Panhandle & S. F. Ry. Co. v. Willoughby

• Court: Texas Court of Appeals
• Writing for the Court: Martin
• Citation: Panhandle & S. F. Ry. Co. v. Willoughby, 58 S.W.2d 563 (Tex. App. 1933)
• Decision Date: 08 February 1933
• Docket Number: No. 3956.,3956.
• Parties: PANHANDLE & S. F. RY. CO. v. WILLOUGHBY.

58 S.W.2d 563

PANHANDLE & S. F. RY. CO. v. WILLOUGHBY.

No. 3956.

Court of Civil Appeals of Texas. Amarillo.

February 8, 1933.

Rehearing Denied April 5, 1933.

Appeal from District Court, Hutchinson County; E. J. Pickens, Judge.

Action by Ethel Smith Willoughby against the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Terry, Cavin & Mills, of Galveston, Hoover, Hoover & Cussen, of Canadian, and Lackey & Lackey, of Stinnett, for appellant.

G. C. Harney and K. H. Dally, both of Borger, G. G. McBride, of Oklahoma City, Okl., and Works & Bassett, of Amarillo, for appellee.

MARTIN, Justice.

Appellee was injured at a loading dock belonging to appellant in the town of Borger. She and three companions were out riding on the Sunday night of the accident. Appellee and her uncle occupied the front seat of the automobile. Returning from Panhandle to their home at Whittenberg, northeast of Borger, they turned from Main street and followed Grand avenue due east, intending to later take a street leading north toward their home. The streets of Borger run at right angles to each other, north and south and east and west. The line of the Panhandle & Santa Fé Railway Company extends in a southwesterly and northeasterly direction, intersecting diagonally the streets of Borger. Grand avenue runs into, but not across, appellant's property at a point about where its depot is located. From about the point of its intersection a gravelled roadway had been constructed and was maintained by appellant for a distance of 789 feet in a north-easterly direction and ended on a loading dock where the accident occurred. About 330 feet northeast of where Grand avenue intersects with the property of appellant, Harvey street, running in a due northerly direction therefrom, intersects with said property and said gravelled roadway. Two 75 watt electric lights were kept burning at night, situated on the outside of the depot just opposite the Harvey street intersection situated about 57 feet north of these lights. It is shown that the public generally used that part of the gravelled roadway on appellant's property lying between Grand avenue and Harvey street, with the knowledge and acquiescence of appellant. Harvey street was the one the parties intended to take on the night of the accident, but missed same, and continued in a northeasterly direction along the gravelled roadway and upon and off the unloading dock, where the car fell a distance of about four feet to the ground, severely injuring appellee. A line of telephone poles extends along and across this gravelled roadway, one of which was almost in the middle of same and at a point a few feet from the unloading dock. The top of the unloading dock was gravelled with the same material and had about the same appearance as the balance of the roadway. A telephone pole stood near its northwest corner with a guy wire extending down to the front of said dock. The unloading dock was not apparently floored with wood, but the material was held in place by heavy wood timbers at the edge. A slight depression existed in front of this dock, so that an automobile coming up on it traveled slightly upward to the top. The entire gravelled roadway from the intersection of Grand avenue to the unloading dock extended along the side of the depot and the right of way of appellant.

Appellee alleged, in part:

"Under the circumstances and on account of the position and the lay of said driveway and said street south thereof and which separated therefrom by said small angle defendant owed the traveling public, and especially this plaintiff, the duty of placing and maintaining a railing or warning at the north end and edge of said dock or platform giving notice that said driveway ended at that point and could not be further pursued without danger, which duty defendant failed to discharge and which was negligence under the circumstances.

"It was also the duty of defendant to the traveling public, and especially to the plaintiff, owing to the position, location and condition of said driveway, as aforesaid, and its said separation from said street next south thereof by such small angle, as above shown, to place and maintain warnings or signals at or near the point where said driveway separated from said street indicating that same was not a public street or public driveway which might not safely be used as such, and its failure to discharge this duty was negligence under the circumstances; that defendant knew, or by the exercise of ordinary care, would have known that said dock and driveway was so constructed that it constituted an invitation to drive thereon to the general public who used such driveway, and especially this plaintiff."

Defensive issues were, in substance, a denial of the existence of actionable negligence and that appellee was guilty of contributory negligence in respect to various acts not necessary to here set out.

The findings of the jury were in favor...