Southern Traction Co. v. Kirksey

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Southern Traction Co. v. Kirksey, 181 S.W. 545 (Tex. App. 1915)
• Decision Date: 24 November 1915
• Docket Number: (No. 5512.)
• Parties: SOUTHERN TRACTION CO. v. KIRKSEY.<SMALL><SUP>*</SUP></SMALL>

Page 545

181 S.W. 545

SOUTHERN TRACTION CO. v. KIRKSEY.^*

(No. 5512.)

Court of Civil Appeals of Texas. Austin.

November 24, 1915.

Rehearing Denied December 22, 1915.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by Mrs. Pearl Kirksey against the Southern Traction Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Templeton, Beall & Williams, of Dallas, and Wear & Frazier, of Hillsboro, for appellant. Shurtliff & Cummings, of Hillsboro, and Scott & Ross, of Waco, for appellee.

RICE, J.

On the afternoon of May 9, 1914, James Kirksey, while returning in an auto from Dallas to his home at Hillsboro, was killed in a collision with a baggage car on appellant's interurban railway at Homewood, a small station on said road, where the highway from Dallas to Hillsboro crosses said railway; and this action is brought by appellee, his surviving widow, to recover damages on account thereof, alleging that appellant was guilty of negligence in running its car at a rapid rate of speed approaching said crossing, which was dangerous, without giving the usual signals. Appellant denied seriatim the material allegations of appellee's petition, and averred that it gave the customary signals before approaching the crossing, which its car was crossing in advance of said automobile; and likewise pleaded contributory negligence on the part of the deceased. There was a jury trial, resulting in a verdict and judgment for $5,000 in favor of appellee, from which this appeal is prosecuted.

It appears from the evidence that James Kirksey, the deceased, resided at Hillsboro, where he was then engaged, and had been for many years in the hotel business; that on the morning of the day in question he left Hillsboro in his machine for Dallas accompanied by his negro porter, Milton Graves; that he was familiar with the road he was traveling and the crossing where the accident occurred and had considerable experience in driving autos; in fact, was an expert driver. It seems that he left Dallas alone on his return home between 3 and 4 o'clock in the afternoon that he was killed, reaching Homewood crossing, the place of the accident, between 6 and 7 o'clock; that it was a prairie country, generally level, in and about the crossing; that the highway does not cross the railway track at right angles, but runs east and west in a course about north 60 east and south 60 west, while the railway runs practically north and south. The Missouri, Kansas & Texas Railway at this crossing runs about parallel with the interurban, a short distance west of it. There were several houses just east of the crossing on the north side of the highway. The first was a barn about 18 feet high, with a fence partly of plank and wire around it, about 180 feet from the crossing; the next a shop, being a two-story building, some 25 feet high, and about 75 feet distant from the barn; the next is a chicken house, about 8 feet high, some 8 steps from the shop; the next is a toilet, three steps from the chicken house; the next a smokehouse, guessed to be about 8 feet high, between 4 and 5 steps from the toilet; then a well with a tree standing near it, which with its foliage at that point would furnish some obstruction to the view; and the next house east of this is the Preston dwelling, which is about 75 or 100 feet from the smokehouse. North of the barn is a little cabin used for cotton pickers, and still further north of this in the field is a negro house.

Deloach, the only eyewitness to the accident, states that he lives at Preston's house on the road near the station; that just before the accident he saw a man in an auto coming from towards Dallas, who proved to be the deceased; that he wanted to go to Redoak, a small town on the same road, and that he waived to the man in the auto who was approaching him, with a view of getting a ride; that on waving the second time the man slowed, looked toward him as if to stop, but did not do so; that the witness was then standing in the roadway in front of the shop, 90 or 100 steps from the crossing; that as the man drove by he heard the noise and rumbling of the interurban, and, looking, saw it approaching; that he watched the deceased, who kept driving down the highway towards the crossing until the collision occurred; that he slowed some, but did not stop the machine, and at the time of the collision was traveling at about the rate of 10 miles an hour, while he thought the train was approaching at the rate of about 60 miles an hour; upon the happening of the accident he ran immediately to the deceased, who had been thrown from the auto, and part of his head and body was in the cattle guard. Witness helped to get him out and drew the...