Pecos & N. T. Ry. Co. v. McMeans

• Decision Date: 28 June 1916
• Docket Number: (No. 1031.)
• Citation: 188 S.W. 692
• Parties: PECOS & N. T. RY. CO. et al. v. McMEANS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

188 S.W. 692

PECOS & N. T. RY. CO. et al. v. McMEANS.^*

(No. 1031.)

Court of Civil Appeals of Texas. Amarillo.

June 28, 1916.

Rehearing Denied October 11, 1916.

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Suit by R. L. McMeans against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellants. Jones & Miller and P. S. Pearson, all of Amarillo, for appellee.

HUFF, C. J.

R. L. McMeans, the appellee, brought suit against the appellant railway companies for damages occasioned by personal injuries received by himself, and damages to an automobile. He alleged substantially that on February 2, 1914, he was crossing at the Tenth street crossing in Amarillo, Tex., with one John Benson, in his automobile, and in attempting to cross the Tenth street crossing the automobile collided with a box car, which defendants negligently permitted to be shoved across said crossing; that it was nighttime, about 8 o'clock; and that appellants were making a flying or drop switch at said point and permitted the box car to roll across said crossing, without being under the control of any person and without having lights thereon, and without proper signals and warnings. There were some seven grounds of negligence specified as having been the proximate cause of the injury. He set out fully and specifically his injuries — both to himself and the auto. Appellants answered, denying the acts of negligence alleged, and pleaded contributory negligence and other matters not necessary to set out. The case was submitted to the jury on special issues, and in answer thereto they found that the appellants were guilty of negligence in each and all of the particulars alleged, and that the appellee was not guilty of contributory negligence. Judgment was rendered on the verdict for $2,401.70.

The first assignment asserts error in the fourth paragraph of the court's charge that:

"It is the duty of persons attempting to cross at a public crossing of a railway company to exercise ordinary care for their own safety."

It is asserted as a proposition that it is the duty of such person to stop, look, and listen, and that he is not relieved from negligence by simply using ordinary care. The Supreme Court has said:

"The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety." Railway Co. v. Ward, 100 Tex. 22, 93 S. W. 106.

The above case approves what was said with reference to a similar charge to the one here given, in Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857. The Ward Case, however, held the fact that the injured party admitted he had not listened or looked for the train before stepping on the track, under the circumstances of that case, were sufficient to establish he was not then in the exercise of proper care. Such is not the question here. If, however, the charge was not correct, the finding of the jury renders the error immaterial.

In answer to the twenty-fourth special issue, the jury found appellee did not fail to stop, look, and listen. Having found that he did the very thing which appellant claimed he should have done answers their objection made under this assignment.

The sixth assignment objects to the seventh issue: "Did defendants fail to have a competent man stationed at the crossing to give warning?" The objection appears to be that the issue should have been submitted, whether there was a competent flagman at the crossing. The term, "a competent man to give warning," is substantially the same thing, under the facts of this case, and the jury evidently so considered it.

The third assignment assigns error to the form of issue 24: "Did the plaintiff fail to stop, look, or listen, or to discover the approach of the box car upon defendant's track, or to observe and heed the signal and warning, if any given, by defendant's agents and employés?" The jury answered this question, "No." The form of the question and the jury's answer imply that the appellee failed in none of the things inquired about; in other words, it is an affirmative finding. He did all the things asked about. This was not a matter to the injury of the appellant. The jury, in answer to other issues, found he used ordinary care in approaching and going upon the track and was not negligent in failing to discover the box car in time to prevent collision with his auto. We think the form of the question submitted, and the other issues and answers thereto, render the contention that each of the questions separated by "or" were separate issues and should have been submitted separately immaterial; if not in the proper form became harmless under the findings. There was no injury to appellant by reason of the form of the issues under the answers given.

The fourth assignment is sufficiently answered by what is said under the third assignment.

The fifth assignment is that the court submitted an incorrect measure of damages as to the auto; that is, the value before and after its injury, because the pleadings did not warrant the measure of damages submitted.

The damages alleged was $151.70, expended in repairing the auto, in order to restore it to the condition it was before the accident. The difference in its market value before and after the injury was not sought to be recovered by the pleadings, but the cost to repair it and to restore it to its former condition.

The allegation of injury to the auto by the negligence of the appellant will authorize a recovery for all those damages which naturally and necessarily flow from the injury done. This, in most instances, is the difference in the value of the property before and after the injury, and, if there is a market value before and after for such property, that will control the measure. The charge of the court is therefore abstractly correct. Railway Co. v. Levi, 59 Tex. 674; Railway Co. v. Levy, 45 Tex. Civ. App. 373, 100 S. W. 195; Railway Co. v. Eddleman, 175 S. W. 775. The objection to the charge is that the pleadings did not authorize it. The appellee alleged that it cost to repair the auto $151.70. It appears in cases of this kind the owner may recover the difference between the market value after the repairs and before the injury, with a reasonable and necessary expense in making the repair. Cooper v. Knight, 147 S. W. 349. Under the pleadings, therefore, the appellee could not recover the full difference between the value just before and after the...