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

• Decision Date: 12 February 1936
• Docket Number: No. 8171.,8171.
• Citation: 91 S.W.2d 922
• Parties: PANHANDLE & S. F. RY. CO. v. FRIEND et ux.
• Court: Texas Court of Appeals

91 S.W.2d 922

PANHANDLE & S. F. RY. CO. v. FRIEND et ux.

No. 8171.

Court of Civil Appeals of Texas. Austin.

February 12, 1936.

Rehearing Denied March 4, 1936.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Action by Frank Friend and wife against the Panhandle & Santa Fe Railway Company. From an adverse judgment, the defendant appeals.

Reversed and remanded.

Terry, Cavin, & Mills, of Galveston, and Collins, Jackson & Snodgrass, of San Angelo, for appellant.

Upton & Upton and Travis E. Baker, all of San Angelo, for appellees.

McCLENDON, Chief Justice.

Frank Friend and wife recovered judgment against the railway. (Panhandle & Santa Fe Railway Company), upon a special issue verdict, in damages for personal injuries to Mrs. Friend and property damage to an automobile, the result of a collision between the automobile (driven at the time by Mrs. Friend) and a switch engine of the railway at the intersection of the latter's tracks and Chadbourne street in San Angelo. The railway has appealed.

Two grounds for reversal are urged: (1) That the burden of proof was erroneously placed upon the affirmative of the issue of unavoidable accident; (2) that the issue of whether the crossing was extra-ordinarily hazardous requiring a flagman (the only found ground of negligence supporting the verdict) was erroneously submitted, for reasons hereinafter noted.

It is conceded that the issue of unavoidable accident was subject to the urged objection. See Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W. (2d) 944, 97 A.L.R. 1513; Dallas Ry. & Terminal Co. v. Darden (Tex.Com.App.) 38 S.W.(2d) 777, and authorities there cited. Appellees contend, however, that the facts of the case do not present the issue of unavoidable accident. They also contend that the evidence conclusively shows that the crossing was extraordinarily hazardous. They assert, therefore, that any error in the respects urged was immaterial and consequently harmless. We will first consider these contentions of appellees, which we have concluded should be overruled.

The collision occurred about 8 o'clock p. m. Sunday, April 16, 1933. Mrs. Friend was alone, driving north on Chadbourne street, which, at this point, runs practically due north and south. The switch engine was moving southwest, the tracks at this point intersecting Chadbourne street at an angle of about 45 degrees. We will, however, for convenience use east and west in referring to the course of the railway's tracks. There were two tracks crossing the street, the main line track on the north and the passing track on the south. A switch track branched off from the main line towards the south, beginning about the center of the street. It connected further east with the passing and other switch tracks. The passenger depot was some 50 or more feet west of the street on the north side of the main track. An eastbound train was standing on the main track at the passenger depot, with its headlight burning. It was scheduled to leave at 8:30 p. m. To the east of the street and south of the tracks the only obstructions for about 50 feet were a few poles. At about 50 feet south there were several small buildings. After passing these buildings going north, the view of the tracks was clear, except for these poles for several hundred feet. The switch engine was headed east. It had just "spotted" the passenger train and pushed a two-coach motor train, which had recently arrived and was standing at the passenger depot, east on the main track across Chadbourne street, thence onto the switch, thence onto the passing track. It then proceeded west on the passing track, pulling the motor train. As it was crossing Chadbourne street, the collision occurred. Both the automobile and the switch engine were moving very slowly. A brakeman, with a lantern was standing on the south end of the running board of the switch engine tender. He and the engineer, who was in the cab on the south side, testified that they saw the car as it approached the crossing, but presumed from its movements that it would stop before it reached the track. They only realized that it would not stop when it was but a few feet from the track, when the brakeman jumped off the running board, hollered, and gave the stop signal with his lantern. Mrs. Friend testified that she looked to her right about the time she passed the small structures to the east of the street and saw no engine or train. She did not hear a whistle nor bell. She then looked to the left where the train was standing. She did not see the switch engine until it was practically upon her. The front of the car was struck by the rear end of the switch engine and shoved westward across the street for a distance estimated at from 4 to 8 feet. The evidence was without substantial dispute that Chadbourne street at this point was one of the main traffic arteries leading out of the city toward the south, where several suburban residential additions were located; that the traffic was heavy, especially at this hour; that in crossing the street going east one of the train operatives acted as flagman for the switch engine train. Mrs. Friend lived in one of the southerly suburbs and was well acquainted with the crossing. She was on her way to church when the collision occurred. The engine of the eastbound train was making a great deal of noise.

Upon issues, other than those noted above, the jury found: (4) That defendant did not fail to have the switch engine lighted; (7) nor to give the signals required by ordinary prudence; (10) nor to blow the whistle before the engine started across the street; (13) that it did fail to ring the bell and keep it ringing; (14) was negligent therein; (15) but such negligence was not "the proximate cause of the injury"; (16) discovered peril was negatived; (19), (22), (25), and (28) that Mrs. Friend was not contributorily negligent in various particulars.

We think the situation thus presented would support findings that neither Mrs. Friend nor the railway was guilty of negligence, and therefore that the collision was the result of an unavoidable accident. The case here is clearly distinguishable from those in the two cases cited above (Magnolia Coca Cola Bottling Co. v. Jordan, and Dallas Ry. & Terminal Co. v. Darden). In each of those cases the situation was such that under no reasonable hypothesis could the casualty be explained than that of negligence of one or the other party to the suit. In the Jordan Case plaintiff's car collided with a car parked on the side of the street. Plaintiff contended that this collision was caused by defendant's truck striking plaintiff's car from the rear. Defendant contended that its truck never struck plaintiff's car. The evidence, conflicting as to these contentions, presented no other theory of causation. Each of these theories was held to establish negligence as a matter of law. An analogous situation was presented in the Darden Case, in which a street car struck the rear end of an automobile moving in the same direction on the street car track in a public city street. Here the situation was much more complicated, presenting a variety of elements warranting findings of ordinary care on the part of both parties to the suit.

The issue of extrahazardous crossing requiring the additional precaution of a flagman at this particular time we think was clearly presented by the evidence. We do not think, however, that the evidence was so conclusive in this regard as to establish this issue as a matter of law. So far as the record shows, there had never been a previous accident at this crossing. It is to be noted also that the situation presented in the eastward movement of the switch engine train across the street, when one of the operatives acted as flagman, was essentially different from the involved westward movement of the same train. In the former the engine was pushing two motor coaches ahead of it across the street; whereas in the latter the two coaches were being pulled by the engine, which was backing across the street, the coaches being to the east of the engine. A brakeman on the running board of the tender, and the engineer's relatively close proximity to the west extremity of the moving train, would support a finding that the additional precaution of a flagman was not required.

We think it unnecessary in this connection to do more than cite the case of Tisdale v. Ry., 228 S.W. 133, in which Judge Powell, writing for section B of the Commission of Appeals, very exhaustively reviewed the authorities upon this subject both in this state and other jurisdictions, including the federal Supreme Court.

The special issues upon this subject (each of which was answered "Yes") follow:

"1. Do you find from a preponderance of the evidence that an ordinarily prudent person would have kept and maintained a watchman or flagman at the railroad crossing on Chadbourne Street at the time of the accident described in plaintiff's petition?"

"2. Do you find from a preponderance of the evidence that the defendant is guilty of negligence as that term is herein defined in not having a flagman or watchman at the railroad crossing on Chadbourne Street at the time of the alleged injury herein?"

"3. Was said negligence, if any negligence there was, on the part of the defendant, its agents and servants, the direct and proximate cause of the injury, if any, of the plaintiff as complained of."

It is first contended by the railway that inasmuch as the issue whether the crossing was extraordinarily or unusually hazardous was not specifically submitted to nor found by the jury, the verdict will not support the judgment predicated upon the issue of negligence in not having a flagman at the crossing. This contention is predicated upon the railway's construction of the holding in Ormsby v. Ratcliffe, 117 Tex. 242, 18 S. W.(2d) 1084, and other cited cases. While this court entertains no doubt as to the holding in Ormsby...