Texas Electric Ry. Co. v. Wooten

• Decision Date: 10 June 1943
• Docket Number: No. 2519.,2519.
• Citation: 173 S.W.2d 463
• Parties: TEXAS ELECTRIC RY. CO. v. WOOTEN et al.
• Court: Texas Court of Appeals

173 S.W.2d 463

TEXAS ELECTRIC RY. CO. v. WOOTEN et al.

No. 2519.

Court of Civil Appeals of Texas. Waco.

June 10, 1943.

Rehearing Denied July 22, 1943.

Appeal from District Court, Hill County; J. D. Stephenson, Judge.

Action by Aline Wooten, individually and as next friend for her two minor daughters, against the Texas Electric Railway Company to recover damages for the death of plaintiff's husband in a collision between an automobile and defendant's interurban car. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Witt, Terrell, Lincoln, Jones & Riley, of Waco, for appellant.

Morrow & Calvert, of Hillsboro, for appellees.

RICE, Chief Justice.

This suit was brought by Mrs. Aline Wooten, individually and as next friend for her two minor daughters, against Texas Electric Railway Company for damages because of the death of her husband, W. R Wooten, as a result of injuries sustained by him when an interurban car of the defendant collided with his automobile at Campbell's crossing in Hill county, Texas.

The jury, in answer to special issues submitted, found the defendant guilty of primary negligence in several respects, proximately causing the collision, and also found the deceased guilty of contributory negligence in two respects, each of which they likewise found to be a proximate cause of the collision. The jury also found that the deceased was in a position of peril just prior to the collision; that the operator of the interurban car discovered his peril at a time when, by the exercise of ordinary care in the use of all the means at hand, having due regard for the safety of himself, the interurban car and its occupants, he could have avoided the collision; that the operator failed to use the means at hand and that such failure was the proximate cause of the collision. The jury further found that plaintiffs were damaged in the total sum of $18,275.

The defendant has appealed from the judgment of the District Court rendered in favor of the plaintiffs based on the findings of the jury.

Defendant takes the position that the evidence in this cause as a matter of law failed to show discovered peril, and that the findings of the jury in reference thereto are not supported by the evidence.

The accident occurred at Campbell's crossing about five miles south of Hillsboro on the main line of the interurban between Hillsboro and Waco. At this point the interurban tracks run approximately north and south, and a graveled public road, running approximately east and west, crosses the defendant's line and enters the Dallas-Waco highway approximately 50 feet west of the crossing.

From Campbell's crossing the graveled road runs east, or at right angles to defendant's tracks, for a distance of 1,589 feet, where it enters a road running approximately north and south. At the intersection last mentioned there are some farm buildings on the north side of the Campbell's crossing road for a distance of 193 feet. There are no obstructions west of these farm buildings interfering with the view of one traveling west on the graveled road approaching Campbell's crossing. From a point 2,130 feet north of the crossing to the crossing, there was nothing to obstruct the view of the operator of the interurban eastward along the graveled road for a distance of 1,396 feet. From said point 1,396 feet east of the crossing, the occupants of deceased's car, as it proceeded west, had an unobstructed view of defendant's line from the crossing to a point 2,130 feet north thereof. On October 1, 1941, at about 5:36 P.M., the deceased, accompanied by a Mexican man who was likewise fatally injured, was proceeding west on the graveled road when his car was struck by a southbound interurban at Campbell's crossing. The automobile was wedged under the front end of the interurban and was pushed ahead of it down the track for a distance estimated by the witnesses at from 300 to 399 feet.

The operator of the interurban testified he was running on schedule at a speed of 45 or 50 miles per hour; that at a point between 1,500 and 1,800 feet north of the crossing he blew the regular crossing whistle; and that as he proceeded toward the crossing "I was looking out both ways in front of the car." When he was approximately 600 feet north of the crossing he noticed the automobile proceeding west on the intersecting graveled road at a speed of 30 to 40 miles per hour; it was then 375 to 400 feet east of the crossing. He immediately began sounding the whistle and continued to do so until the collision occurred. When the interurban was within 300 feet, and the automobile 185 or 200 feet, of the crossing, he realized that the speed of the latter had not been diminished and applied his emergency brake. Prior to applying the emergency brake he did not slacken his speed. The automobile never did slow down from the time he first saw it. He further testified that he did not actually realize the automobile was not going to stop until it was 10 or 12 feet from the crossing; but, because it was approaching the crossing without slowing down, after he had begun whistling, he did not have any confidence in its stopping and he applied his emergency air brakes while the automobile was still approximately 200 feet from the crossing.

A witness, for the defendant, who conducted an experiment at the crossing in question, testified that at that point, with the interurban running at full speed, it was traveling 73.3 feet per second or 49.3 miles per hour, and that at this speed the emergency air brake would stop the interurban in a distance of 811 feet 2 inches; that the motor arrangement of the interurban was such that it had to be operated at either full speed or half speed.

While it had rained shortly prior to the accident and was still misting, the witnesses testified they could see without difficulty.

Bruno Ricos testified he was standing in the cab of the interurban; he saw Wooten's car approaching and heard the whistle of the interurban blowing. He did not notice any change in the speed of the interurban, nor did he feel any jar or shock indicating that the brakes were being applied before the collision.

Ira Holder, a negro, testified for defendant that he was sitting in the door of his shack some 1,600 feet east of the crossing. The whistling of the interurban attracted his attention. He saw the automobile approaching the crossing at 25 miles per hour; the interurban's speed was 45 miles per hour. The whistling continued until the collision occurred. After the whistling began the interurban's speed was reduced but that of the automobile was not until it reached the crossing, where it appeared to the witness that it "slowed down just a little bit for the crossing, just to go over it."

Miss Barnett, a witness for defendant, was sitting on the front seat of the interurban, next to the window on the east side. The unusual blowing of the whistle attracted her attention; she looked and saw the automobile approaching the crossing; it was then closer to the road intersection than to the interurban crossing. The motorman continued to blow the whistle and ring the bell from the time she first saw the car until the collision occurred. She further testified: "Well I just noticed this car coming from the east. We were going at the usual rate of speed, I didn't notice anything unusual about the rate of speed, and I kept noticing this car coming from the east and it seemed to keep the same rate of speed all the time, and I made mention to the girl who was next to me, Miss Wilson, that it didn't look like he was intending to stop, he didn't make any attempt to slow down, and about that time I notice a little jerk in the car as if the brakes might have been applied, and we had this crash there at this Campbell crossing."

A former employee of defendant testified for plaintiff that he had been a motorman in the employ of defendant for seventeen years; that an interurban car of the type involved in the collision, when operated at full speed, could be stopped by the application of "straight air" in a distance of from 450 to 750 feet and in a shorter distance by the application of the emergency air brake; that the application of the emergency brake will cause a jerk; that the power does not cut off automatically but must be cut off by pulling the controller around by hand; that the brakes are applied with the right hand; that if the brakes are applied but the power is not cut off the car will keep moving until finally dragged down or a re-set is blown. He further testified that it sounded impossible to him that an interurban could run up on an automobile to such an extent that the car was wedged under the front end of the interurban and dragged along the cross-ties for a distance of 400 feet, if the emergency brake on the interurban had been applied at a point 300 feet before reaching the point of collision.

When the sufficiency of the evidence is challenged, the rule is that the evidence and all legitimate inferences therefrom must be considered in its most favorable aspect in support of the judgment, excluding all unfavorable and contradictory evidence. 3 Tex.Jur. 1090, sec. 765; Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Austin v. Cochran, Tex. Com.App., 2 S.W.2d 831; Jackson v. Watson, Tex.Com.App., 10 S.W.2d 977; International-G. N. R. Co. v. Acker, Tex.Civ. App., 128 S.W.2d 506, 510, points 5 and 6.

If, from the evidence and the legitimate inferences that may be drawn therefrom, reasonable minds may differ as to whether or not the defendant's motorman actually discovered the perilous position of the injured party in time to have averted injury to him by the use of all the means at his command commensurate with safety to himself, the interurban car and the passengers thereon, and failed thereafter to use ordinary care to do so, then the issue of discovered peril would become a question...