Orange & N. W. R. Co. v. Harris

• Decision Date: 09 February 1933
• Docket Number: No. 2177.,2177.
• Citation: 57 S.W.2d 931
• Parties: ORANGE & N. W. R. CO. v. HARRIS et al.
• Court: Texas Court of Appeals

57 S.W.2d 931

ORANGE & N. W. R. CO. v. HARRIS et al.

No. 2177.

Court of Civil Appeals of Texas. Beaumont.

February 9, 1933.

Rehearing Denied March 8, 1933.

Appeal from District Court, Orange County; C. G. Dibrell, Judge.

Action by Luther Harris and others against the Orange & Northwestern Railroad Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

O. R. Sholars, of Orange, W. G. Reeves and Chas. T. Butler, both of Beaumont, and Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

Dies, Stephenson & Dies, of Orange, for appellees.

O'QUINN, Justice.

Appellees sued appellant for damages for personal injuries to Luther Harris resulting from a collision between an automobile in which he was riding and a freight car which partially obstructed a street crossing in the city of Orange. From a judgment for said appellee, this appeal was taken.

Appellees alleged that at about 7 o'clock p. m. on December 16, 1927, Luther Harris and a lady, Nellie Morris, were driving along College street in the city of Orange, Tex., and suddenly collided with a flat car operated by appellant which obstructed and occupied all but about 4 feet of the street crossing where said street crossed the railway line of appellant; that as the result of said collision said Luther Harris was thrown violently against the steering wheel and dash-board of the automobile, thereby causing him the injuries complained of in his petition.

Appellee alleged that his injuries proximately resulted from the following acts of negligence on the part of appellant:

(1) In permitting the flat car to obstruct and remain on the public street crossing for more than five minutes, in violation of an ordinance of the city of Orange, which ordinance was pleaded by appellee. It was further alleged that said act of appellant was negligence per se.

(2) In stationing said flat car on said railroad track so that it obstructed all of said street crossing, but about 4 feet, same being at a point where a great many people traveled in different directions constantly.

(3) In failing to place a sufficiently bright light on or near said flat car or other signal to notify and warn the public and those traveling over said street of the presence of said car on said crossing.

(4) In failing to have some one stationed at or near said flat car to notify and warn persons traveling said street over said crossing of the presence of said flat car.

(5) In failing to use such means and exert ordinary care, under the circumstances, as would prevent persons traveling on and over said crossing from colliding with said flat car.

Appellant answered by general demurrer; special exceptions to paragraphs 3 and 4 of appellee's petition, being that portion wherein was pleaded the ordinance of the city of Orange relative to trains obstructing street crossings for more than five minutes; general demurrer; and a plea of contributory negligence on the part of appellee Luther Harris, consisting of the following:

(a) In driving his automobile upon the public highway with poor or ineffective brakes.

(b) In driving his automobile upon the public highway with poor or insufficient lights.

(c) In driving his car at a dangerous and unlawful rate of speed, and at a rate of speed greater than a person of ordinary prudence would have under the same or similar circumstances.

(d) In driving his car without keeping, or causing to be kept, a proper lookout for obstructions which might be upon the highway.

(e) In driving his car at such speed that it could not be stopped with the means at hand in time to avoid a collision with any object which might first be discovered when it should come within the reasonable view or range of his headlights.

(f) In failing to so control the speed of his car as that it could be stopped with the means at hand within the length of open highway before him which he knew to be free from and clear of obstruction.

(g) In failing to bring his car under proper control when he knew, or in the exercise of ordinary care should have known, that he was approaching a railroad track which might be obstructed by cars.

(h) Violation of an ordinance of the city of Orange making it unlawful to operate an automobile on and over the streets of said city at a greater speed than 12 miles per hour. To this plea a special exception was sustained.

The case was tried to a jury upon special issues, in answer to which they found: (a) That appellant was not guilty of negligence in leaving and permitting the flat car to occupy that portion of College street which it did occupy at the time of the accident; (b) that appellant was guilty of negligence in failing to have some one stationed at or near the flat car at the time of the collision to warn persons traveling the street of the presence of the flat car on said crossing, and that such negligence was the proximate cause of the injuries sustained by the appellee.

By their answers, the jury acquitted appellee of each and all of the acts of contributory negligence charged against him, and awarded him the sum of $10,000 damages.

Judgment was rendered in accordance with the verdict of the jury. Motion for a new trial was overruled, and the case is before us on appeal.

At the close of the evidence, appellant presented to the court its special charge No. 1 for an instructed verdict in its favor, which was refused. Appellant's first nine assignments of error complain of the refusal of this charge as error. This contention is urged upon the ground (a) that no actionable negligence on the part of appellant proximately resulting in appellee's injuries is shown; and (b) that appellee was guilty of contributory negligence as a matter of law, and that such negligence was the sole cause of his injuries.

These assignments are overruled. The record discloses that the collision occurred at the crossing of College street and the Orange & Northwestern Railroad track in the city of Orange. The street was paved, and the paved portion was some 18 feet wide. There were earthen shoulders on each side of the paved part several feet wide. The railroad track crossed the street at right angles and on a level. The railroad employees had been moving two flat cars loaded with creosoted pilings to the city docks. It was what is known as a "twin load"; that is, the piling was so long it required two flat cars on which to load them. In moving this load of piling, one of the flat cars was derailed over the street crossing. In attempting to pull it back from over the crossing, the drawhead of one of the cars pulled out, and the car could not be moved further. The flat car as thus left covered from about 10 to 14 feet of the paved portion of the street crossing. In other words, there were from 4 to 8 feet of the paved portion of the street crossing left unobstructed, according to the estimate of witnesses. Several testified that they measured it, and it was exactly 4 feet. When the flat car could not be further withdrawn from over the street crossing, the train men left it with a white light lantern set on the drawhead of the car, while an employee went to get a red light to place on the end of the car. While this employee was gone after the red light, appellee came along in his automobile driving toward the city proper, at about 14 miles per hour. That was about 7 o'clock p. m., December 16, and it was dark and cloudy, had been raining, but was not then raining. There was an are light, hanging very low, some 54 feet from the crossing in front of a store. Appellee was approaching from the side of the store, and drove under this low-hanging are light going toward the track. He testified that he had not seen the flat car before he drove under the arc light, and that, when he drove under the light, it blinded him so that he could not see objects just ahead of him, and that he continued going toward the crossing at about the rate of 14 miles per hour, and was not aware of the presence of the flat car until his automobile collided with it. He was driving on his right. The flat car obstructed the crossing on his right, and he would have had to make a sharp turn to the left of the street to have gotten to the unobstructed portion of the crossing, which, as before stated, was variously estimated to be from 4 to 8 feet of the paved part of the street. There was no one at the end of the flat car on the crossing to warn him of the presence of the flat car. The street was one very much used at all hours, and the track was in frequent use by the railroad, but very seldom at night. Appellee was well acquainted with the crossing; had been driving over it for years in going from and returning to his home. He testified that, while he was familiar with the railroad track at the crossing and of its use, he had never before seen it in use at night. During the time the employees of the railroad were endeavoring to remove the flat car from the crossing, many persons in automobiles approached the crossing and were flagged and directed around the stalled car, and several automobiles in trying to pass had gotten partially off of the paved portion and bogged down and had to be pushed out. This all occurred in the presence of the employees of appellant. It had actual notice of the close and careful driving that had to be exercised by those passing to get safely around the flat car, even before dark.

The jury acquitted appellant of negligence in leaving the flat car on the crossing for the night, but found it guilty of negligence in failing to have some one stationed at the flat car on the crossing at the time of the collision to warn persons traveling over said crossing of the presence of said flat car. The question of negligence on the part of appellant, proximately causing appellee's injuries, was one of fact, and the pleadings and the evidence raised this issue, and so it must have been submitted to the jury.

Contributory negligence, as a matter of law, can exist only when...