Payne v. Young

• Decision Date: 19 May 1922
• Docket Number: (No. 814.)
• Parties: PAYNE, Agent, v. YOUNG et al.
• Court: Texas Court of Appeals

241 S.W. 1094

PAYNE, Agent, v. YOUNG et al.

(No. 814.)

Court of Civil Appeals of Texas. Beaumont.

May 19, 1922.

Appeal from Harris County Court; John W. Lewis, Judge.

Action by J. H. Young and another against John Barton Payne, Agent, United States Railway Administration. From judgment for plaintiffs, defendant appeals. Affirmed.

Wilson & Woodul, John B. King, and Dabney & King, all of Houston, for appellant.

Atkinson & Atkinson, of Houston, for appellees.

O'QUINN, J.

Suit by appellee against appellant for injuries to his person and damages to his automobile occasioned by a collision at a crossing on Loraine street in the city of Houston.

Briefly stated, the plaintiff alleged:

(1) That on May 12, 1918, he was riding in his automobile going in a westwardly direction on Loraine street in the city of Houston, and attempted to cross a railroad track which crossed said street; that in order to cross said tract it was necessary to go up an incline on said street; that his view of said railroad track to the north of said crossing was obstructed by numerous houses, barns, and other objects.

(2) That appellant was negligent in the following particulars: (a) Failure to blow the whistle or ring the bell; (b) operating the train at an excessive rate of speed; (c) failure to keep a lookout; (d) failure to see appellee at the crossing and stop the train; (e) failure to maintain a watchman at said crossing; (f) failure of watchman to warn appellee, if one was provided; (g) violation of city ordinance of the city of Houston providing that no locomotive engine shall be operated within the city limits of the city of Houston in excess of a speed of six miles an hour.

(3) That his automobile was damaged by the collision in the sum of $233.74, and that he sustained personal injuries, for which he demanded $250.

Appellant answered by general demurrer, general denial, and specially that appellee was guilty of contributory negligence in that:

(a) Driving his automobile at such a rapid rate of speed as to not be able to stop same; (b) driving his automobile at a high rate of speed on a wet, slippery, asphalt pavement; (c) failure to have the car under control as he approached the crossing; (d) failure to comply with provisions of section 17, c. 207, Acts 1917, requiring a person to reduce the speed of his automobile not to exceed 6 miles per hour at some point not less than 30 feet from where the street crossed the track, said crossing being obscured, within the meaning of the act; (e) failure to look and listen; and (f) driving the car with defective brakes.

The case was tried before the court without a jury, and judgment rendered for appellee for $233.74 as damages to his automobile, from which appellant appeals.

The court made and filed the following findings of fact and conclusions of law:

"Findings of fact.

"Loraine street is a bitulithic street running east and west in the city of Houston, and crosses the tracks of Houston East & West T. Railway and the Gulf Coast lines in the city of Houston. It is a grade crossing, the grades starting about 75 feet east of the crossing, and being about 3 feet grade at the crossing. These railroad tracks run approximately north and south, the H. E. & W. T. track being the westerly track of said crossing, and the Gulf Coast tract being about eighty feet east of the H. E. & W. T. track. The H. E. & W. T. Railway maintains a flagman at its crossing at all times. Loraine street is used a great deal by the people of the city of Houston for all kinds of traffic, and a street car track goes down it, and crosses the railroad tracks. The view of the railroad tracks lying to the north of Loraine street to a person going west on Loraine street is obstructed by a number of houses, barns, fences, etc., the nearest to the track of the Gulf Coast lines being about 40 feet east of track. At the north about 600 feet distant from Loraine street is a crossing of the Texas & New Orleans Railroad and the Gulf Coast Railway. The view to the south of the crossing on Loraine street is unobstructed several hundred feet to a person going west. The defendant did not maintain a watchman on this crossing at the time of the collision, but had employed one to begin work at this crossing on the day of the accident, he being employed to work from 7 a. m. to 7 p. m. as watchman at said crossing. Gulf Coast trains had been running on the Gulf Coast line on the day of the accident, and the train in this accident was the second International & Great Northern train coming into Houston over this track.

"On May 12, 1918, shortly before 7 a. m., the plaintiff was driving his car west on Loraine street, traveling about 10 or 12 miles per hour. At some little distance from the crossing plaintiff observed a motorcar going north on the H. E. & W. T. track, and threw his car into neutral, intending to cross the track of the defendant and to stop his car between the tracks of the H. E. & W. T. Railway and those of the defendant. When he passed the line of the nearest obstruction to his view on the right he observed an approaching passenger train, which was an I. & G. N. train, approaching from the north, and he immediately applied his brakes with full force, but was unable to stop his car in time to prevent being struck by the approaching train. The plaintiff was about 20 feet from the track when he first saw the I. & G. N. passenger train. At that time he had slowed down to about 10 miles an hour. He did not hear the whistle blown nor the bell rung, although his hearing was good. The train was about 75 feet away from the crossing when he saw it. His attention was attracted by the noise of the train, and he immediately applied his brakes with full force, but was unable to stop his car clear of the track, although his brakes were in good condition, and the automobile collided with the side of the engine or train. The automobile was knocked quite a distance, damaging it $233.74, which was the agreed reasonable charge for repairing it.

"The court finds that the passenger train was traveling in excess of 6 miles per hour within the corporate limits of the city of Houston at the time of the accident, and in violation of the city ordinance of Houston, and that no whistle was blown or bell rung on said train as it approached this crossing, and that the defendant did not maintain a watchman or flagman on this crossing at the time of the accident, although the defendant had employed one to begin his service as flagman at the crossing, who was to start work at 7 a. m. that morning.

"The court further finds that the plaintiff was in possession of all his faculties, that his hearing and eyesight were good and that the view on his right-hand side as he approached the crossing was obstructed up to within 40 feet of said crossing, and that he could not see the approaching train until after he passed this obstruction.

"The court further finds that the plaintiff understood that the Gulf Coast track had been used mainly as a transfer track, but he knew that trains were run thereupon at different times. He did not know that the I. & G. N. passenger train had started running over this line.

"The court further finds that plaintiff, after discovering the approach of said train, used every means in his power to bring his automobile to a complete stop; that in approaching said crossing his attention was on the motorcar of the H. E. & W. T. track, and that he could not see the passenger train coming on account of obstructions, but that he had relied on the engineer and fireman to give him warnings by blowing the whistle or ringing the bell.

"The court further finds that there was no flagman or gates maintained by the defendant at the crossing of Loraine street at the time of the accident.

"Conclusions of Law.

"The court finds the defendant guilty of negligence in the following particulars:

"First. In operating said train at a speed in excess of 6 miles per hour in the city of Houston in contravention of a city ordinance of the said city of Houston.

"Second. In failing to blow the whistle or ring the bell in the city limits in contravention of a city ordinance of said city of Houston.

"Third. In failing to maintain a watchman or flagman at said crossing at the time of the accident.

"The court further finds that the plaintiff failed to bring his car down to a speed not to exceed 6 miles per hour at some point not less than 80 feet from said crossing, but that said failure to do so was not...