Schaff v. Young

• Court: Texas Court of Appeals
• Writing for the Court: Willson
• Citation: Schaff v. Young, 264 S.W. 582 (Tex. App. 1924)
• Decision Date: 03 July 1924
• Docket Number: (No. 2926.)
• Petition History: writ ref'd
• Parties: SCHAFF v. YOUNG.

264 S.W. 582

SCHAFF v. YOUNG.

(No. 2926.)

Court of Civil Appeals of Texas. Texarkana.

July 3, 1924.

Rehearing Denied July 5, 1924.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Action by L. H. Young against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. From judgment for plaintiff, defendant appeals. Affirmed.

About 2 o'clock of the afternoon of September 5, 1921, appellee's wife, 21 years of age and their two children, both boys, one about two years and the other about seven months old, were instantly killed at a point where the Greenville-Merit public road (running east and west) crosses the Missouri, Kansas & Texas Railway Company's line of railway (running north and south) in Hunt county, as the result of a collision between an automobile they were riding in and one of appellant's passenger trains.

Appellee and his wife, with their two children, resided at a point on said public road about 250 yards west of the crossing, and his wife and the children were traveling from their home east over the crossing, and the train was moving north thereover, at the time the collision occurred.

This suit for damages was commenced and prosecuted by appellee on the theory that the train operatives were guilty of negligence which was a proximate cause of the collision, in that they (1) failed to ring the bell and sound the whistle of the locomotive as the train approached the crossing, as was required of them by article 6564, Vernon's Sayles' Ann. Civ. St. 1914; (2) negligently operated the train at an excessive and unusual rate of speed; and (3) discovered appellee's wife and children to be in a perilous position from the train, and negligently failed to so control and operate same as to avoid the collision.

Appellant denied that the train operatives were guilty of negligence in any of the respects charged against them, and insisted, if they were, that appellee was nevertheless not entitled to recover anything of him because it conclusively appeared, he asserted, that both appellee and his wife were guilty of contributory negligence which was a proximate cause of the accident.

The court in a general charge submitted to the jury issues as to negligence on the part of the train operatives in each of the respects mentioned above as charged against them, and issues as to contributory negligence in ways specified on the part of appellee and his wife. The verdict of the jury was a general one. It was in appellee's favor, and his damages wer assessed at $20,000 for the death of his wife and $8,000 for the death of the children.

Chas. C. Huff, of Dallas, and McMahon & Dohoney, of Greenville, for appellant.

M. P. McCoy, B. Q. Evans, and Evans & Evans, all of Greenville, B. F. Looney, of Dallas, and C. L. Black, of Austin, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellant insists it appeared from a preponderance of the testimony that the train operatives did ring the bell and blow the whistle of the locomotive as the train approached the crossing. He further insists that a finding that said operatives were guilty of negligence in running the train at the speed they did was not authorized by either appellee's pleading or the testimony. He further insists that the testimony did not warrant a finding that said operatives discovered the peril of appellee's wife and children from the train in time to have avoided the accident resulting in their death. And he further insists that it appeared from both appellee's pleadings and the testimony that he and his wife were guilty of contributory negligence which was a proximate cause of the collision. The contentions, and others germane thereto, will be disposed of in the order they have been stated.

1. The testimony on the issue as to whether the train operatives sounded the whistle and rang the bell of the locomotive as required by the statute (article 6564, Vernon's Sayles' Ann. Civ. St. 1914) was conflicting. The finding of the jury in the negative, involved in their verdict, had ample support in testimony they had a right to believe.

2. The rate of speed at which a railroad company may lawfully operate its trains over country public road crossings in this state is not restricted by any statute. Hence it was not negligence as a matter of law, and the court did not tell the jury it was, to operate the train in question over the crossing at the rate of from 50 to 65 miles an hour, the speed at which the testimony indicated it was operated. McDonald v. Railway Co., 86 Tex. 1, 22 S. W. 939, 40 Am. St. Rep. 803; 3 Elliott on Railroads, § 1160; 22 R. C. L. 1011; 33 Cyc. 971. Whether the jury had a right to predicate a finding of negligence as a matter of fact upon the speed of the train depended, and the court told the jury it did, upon the circumstances of the case. Appellee alleged and there was testimony showing, or tending to show, those circumstances to have been as follows:

The road appellee's wife and children were traveling was "a frequently traveled" one. It was downgrade to the crossing from a point several hundred feet west thereof, and it curved sharply to the south, running parallel with the railroad track, just after it crossed same. The railroad track was down grade to the crossing from a point about 1,300 feet south thereof, and the track turned slightly to the northwest immediately after it crossed the dirt road. The view of operatives of a train approaching the crossing from the south of persons traveling from the west to the crossing over the public road was obstructed by trees, bushes, and weeds on the south side of said public road and the west side of the railway company's right of way from the crossing south about 1,300 feet. A person traveling in an automobile and approaching the crossing from the west could not see a train approaching from the south until his automobile got upon the railway company's right of way. The train in question was running several hours behind its schedule time, and no train was then due at the crossing. The train operatives did not ring the bell nor sound the whistle of the locomotive as it approached the crossing.

It is clear, we think, that the jury had a right to conclude that an ordinarily prudent person under the circumstances stated would not have operated the train over the crossing at the speed indicated by the testimony. Railway Co. v. Tucker, 48 Tex. Civ. App. 115, 106 S. W. 764; Railway Co. v. Luten (Tex. Civ. App.) 203 S. W. 909; 33 Cyc. 971; 22 R. C. L. 1012; 3 Elliott on Railroads, §§ 1160, 1161. In the Tucker Case the train approached the crossing at a speed of 25 or 30 miles an hour. The court said:

"Neither was there error in authorizing a finding for appellee if the train approached the crossing at a negligent rate of speed. While ordinarily the operatives of a railway train are not required to slacken its speed in approaching public crossings, yet the circumstances may be such as that they ought to do so. In the present case, considering the allegations and proof tending to support them — that no bell was being rung, no sign-board was erected, and the engine equipped with an insufficient headlight — the jury might properly have concluded that the train was being operated at a dangerous and negligent rate of speed."

Appellant insists, further, that if the testimony authorized the submission of such an issue, the charge of the court submitting it was erroneous, in that it did not explain to the jury "what circumstances and conditions" would warrant a finding that the train operatives were negligent in operating the train at the speed they did operate it. We think it not only was not error to not specify the circumstances more definitely than the court did, but that it would have been on the weight of the testimony, and therefore error, to have done so.

3. If the train operatives discovered the peril of appellee's wife and children from the train in time to have avoided the collision, and failed to...