Texas & N. O. R. Co. v. Crow

• Decision Date: 21 April 1932
• Docket Number: No. 5067.,5067.
• Citation: Texas & N. O. R. Co. v. Crow, 48 S.W.2d 1106, 121 Tex. 346 (Tex. 1932)
• Parties: TEXAS & N. O. R. CO. v. CROW et al.
• Court: Texas Supreme Court

Page 1106

48 S.W.2d 1106

TEXAS & N. O. R. CO. v. CROW et al.

No. 5067.

Supreme Court of Texas.

April 21, 1932.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Mrs. Mattie B. Crow and others against the Texas & New Orleans Railroad Company. To review a judgment of the Court of Civil Appeals (300 S. W. 93), affirming a judgment for plaintiffs, defendant brings error.

Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, F. J. & C. T. Duff, of Beaumont, and Singleton & Vevil, of Kountze, for plaintiff in error.

E. B. Pickett, Jr., and C. H. Cain, both of Liberty, for defendants in error.

HARVEY, C.

On the night of March 19, 1924, C. C. Crow was struck and killed by a west-bound passenger train of the Texas & New Orleans Railroad Company, at a public road crossing in the town of Nome. This suit was brought by his widow, Mattie B. Crow, for herself and as next friend for her three minor children, to recover damages on account of Crow's death. From a judgment in favor of the plaintiff, the railroad company appealed, and the judgment was affirmed by the Court of Civil Appeals, 300 S. W. 93.

The case was tried to a jury, on special issues. Among these was special issue No. 5, which reads as follows: "As the train in question approached and ran upon the crossing in question, was said train running at a rapid and dangerous rate of speed, under all the facts and circumstances surrounding the operation of said train at the time it approached and ran upon and across said crossing?" The jury answered: "Yes." In answer to special issues 6 and 7, the jury found that the company was guilty of negligence in so running said train such rapid and dangerous rate of speed at that time and place, and that such negligence was the proximate cause of the collision, and of the death of Crow.

The railroad company contends, in effect, that there is no evidence to support the verdict in the above respects. The following facts are shown in evidence:

Nome is a small town about 21 miles west of Beaumont. The surrounding country, for several miles, is flat prairie. The railroad runs east and west through the town, and is straight for several miles on either side of the crossing in question. The public highway from Beaumont to Nome runs west along the south side of the railroad track, and about 90 feet therefrom. On reaching a point opposite the crossing in question, the highway abruptly turns north and passes over the main line track at said crossing. This crossing is much used by the traveling public at all hours of the day. An electric crossing bell, of the sort in common use by railroads, was at the crossing. It stood on the north side of the railroad. This bell was in good working order and was ringing on the occasion in question. The passenger depot stands on the north side of the track and about 150 feet west of the crossing. A few feet south of the track, and about 230 feet west of the crossing, stands the freight depot, which, together with a warehouse and other structures in that vicinity, would prevent a traveler on said highway from seeing a train beyond said 230-foot point, until he got to a point about 12 or 15 feet of the crossing. About 100 feet east of the crossing, a side track diverges from the main line track, and runs along the south side thereof, and about 12 feet therefrom, for some 3,200 feet east, where it rejoins the main line track. About 50 feet south of the main line at the crossing, a different side track crosses the highway.

On the night in question, Crow was traveling west, in a Ford coupe, from Beaumont to Nome, along the highway above mentioned. It had rained that afternoon, and the road was very muddy. The night was chilly and cloudy; a stiff north wind was blowing, and a drizzling rain fell at intervals, but no rain was falling at the particular time of the accident in question. The windows on the right-hand side of Crow's coupe were closed. A negro named Johnson was traveling just ahead of Crow on the highway. Johnson was driving a Ford truck for Crow. They purposed to cross the railroad at the crossing in question.

The west-bound train in question was scheduled to pass an east-bound passenger train at Nome, without stopping. This west-bound train was due to leave Beaumont at 7:56. It left there from five to seven minutes late. In running the 21 miles to Nome, it made up this loss and arrived at the latter place on schedule time, to wit, 8:29. As the west-bound train approached Nome, the east-bound train (a long passenger train) had just passed over the crossing in question, and entered upon said side track which diverged from the main line track about 100 feet east of the crossing. The rear end of this east-bound train had to be at least 259 feet east of the crossing in order to clear the main line track on which the west-bound train was running. According to the testimony of most of the witnesses, this train, when the west-bound train passed it, had moved up near the eastern extremity of the side track, and was standing there—thus placing the rear end of the east-bound train some 2,000 feet or more from the crossing. But there is some evidence contradicting this, as we shall point out in the course of this opinion. The electric headlight of the locomotive drawing the west-bound train was burning brightly and, where no obstruction intervened, its rays of light illuminated the right of way for a distance of 100 feet on either side of the track, and for a long distance down the track in front of the train. The locomotive whistle was blown 80 rods from the crossing, and the bell was rung continuously from that point until the crossing was reached. The jury specifically found that the whistle was thus sounded and the bell thus rung. During said period, however, there was no other signal given by the operatives of the train, nor was the speed of the train reduced.

We now return to Crow and Johnson. As has been stated, the latter was driving a truck along the highway just ahead of Crow. There were no curtains on the right-hand side of the truck; and while Johnson was still on the highway before reaching the turn to the crossing, he (Johnson) heard the whistle of the west-bound train. Being thus apprised of the approach of the train, he stopped his truck when he had made the "turn" to the crossing. From this point onward to the crossing the road was graveled, but there were some "chug holes" in it. Crow passed the standing truck, on the left side of the truck, and continued on to the crossing, at the rate of about 10 miles per hour. The front wheels of the coupe which Crow was driving had just cleared the south rail of the main line track when the collision occurred. The coupe was demolished and Crow was killed. Johnson testified that at the time Crow passed him at the "turn" the west-bound train could not be seen, on account of the east-bound train intervening, but that the reflection of its headlight could be seen, and was seen by Johnson, above the...