St. Louis, B. & M. Ry. Co. v. Brack

• Decision Date: 18 November 1936
• Docket Number: No. 9741.,9741.
• Citation: 102 S.W.2d 261
• Parties: ST. LOUIS, B. & M. RY. CO. v. BRACK et al.
• Court: Texas Court of Appeals

102 S.W.2d 261

ST. LOUIS, B. & M. RY. CO. v. BRACK et al.

No. 9741.

Court of Civil Appeals of Texas. San Antonio.

November 18, 1936.

Rehearing Granted February 3, 1937.

Appeal from District Court, Hidalgo County; Fred E. Bennett, Judge.

Action by Loula Brack and others against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded on rehearing.

Davenport & Ransome, of Brownsville, for appellant.

Gordon Griffin, of McAllen, for appellees.

BOBBITT, Justice.

This is a death action, brought by Mrs. Loula Brack, as surviving widow of O. M. Brack, deceased, for herself and for the use and benefit of her three minor children, against the St. Louis, Brownsville & Mexico Railway Company, and against L. W. Baldwin and Guy A. Thompson, trustees of said corporation, as a result of a collision between an automobile driven by the deceased and a freight train of the defendant, the St. Louis, Brownsville & Mexico Railway Company, while said train was standing still on the crossing of its tracks, where they intersect McColl road, which is a paved public road, running at right angles to State Highway No. 12, and intersecting said state highway about a mile and a half east of the city of McAllen, Tex. The said railroad tracks and State Highway No. 12 are adjoining, and run parallel, east and west, at such crossing; the state highway being to the south of the railroad tracks. The McColl road, however, is not a designated state highway, and it is not a through road at such crossing. The collision occurred about midnight, November 18, 1932, on a clear night. The moon was shining, and there were no obstructions on either side of the road near the crossing in question. The deceased was alone in his car, and was on his way to McAllen on business in connection with the harvesting and shipping of vegetables at the time of the collision.

The train with which Brack collided had moved from west to east, and was standing across the McColl road. The train crew was engaged in picking up cars from a switch or siding to the east of the said crossing. No member of the train crew was at or near the crossing when the collision took place, nor did any of them learn of the collision and death of Brack until the following morning. The caboose and one large yellow, or light colored, box car were standing on the main track just west of the McColl crossing, and attached to said box car, but standing across the paved portion of McColl road, was a low, black or dark colored oil tank car, and just to the east of said paved road and attached to said low oil tank car was another large yellow, or light colored, box car. The balance of the train — some twenty or twenty-five cars — were onto the east, on such main track. The engine and tender had been cut loose from the front of the train, driven still further to the east, and then pulled back on a switch or siding to pick up other cars to place in the train. There was plenty of room on the main track east of the McColl road and yet west of the siding or switch, where the engine cut out to pick up other cars, for the entire train to stand, which would have left the McColl crossing clear of the train. In other words, if the train crew had pulled the entire train to the east and clear of the said crossing, there was still plenty of room for the engine to pick up the other cars and make up the train. Instead of thus clearing the crossing, as the undisputed evidence shows they could and should have done, they stopped the train across the McColl crossing, leaving a low, black oil tank car immediately across the paved road, and only the one yellow box car and the caboose to the west of the crossing. The engine then cut loose from the front of the train and proceeded east some distance and then cut off on a switch to pick up additional cars.

It is clearly shown that the train was thus unnecessarily left standing across and blocking the McColl road crossing far in excess of the time allowed by law; it seems that the train was left there, in this situation, for twenty to twenty-five minutes. While the train was thus standing across the McColl road, two eyewitnesses to the collision, Scroggins and Dean, drove east down State Highway No. 12, and parallel to the railway track, passed the caboose and the one yellow box car, and turned left and to the north for the purpose of crossing the track and proceeding up the McColl road. They saw the train as it was standing, and thought the crossing was open; that is, while they observed the caboose and the one yellow car to the west of the McColl road and the other yellow cars to the east, they did not see the low, black oil tank car standing immediately across the paved portion of said road until they were within eight or ten feet of it, when they stopped their truck, cut off the engine and the lights, and waited for the train to pull out or open up the crossing. They thus waited several minutes, in any event in excess of five, and then they observed an automobile coming south down the McColl road toward the same crossing, where they waited on the other side of and to the south of the low, black oil tank car, attached to the train as above described. Scroggins stated that he "had a hunch" that the driver of the approaching automobile might run into the train, and that he got out of his waiting truck and stepped up to the train. He could see the automobile between the end of the low, black oil tank car and the attached yellow box car, just west of it, and the lights of the approaching automobile shone through such opening and on to State Highway No. 12, just south of the standing train, and into which the McColl road ran at the crossing. The automobile, as thus driven by Brack, crashed into the wheel of the west end of the low, black oil tank car on the north side, just about the time Scroggins walked up to the south side and opposite the west end of the oil tank car. The impact caused the front wheels of the automobile to bend around or become hooked around the wheel of the oil tank car. Scroggins and Dean went to the rescue of the driver of the automobile. They tried to pull the automobile back away from the oil tank car, and were not able to get it released until the train pulled out in a few minutes. By holding on to the automobile as the train pulled away, Scroggins succeeded in getting the automobile released. Dean, in the meantime, had run up towards the engine of the train to report the collision, but as the train pulled out just before he arrived or could make any of the train employees hear his calls for help, none of the trainmen knew of the collision, it seems, until the next day.

Brack, the driver of the automobile, was fatally injured in the crash, his body crushed, and he died soon thereafter, without regaining consciousness. The lights and brakes on the Ford car he was driving were not shown to be in any way defective. He was shown to have been a careful driver. It seems that the brakes of his car were not applied just prior to the crash; there were no signs on the road showing that he locked his wheels just before he ran into the train. He was driving about thirty-five or forty miles per hour. From all the facts and circumstances it seems to be clearly established that Brack approached the crossing with the belief that it was open; that is, the taller, yellow box cars standing immediately to the east and west of the paved road he was travelling, and the low, black tank car being across the road, and he being able to see Highway No. 12, just south of the train between the west end of the oil car and the east end of the yellow box car, he did not see the black oil car at all, and thought the train had been cut, and the crossing opened in the usual and customary manner, and he proceeded to drive his automobile across the track accordingly, but with the tragic result above stated.

For convenience, the parties will be here designated as they were in the trial court.

The plaintiffs charged the defendant with negligence in three respects: First, that defendant obstructed a crossing more than five minutes, in contravention of the statutes of Texas in such cases; second, the defendant placed said train of cars upon said crossing with a low, dark colored car on the crossing and flanked on both sides by tall, yellow or light colored cars; and failed to post any guards, sentinels, watchmen, or signal men at said crossing to warn approaching motorists; and, third, that defendant failed to place on the north side of said crossing any lights, flares, or other visible signals or warning devices to warn approaching motorists of the obstruction of said crossing.

The defendants L. W. Baldwin and Guy A. Thompson, trustees, were dismissed from the case; and the defendant the St. Louis, Brownsville & Mexico Railway Company first filed its motion to stay all proceedings, on account of the then pending bankruptcy proceedings in the District Court of the United States, Eastern Division, Eastern District of Missouri, which the court overruled.

Defendant filed its answers, alleging that plaintiffs' petition failed to state a cause of action; contending that plaintiffs' petition affirmatively showed that the deceased was guilty of contributory negligence, as a matter of law, for which reason plaintiffs could not recover; and by way of special defenses alleged:

(a) That the deceased failed to keep a proper lookout, which failure was negligence and a proximate cause of the collision in question.

(b) That the deceased drove his automobile immediately prior to the collision at such a rate of speed that he could not stop said automobile within the limits within which obstacles in the road could be distinguished by the lights then being used on said automobile; that such speed was negligence and the proximate cause of the collision in question.

(c) That the deceased drove his automobile towards the...