St. Louis Southwestern Ry. Co. v. Lewis

• Court: Texas Court of Appeals
• Writing for the Court: Willson
• Citation: St. Louis Southwestern Ry. Co. v. Lewis, 297 S.W. 896 (Tex. App. 1927)
• Decision Date: 21 July 1927
• Docket Number: (No. 3408.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LEWIS.

297 S.W. 896

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LEWIS.

(No. 3408.)^*

Court of Civil Appeals of Texas. Texarkana.

July 21, 1927.

Rehearing Denied September 15, 1927.

Appeal from District Court, Camp County; Hugh Carney, Judge.

Suit by John Wesley Lewis against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

This was a suit by appellee against appellant for damages for injury he claimed he suffered to his person as the result of a collision between an automobile he was riding in and one of appellant's passenger trains. Appellee alleged that the collision occurred at a point where appellant's line of railway crossed a public road in Pittsburg (a town with 2,500 to 3,500 inhabitants), and that same was due to negligence on the part of appellant and its employees in charge of the train, in that said employees failed to blow the whistle and ring the bell of the locomotive as it approached the crossing, as required by law (article 6371, R. S. 1925), in that said employees operated said train over said crossing at "a dangerous, excessive, unreasonable, and high rate of speed," and in that appellant failed "to have and maintain at said crossing at said time a flagman, watchman, gates, bell, or gong to warn people about to pass over said crossing of the approach of its trains."

It appeared from evidence heard at the trial that the accident occurred at about 10 o'clock of the morning of Saturday, November 14, 1925. At the point where it occurred appellant's main line track ran north and south and the road ran east and west. Thirty-seven feet west of said track and running parallel with it was a side or switching track, and 137 feet farther west and also running parallel with said main line track was another side or switching track. Between the two side tracks, about 5 feet west of the one first mentioned and about 15 feet north of the road, was a structure 107 feet north and south by 114 feet east and west, known as the Fertilizer building, which obscured the view a person traveling the road and approaching the crossing from the west had of the main line track of the crossing. The testimony was that such a person could not see any distance on the main track north of the crossing until he passed east of the southeast corner of said building, that after he passed that corner and reached a point 14 feet west of the center of the side track first mentioned he could see 250 feet north on said main line track, and when he reached a point 3 feet farther east could see 1,000 feet north on said main line track. The automobile in which appellee was riding, moving east on the street at the rate of 5 or 6 miles an hour, reached the crossing at the time the train, moving south on the main line track, reached same. Appellee was sitting on the front seat of the automobile, to the right of the driver thereof, a boy about 15 years old named Gaylord Rogers. The boy's father and two boys named Sheppard were sitting on the rear seat of the automobile. According to the testimony of appellee as a witness, the train was "something like 40 or 50 feet from the crossing" when he first saw it. He jumped from the automobile as soon thereafter as he could. About that time the boy was trying to avoid a collision with the train by turning the automobile northward. He failed, and some part of the locomotive striking the right front spring of the automobile turned it around and against appellee, thereby injuring him, he alleged.

The case was submitted to the jury in a general charge in which the court, in appropriate language, instructed them to find for appellee if they believed appellant was guilty of negligence in any of the ways charged which was a proximate cause of the accident. The verdict was a general one and in appellee's favor for $8,500.

King, Mahaffey & Wheeler, of Texarkana, J. A. Ward, of Mt. Pleasant, and J. A. Guest, of Pittsburg, for appellant.

J. H. Beavers, of Winnsboro, and C. Everett Bryson, of Pittsburg, for appellee.

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

We think the contention that the evidence did not warrant a finding that appellant was guilty of actionable negligence in any of the ways charged against it should be overruled.

The evidence as to whether those in charge of the train complied with the law (article 6371, R. S. 1925), requiring them to blow the whistle and ring the bell of the locomotive as it approached the crossing, was conflicting. That tending to show the law was ignored was sufficient to support the finding involved in the verdict, and that tending to show it was complied with would have supported a finding to that effect. Such being the state of the evidence, this court cannot say the finding of the jury was not warranted. Waterman Lumber Co. v. Shaw (Tex. Civ. App.) 165 S. W. 127.

There was evidence that, besides freight trains, appellant regularly operated four passenger trains a day over the crossing, and that a great many people traveled the road over same. The witness Shaddix said there was "a continuous passing of the crossing," and the witness Hess testified that people were "passing that road continually in the daytime." There was evidence that because of the Fertilizer building referred to in the statement above, and other buildings north of same, employees of appellant in charge of trains approaching the crossing from the north could not see persons on the road approaching same from the west until such persons got within 40 or 50 feet of the crossing, and that such persons could not see trains approaching the crossing from the north until they got within a like distance of the crossing. There was evidence that appellant had made no provision at the crossing for warning persons traveling the road when a train was approaching same, and that on the occasion in question the whistle of the locomotive was not blown nor the bell thereof rung as the train approached the crossing. And there was evidence the jury had a right to believe that the train, at the time of the accident, was "drifting" or coasting down grade at the rate of 25 or 30 miles an hour. With the circumstances stated in evidence before them, we think the jury had a right to say that those in charge of the train were guilty of negligence in operating it at that rate of speed. Smith v. Railway Co. (Tex. Com. App.) 277 S. W. 103.

Whether the evidence warranted the finding involved in the verdict that appellant was guilty of negligence in failing to have "a flagman, watchman, gates, bell, or gong" at the crossing to warn travelers on the road of the approach of the train depended on whether the crossing was an "unusually dangerous" one or not; for the law is clear, if the crossing was an ordinary one (that is, not unusually hazardous), appellant owed no duty to provide means for giving such warning. Tisdale v. Railway Co. (Tex. Sup.) 228 S. W. 133, and cases cited in a note thereto in 16 A. L. R. 1273. We think the inference the jury had a right to draw from the testimony that on the occasion of the accident the train was operated at the rate of 25 or 30 miles an hour over the crossing, and the testimony (hereinbefore referred to) showing that people were continually passing over the crossing and that those traveling from the west could not see an approaching train until they were within 40 or...