveals that the freight train composed of 33 box cars and a steam engine was running from Amarillo to Slaton and the collision occurred soon after the train reached the north edge of Lubbock. The engineer was riding in a seat on the right-hand side of the engine cab with a window at his right and a window in front of him, giving him a view of the right-of-way in front of him through the front window and a view out of his window on the right. The engineer was charged with the duties of operating the train, observing designated signs, traffic signals and limited speed rates, ringing the bell and blowing the whistle at road and street crossings, controlling the cab brakes if and when their use may be needed and performing other duties in connection with operating a train. At the time of the collision the fireman and head brakeman were also riding in the engine cab on the left-hand side thereof across from the engineer with the fireman seated in front of the head brakeman. Neither of them saw the approaching automobile on the occasion in question and knew nothing about the collision until the engineer put on the emergency brakes and told them an automobile had hit the side of the engine. Avenue Q extended north and south immediately along the west side of the railroad and likewise intersected and crossed Baylor Street immediately west of the railroad-Baylor Street intersection. Baylor Street was paved but Avenue Q was not paved. Immediately northwest of the intersection of Baylor Street and Avenue Q was located a small neighborhood gracery store facing south and adjacent to Baylor Street. It bore a sign as 'Save A Nickel' store and was known as such. There is evidence to the effect that the said store is located 128 feet west and a little north from the point of collision of the automobile with the train. There is likewise evidence to the effect that Avenue Q is about 32 feet wide, is about 52 feet west of the railroad and that it is about 40 feet from Avenue Q to the Save A Nickel store, making a total of 124 feet from the point of the collision to the store. The automobile with the three occupants therein stopped in front of the Save A Nickel store just before the collision occurred when Gilbert Muniz went in the store and purchased some cigarettes and chewing gum. While the automobile was parked in front of the said store the view of its occupants was obstructed by the store building from the north part of the railroad from which direction the train was approaching some distance down the track. Likewise the view of the train operators was obstructed at such time from the automobile by the store building. When Gilbert Muniz returned to the sutomobile and there joined the other two occupants, they immediately drove east some 130 feet on Baylor Street, across Avenue Q, to the point of the collision with the moving train. There are photographs in evidence made by an experienced photographer correctly reflecting, according to the evidence, the existing physical conditions surrounding the intersection at the point of collision, as well as the point of contact between the automobile and the train, and such photographs were identified by witnesses who used them in giving testimony in connection with the collision. According to the evidence, when the automobile left the store and cleared the southeast corner of the same, it was then more than 100 feet across Avenue Q to the place of the collision and there was nothing, looking to the north, between the occupants of the automobile and the train to obstruct the view of the said occupants from the approaching train and surely the driver of the automobile had not gained enough speed from the stop made at the store to lose control of the automobile. There was nothing while they traveled a distance of more than 100 feet to prevent the occupants of the automobile from looking north through the open spaces down Avenue Q and seeing the approaching train. At the point of intersection of the railroad and Baylor Street the surface of the pavement around the train tracks is level with clear vision ahead. The train came up a slight rise as it approached the intersection and there was a small embankment immediately north of the intersection along the west side of the railroad tracks, but at its highest place for only a short distance the embankment was only a few high and hid no more than the wheels and the running gear under the box cars and the lower part of the engine that made up the train. The remainder of the train at the point of embankment was plainly visible and practically all of the train was visible for a distance of a quarter of a mile or further north of the point of collision.

Gilbert Muniz testified that they parked the automobile in front of the Save A Nickel store for him to purchase the cigarettes and chewing gum; that he saw the railroad crossing when they stopped at the store; that as he stepped around the corner of the grocery store he could see north down the railroad track to the pumice block factory or concrete block factory which shows in the photographs to be on the east side of the railroad and other evidence reveals that it is a quarter of a mile or further from the point of collision. Gilbert Muniz further testified that both he and his brother, Pascual, had been down Baylor Street and had crossed the railroad crossing many times...