Pearson v. Texas & N. O. Ry. Co.

• Decision Date: 29 March 1922
• Docket Number: (No. 291-3549.)
• Citation: 238 S.W. 1108
• Parties: PEARSON v. TEXAS & N. O. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 1108

238 S.W. 1108

PEARSON v. TEXAS & N. O. RY. CO.^*

(No. 291-3549.)

Commission of Appeals of Texas, Section A.

March 29, 1922.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Sallie Pearson against the Texas & New Orleans Railway Company. Judgment for plaintiff reversed, and cause remanded by the Court of Civil Appeals (224 S. W. 708), and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

E. B. Pickett, Jr., and C. H. Cain, both of Liberty, and J. P. Rogers, of Houston, for plaintiff in error.

Baker, Botts, Parker & Garwood, of Houston, F. J. & C. T. Duff, and, Orgain, Butler, Bolinger & Carroll, all of Beaumont, for defendant in error.

SPENCER, P. J.

Plaintiff in error, Mrs. Sallie Pearson, instituted this suit, and recovered judgment against defendant in error, Texas & New Orleans Railway Company, for the alleged negligent striking and killing of her husband, J. M. Pearson, while the latter was in the act of crossing the defendant in error's track at what is known as Englewood crossing, in Harris county.

Plaintiff in error and her husband, as the guests of W. P. Skinner and wife, were proceeding toward the city of Houston, in an automobile operated by Mr. Skinner. The public highway which they were traveling was approximately 76 feet from, and runs parallel with, the railway track for some distance, up to the beginning of a curve in the highway, near where it crossed the track. As shown by the scale of blueprint in the record, this curve constitutes a right-angle turn of the highway, has a radius of 50 feet and a length of approximately 80 feet, and terminates within approximately 25 feet of the rails. From the terminus of the curve the road continues straight, and intersects the railway track at right angles.

In attempting to pass over this crossing, the automobile in which the parties were riding was struck by one of defendant in error's trains, which was also going in the direction of Houston, and as a result of the collision plaintiff in error was injured and her husband instantly killed.

The grounds of alleged negligence upon which plaintiff in error predicated her cause of action, proximately causing the injuries, were: (1) That the defendant in error's servant in charge of the train, which struck the automobile failed to blow its whistle at a distance of at least 80 rods from the crossing; (2) that they failed to ring the bell at a distance of at least 8 rods from the crossing, and to continue ringing it until the crossing was passed; (3) that they operated the train at a dangerous and excessive rate of speed; (4) that they failed to keep a reasonable lookout to avoid injuring persons, about to use the crossing; (5) that they failed to provide and maintain a flagman, watchman, gates, bell, or gong at such crossing to warn people, about to use the crossing, of an approaching train; and (6) that they discovered the perilous position of the plaintiff in error and her husband, and failed, to use all reasonable means at hand, consistent with the safety of the train, its crew, and passengers, to avoid injuring her and killing her husband.

Among other things defendant in error pleaded a general denial; (2) that plaintiff in error, her husband, and Skinner were guilty of contributory negligence; (3) that plaintiff in error, her husband, and Skinner were engaged in a joint enterprise and that Skinner was guilty of contributory negligence, which barred plaintiff in error's right to recover.

The case was submitted to the jury under a general charge. Defendant in error requested, but the trial court refused, the following special charges:

"If you believe that on the occasion in question plaintiff, Mrs. Sallie Pearson, could have ascertained the approach of defendant's train to said crossing in time to have avoided the accident by listening for the approach of said train, and if you further believe from the evidence that she did not listen, or by looking for said train, and you further believe that she did not look, or by both looking and listening, if you believe that she did not so look and listen, and that in failing to so look and listen, if she did so fail, she failed to use that degree of care that an ordinarily prudent person would have used under the same or similar circumstances, then you will render a verdict in favor of the defendant, unless you find for plaintiff on the issue of discovered peril.

"If you believe that on the occasion in question the deceased, J. M. Pearson, could have ascertained the approach of defendant's train to said crossing in time to have avoided the accident, by listening for said train, and if you further believe from the evidence that he did not listen, or by looking for said train, and you further believe that he did not look, or by both looking and listening, and you further believe from the evidence that he did not look and listen, and that in failing to so look and listen, if he did so fail, he failed to use that degree of care that an ordinarily prudent person would have used under the same or similar circumstances, then you will find for the defendant on account of the death of J. M. Pearson, unless you find for the plaintiff on the issue of discovered peril."

These special charges were the subject of the second and third assignments of error in the Court of Civil Appeals, which assignments the Court of Civil Appeals sustained. All other assignments were overruled, and the cause was reversed and remanded. 224 S. W. 708.

These charges tell the jury, in effect, that if they believe that plaintiff in error could have ascertained the approach of the train in time to have avoided the accident by looking, or listening, or both, and that a failure to do so was negligence, to return a verdict for defendant in error unless they found for plaintiff in error on the issue of discovered peril.

It will be observed that these charges utterly ignore the question of whether such negligence, if any, contributed to the injury. That was an important issue of fact, and one which the jury was rightfully...