Texas Mexican Ry. Co. v. Hoy, (No. 1142-5433.)
| Decision Date | 12 February 1930 |
| Docket Number | (No. 1142-5433.) |
| Citation | 24 S.W.2d 18 |
| Parties | TEXAS MEXICAN RY. CO. v. HOY. |
| Court | Texas Supreme Court |
Action by Willie Hoy, by next friend, against the Texas Mexican Railway Company. A judgment for defendant was reversed, and the cause remanded by the Court of Civil Appeals , and the defendant brings error. Judgment of the Court of Civil Appeals reversed, and that of the trial court affirmed.
A. R. Smith, of Laredo, and J. D. Dodson, of San Antonio, for plaintiff in error.
Phelps & Johnson and M. J. Raymond, all of Laredo, for defendant in error.
This was an action by next friend to recover damages for personal injuries sustained by Willie Hoy, a minor, on account of the collision of an automobile in which he was riding with a tank car which was standing at a point where plaintiff in error's main line crossed Guadalupe, one of the principal thoroughfares in the city of Laredo.
Negligence on the part of the railway company was alleged to be the failure to maintain a watchman at the crossing where the collision occurred to signal vehicular traffic of the approach of trains using the crossing and to display warning signals when such crossing was blocked by its cars.
It was alleged that when the car in which Hoy was riding approached the crossing there was a heavy rain falling and the street was in total darkness, save and except the lights from the headlights on the automobile; that because of the driving rain the headlights of the automobile could not penetrate the darkness to any distance, and because of such fact the automobile was driven violently in contact with the tank car of plaintiff in error, which was standing on and blocking the main line crossing.
It was averred that the automobile in which Hoy was riding was not under his control, nor did he have any right to direct the driver thereof; that at the time of the collision he was protecting himself against the driving rain storm by holding some old clothes over his head and shoulders, and that he knew nothing of the collision until he felt the violent shock thereof.
Plaintiff in error pleaded that the injured party knew of the presence of its track at Guadalupe street, and that trains and cars were operated across the same at uncertain hours, and that it was a point and place of danger, and, with knowledge of such fact, he failed to exercise ordinary care for his own safety, and was thereby guilty of negligence causing or contributing to cause the injuries of which he complains; that he had actual knowledge of the failure of the driver in charge of the car to exercise ordinary care in approaching the crossing, and that he made no effort to cause said driver to cease operating said car at a dangerous and reckless speed, taking into consideration the surrounding conditions, and that such conduct on his part was negligence which caused or contributed to bring about his injuries.
After hearing the evidence offered by defendant in error, the trial court sustained plaintiff in error's motion for an instructed verdict, which was accordingly returned.
Plaintiff in error insists that the undisputed facts leave no room for disagreement among reasonable minds that Hoy's own negligence caused or contributed to cause the injuries received by him.
After a careful review of the facts disclosed by the record, we have reached the conclusion that plaintiff in error's insistence in this respect is well taken, and must be sustained.
It is shown by the evidence that the injured party was thoroughly familiar with the railroad crossing where the accident occurred and knew that trains or cars might be using or occupying the same at any time of the day or night. He testified that he trusted to the driver to drive as he pleased, at a time when he knew, or in the exercise of reasonable care should have known, that a driving rain so obscured the vision ahead that an object could not be seen at any appreciable distance. His own testimony shows an utter failure to exercise any degree of care whatever for his own safety. This fact is apparent from the following testimony given by him:
All of the testimony shows that the car in which Hoy was riding was running at a speed of at least 20 miles an hour when it struck the tank car standing on the railroad crossing. Mack Seliski, the driver of the car, gave the following testimony with reference to the speed the car was being operated at the time of the collision:
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