Orange & N. W. R. Co. v. Harris
| Decision Date | 15 January 1936 |
| Docket Number | No. 6561.,6561. |
| Citation | 89 S.W.2d 973 |
| Parties | ORANGE & N. W. R. CO. v. HARRIS et al. |
| Court | Texas Supreme Court |
Charles T. Butler and W. G. Reeves, both of Beaumont, and Andrews, Streetman, Logue & Mobley and T. A. Slack, all of Houston, for plaintiff in error.
Dies, Stephenson & Dies, of Orange, for defendants in error.
Luther Harris recovered judgment against the Orange & Northwestern Railroad Company for the sum of $10,000, as a result of an injury received by him in a collision, while riding in an automobile in the city of Orange, with a flatcar belonging to the railroad company. The Court of Civil Appeals at Beaumont by a divided court affirmed the judgment of the trial court. 57 S.W.(2d) 931; Id., 59 S.W. (2d) 217. We refer to the majority and dissenting opinions for a more detailed statement of the facts and issues involved.
The case was submitted to the jury on special issues. The jury found that the railroad company was not negligent in leaving the car on the crossing, and that Harris was not guilty of contributory negligence. The jury also found that the railroad company was negligent in failing to station a flagman at the derailed car to warn persons using the street of its presence on the crossing. Counsel for the railroad company requested that the issue of unavoidable accident be submitted to the jury for determination. The trial court refused to submit such issue. Writ of error was granted upon the proposition that the evidence raised the issue of unavoidable accident, and that the trial court erred in failing to submit such issue to the jury.
The material facts are summarized as follows: The collision occurred at the crossing of College street and the Orange & Northwestern Railroad track in the city of Orange at about 7 o'clock p. m. on December 6, 1927. The street was paved, and the paved portion was some 15 feet wide. The railroad track crossed the street at right angles, and on a level. The railroad employees had been moving two flatcars loaded with creosote pilings to the city docks. It was what is known as a "twin load," which requires two flatcars on which to load it. In moving this load one of the flatcars was derailed over the street crossing. In attempting to pull it back from over the crossing, the draw-head of one of the cars pulled out, and the car could not be moved farther. The flatcar thus left covered part of the paved portion of the street crossing. When the flatcar could not be removed from over the street crossing, the trainmen left it with a white-light lantern set on the draw-head 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, Harris came along in his automobile, driving at about 14 miles per hour. It had been raining, and the night was dark and cloudy. There was an arclight, hanging very low, some 54 feet from the crossing, in front of a store. Harris was approaching from the side of the store, and drove under this low-hanging arclight going toward the track. He testified that he had not seen the flatcar before he drove under the arclight, and that when he drove under the light it blinded him so that he could not see objects ahead of him, and that he continued going toward the crossing at the rate of 14 miles per hour, and was not aware of the presence of the flatcar until his automobile collided with it. He was driving on his right. There was no one at the end of the flatcar on the crossing to warn him of the presence of the flatcar. The street was one very much used at all hours, and the track was in frequent use by the railroad company, but very seldom at night. Harris was well acquainted with the crossing, and had been driving over it for years in going from and returning to his home. During the time employees of the railroad were endeavoring to remove the flatcar from the crossing, many persons in automobiles approached the crossing and were directed by persons not in the employment of the railroad company around the derailed car, and several automobiles in trying to pass had gotten partially off the paved portion, and had to be pushed out. This was done until the space was open enough for cars to pass. The nature of the crossing as it usually existed was not such as to require the constant stationing of a flagman at it to warn persons of danger.
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