Smith v. Galveston-Houston Electric Ry. Co.

• Decision Date: 18 November 1925
• Docket Number: (No. 550-4289.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 103
• Parties: SMITH v. GALVESTON-HOUSTON ELECTRIC RY. CO.
• Court: Texas Supreme Court

277 S.W. 103

SMITH v. GALVESTON-HOUSTON ELECTRIC RY. CO.

(No. 550-4289.)^*

Commission of Appeals of Texas, Section B.

November 18, 1925.

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

Action by Lawrence L. Smith against the Galveston-Houston Electric Railway Company. Judgment for defendant was affirmed by the Court of Civil Appeals (265 S. W. 267), and plaintiff brings error. Reversed and remanded.

Albert De Lange, of Houston, and Stewarts and Brantly Harris, both of Galveston, for plaintiff in error.

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

POWELL, P. J.

This case is fully stated in the majority opinion of the Court of Civil Appeals. This opinion, as well as the dissent by Justice Graves, is reported in 265 S. W. 267. We shall not restate the case here except to say that the trial court declined to submit any issue to the jury other than discovered peril. Smith, driving his truck, was injured on a public highway crossing over which the interurban operated. The truck and interurban were both going in the same direction until the truck turned across the interurban track. The highway and track came together at an angle of about 41 degrees. The accident occurred on the Galveston-Houston public highway about 3 miles beyond the causeway, and on the way to Houston. Upon the one issue of discovered peril, the jury answered in favor of the company. Upon that answer, judgment was rendered that Smith take nothing by his suit.

Upon appeal, the Court of Civil Appeals, by a divided court, as already indicated, affirmed the judgment of the district court.

The first assignment of error in the application reads as follows:

"The Court of Civil Appeals erred in overruling assignment of error No. 3, as numbered in brief of plaintiff in error, reading as follows: "The court erred in refusing special instruction No. 10 requested by plaintiff, reading as follows: "Issue No. 2: Was the defendant, the Galveston-Houston Electric Railway Company and its servants negligent in operating its car 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? You will answer `Yes' or `No' according as you may find the facts to be."'"

It was upon the correctness of the refusal of the trial court to submit this issue that the Court of Civil Appeals divided. Upon all other issues raised, Justice Graves agreed with the other members of his court. He did criticise the definition of discovered peril as submitted to the jury, but admitted he did so in the absence of any objection thereto. In what we shall hereafter say, we have no reference to this discussion relative to the correctness of the discovered peril charge given to the jury. The correctness of that charge is not before our court, and we express no opinion thereon. But, in so far as Justice Graves discusses the charge which is the basis of the assignment we have quoted, we approve his views. We have read the record, and there is evidence justifying his statements. As might be expected, the evidence in the record is conflicting. But there was evidence, as Justice Graves points out, raising the issue involving the speed at which this interurban car was being operated at the time of the accident. We doubt if we can add anything to what Judge Graves says.

Where two railroads cross at grade, you have an essentially dangerous situation. The same thing is true where a public road crosses a railroad track. It is likewise true where two public highways or city streets cross each other. There have been many attempts by state law, city ordinances, and otherwise to minimize what we all realize is a very dangerous situation at best. But in spite of the regulations made in an attempt to lessen this danger, accidents continue to occur. Consequently, we have reached the point where grade crossings of every kind are being avoided wherever possible. In many instances, the federal government will build a new public road by changing its route entirely rather than improve one which crosses and recrosses a railroad track. In other cases, overhead crossings are constructed. In still other instances, interlocking devices are provided. There is sufficient danger in all crossings at grade of a highway and railway to require the exercise of ordinary care by each of the parties using such crossing. This has always been the law in this state; and, unless all reasonable minds can reach but one conclusion upon a given state of facts, it is held that the question as to whether or not there has been a failure to exercise ordinary care is one for the jury.

Under this test, we are clearly of the view that it was for the jury to determine whether or not, under all the circumstances surrounding the accident in the instant case, the company was guilty of negligence in running its car at the rate of speed alleged in the petition. The speed is variously estimated at from 30 to 45 miles per hour. Under the most favorable testimony for the company, the interurban car could not have been stopped in less than 300 feet if the speed was only 30 miles an hour. If the speed exceeded that limit, it would have required a greater distance in which to stop the car. There is evidence that it would have required 500 feet to make a stop at the time of the accident. Is it careless for a train to operate at this speed? That depends upon circumstances. In this connection, we quote as follows from an opinion of the Court of Civil Appeals at Fort Worth, speaking through Justice Speer, in the case of Railway Co. v. Tucker, 48 Tex. Civ. App. 115, 106 S. W. 764:

"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 the 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 signboard 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. We find as a fact that the evidence authorized all the charges given, that the defense of contributory negligence was properly submitted, and that the verdict finds support in the testimony."

In the Tucker Case, writ of error was denied by our ...