Smith v. Galveston-Houston Electric Ry. Co.

• Decision Date: 21 June 1924
• Docket Number: (No. 8453.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 265 S.W. 267
• Parties: SMITH v. GALVESTON-HOUSTON ELECTRIC RY. CO.
• Court: Texas Court of Appeals

265 S.W. 267

SMITH v. GALVESTON-HOUSTON ELECTRIC RY. CO.

(No. 8453.)^*

Court of Civil Appeals of Texas. Galveston.

June 21, 1924.

Rehearing Denied October 9, 1924.

Error from District Court, Galveston County; J. C. Canty, Judge.

Suit by Lawrence L. Smith against the Galveston-Houston Electric Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Stewarts, of Galveston, A. J. De Lange, of Houston, and Brantly Harris, of Galveston, for plaintiff in error.

G. B. Ross and Terry, Cavin & Mills, all of Galveston, for defendant in error.

PLEASANTS, C. J.

This suit was brought by plaintiff in error Smith against the railway company to recover damages in the sum of $25,000 for personal injuries alleged to have been caused by the negligence of the defendant.

Plaintiff was injured in a collision between a motor truck which he was driving along a public highway of Galveston county, and an electric car which defendant was operating on its railway track across said highway.

Plaintiff alleged that defendant was a trespasser upon said highway at the time of the collision, it not having theretofore obtained the consent of Galveston county to place its track and operate its cars thereon. Negligence was alleged in the failure of the defendant to properly guard the public from the danger of collision at said crossing, and in the manner in which the car was operated at the time of plaintiff's injury.

The grounds of negligence presented on this appeal are thus alleged in the petition:

"(a) The defendant was negligent in failing to have at said crossing an electric bell, gate, or other devise to warn persons traveling along said public road and across defendant's tracks, of the approach of its cars, said crossing being on the main Galveston-Houston road, a muchly traveled thoroughfare, said crossing being obstructed and rendered more dangerous, due to trolley poles which obstruct the view and make it difficult to see approaching cars on said track, and said track and said crossing being rendered more dangerous due to the angle at which said track crosses said road.

"(b) The defendant was negligent in operating its car, which struck the truck and injured the plaintiff, over said crossing, at an excessive rate of speed, to wit, 50 to 60 miles an hour. * * *

"(d) Defendant was negligent in failing to keep a watchman at said crossing, which was a muchly used and dangerous crossing, in order to warn persons who had occasion to pass over the track of the defendant at that point of the approach of its cars, said crossing being on the main Galveston-Houston road, a muchly traveled thoroughfare, said crossing being rendered more dangerous due to trolley poles which obstruct the view and make it difficult to see approaching cars on said tracks, and said crossing being rendered more dangerous due to the angle at which said track crosses said road.

"(e) That defendant was negligent, in that it discovered plaintiff in a position of peril or danger, on or near to, and approaching, the track, in time to have stopped the car or lessened its speed and have avoided the collision, and it failed to stop the car or control same in time to avoid said injury, although it could have done so with the means at hand, in the exercise of ordinary care."

Defendant answered by pleas in abatement, general demurrer, general denial, and by way of special answer alleged that the plaintiff was guilty of contributory negligence in the following manner:

"(1) That plaintiff was driving an automobile truck approaching said crossing, and approached said crossing and went upon the track immediately in front of defendant's cars without looking or listening for the approach of said car.

"(2) That plaintiff was driving an automobile truck immediately before said accident, and approached said crossing at an excessive and dangerous rate of speed.

"(3) That plaintiff took no care for his own safety in that he approached and went upon said crossing immediately in front of one of defendant's cars without watching where he was going, and without looking for any approaching car, and in fact generally acted as if he were asleep, and that had plaintiff looked or listened, or exercised the slightest degree of care for his own safety, he would have seen or heard said approaching car, and consequently avoided the accident which took place.

"(4) That plaintiff in approaching the intersection of the highway upon which he was driving, with the track of this defendant, the crossing being at grade, did not at some point nearer than 30 feet from said track, reduce the speed of the motor truck or vehicle which he was driving to a speed not exceeding six miles per hour; which acts defendant alleged proximately caused the collision and resulting injuries to the plaintiff."

At the conclusion of the evidence the trial court submitted the case to the jury upon special issues, the only ground of recovery submitted being the alleged negligence of the operators of the car in failing to use proper care to prevent the collision after they discovered the peril of the plaintiff.

Upon this issue the jury found in favor of the defendant. On the return of this verdict, judgment was rendered in favor of the defendant, that plaintiff take nothing by his suit.

The appeal is based upon the following propositions:

"No. 1. There was sufficient evidence to require the submission to the jury, the issue of negligence of defendant in failing to have a watchman, electric bell, or gate at the crossing where the collision occurred.

"No. 2. There was sufficient evidence to require the submission to the jury, the issue of negligence of the defendant in operating its cars under the circumstances, at the rate of speed it was operating same at the time it neared the crossing at which the collision with the truck driven by plaintiff occurred.

"No. 3. The evidence did not show conclusively that the plaintiff was guilty of contributory negligence in any particular, or that any contributory negligence of plaintiff was the proximate cause of plaintiff's injury.

"No. 4. The court erred in excluding, over objections and exceptions of plaintiff, evidence offered by plaintiff, to the effect that the collision between plaintiff's truck and defendant's interurban car occurred at the intersection of a public highway of Galveston county, Tex., and that the defendant had no permission nor authority from the county commissioners' court of Galveston county, nor from any other authority, to lay its rails or right of way on or across said public highway, nor to operate its interurban cars on or across same, said testimony being relevant and material to showing the rights of plaintiff and defendant, respectively, at the point where the collision occurred; said evidence showing that defendant was a trespasser upon said public highway and liable absolutely for all damage and injury to plaintiff occurring by reason of said trespass.

"No 5. The court erred in admitting in evidence, over objections and exceptions of plaintiff, all evidence with reference to the payments by Black Hardware Company to plaintiff during his disability and subsequent to his return to work, amounts equal to his wages, and compensation prior to the injury, and payments in behalf of plaintiff in doctor's bills, hospital bills, and similar expense accruing by reason of injury to plaintiff, as the undisputed evidence shows that such amounts were made as advances to plaintiff, charged against his account, and evidence of such payments was immaterial, irrelevant, incompetent, and prejudicial to plaintiff, as said payments were not made on behalf of defendant or for defendant's benefit, and said defendant was not entitled to any offsets on account of said payments.

"No. 6. The court erred in allowing defendant's witness Stelter, the motorman of defendant's interurban car, to testify over objections and exceptions of plaintiff, that he did all he could to stop the interurban car and avoid injury to plaintiff after discovering the peril of plaintiff, said evidence being immaterial, irrelevant, and incompetent, and the mere conclusion and opinion of the witness on a matter of fact and of law, and the very issues in controversy in the case, same being solely within the province of the jury.

"No. 7. The court erred in admitting in evidence, over objections and exceptions of the plaintiff, the statement made by witness Zolbe, as follows: `I cannot see why a man in an auto, if he had been paying any attention at all, could not see and hear the car.' Such evidence being immaterial, irrelevant, and incompetent to prove any issue in this cause, and such evidence being but a conclusion of the witness, such witness not having shown himself to have sufficient knowledge to qualify him to render his opinion, the evidence being a conclusion of fact and of law by the witness on the very issue to be decided by the jury, viz., contributory negligence of the plaintiff at the time of the injury complained of, and negligence of the defendant in the particulars set forth in plaintiff's requested instruction."

The crossing at which the collision occurred is in the open prairie across the bay, and some 8 or 10 miles beyond the limits of the city of Galveston, and 3 miles beyond the railway station at Virginia Point. There is not a house or a tree in the vicinity of the crossing. Vehicles going along the highway and cars operated on the railway are in view of those traveling in both conveyances from Virginia Point to, and for a mile or more beyond, the crossing. The railway crosses the highway at an angle of 41 degrees. The railway runs practically east and west, and the highway north and south. Such being the relative positions of the railway tracks and the highway, it follows that a person approaching the crossing on the highway from the south as he nears the crossing might be so far in advance of a car approaching from the east that he could...