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

• Decision Date: 07 June 1934
• Docket Number: No. 2555.,2555.
• Citation: 72 S.W.2d 384
• Parties: TEXAS & N. O. R. CO. v. DICKSON.
• Court: Texas Court of Appeals

72 S.W.2d 384

TEXAS & N. O. R. CO. v. DICKSON.

No. 2555.

Court of Civil Appeals of Texas. Beaumont.

June 7, 1934.

Rehearing Denied June 13, 1934.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Suit by J. W. Dickson against the Texas & New Orleans Railroad Company, in which defendant set up a cross-action and in which the General Exchange Insurance Corporation intervened. Judgment for plaintiff and intervener, and defendant appeals.

Affirmed.

Davis, Avery & Wallace, of Center, and R. L. Arterbury, of Houston, for appellant.

Dallas Ivey, of Center, for appellee.

COMBS, Justice.

This is an appeal from the district court of Shelby county. Appellant was defendant and appellee plaintiff in the court below and we will, for convenience, so designate the parties.

Plaintiff, J. W. Dickson, recovered a judgment against defendant for $2,000 for personal injuries sustained by him October 22, 1932, when his automobile was struck by a freight train of defendant at a public crossing in the town of Tenaha. The General Exchange Insurance Corporation, which intervened in the suit, was awarded $670, for damage to plaintiff's automobile, on which it carried the insurance.

The accident occurred at about 8:30 at night as plaintiff was driving his automobile from the home of Mr. Davis, where he was spending the night, to the garage of Marvin Davis, where he intended to store it for the night. As he drove across defendant's track near the depot, the rear of a string of twelve freight cars which were being backed into a side track struck his automobile and pushed it about 100 feet down the track, demolishing it and injuring plaintiff. No complaint is made as to the amount of the verdict.

The jury convicted the defendant of negligence proximately causing plaintiff's injuries, on the following issues:

"Did the operatives of defendant's train keep a proper lookout for plaintiff and other persons about to use the crossing as they backed the train toward the crossing?"

To which the jury answered: "No."

"Was the defendant negligent in not maintaining a flagman at the crossing in question?"

To which the jury answered: "Yes."

"Was the defendant negligent in failing to have the crossing lighted?"

To which the jury answered: "Yes."

The jury found against the defendant on all issues of plaintiff's negligence.

By several assignments, the defendant complains that the pleadings and the evidence do not support the jury's findings convicting it of negligence on the above issues. Plaintiff pleaded that defendant's railroad runs through the public square of the town of Tenaha, an incorporated town, in an east and west direction, with its depot near the center of the square; that there is one side track on the south and two on the north of the main line track; that these side tracks compose the switch yard, and strings of cars are from time to time stored thereon; that where the public highway crosses these tracks, and where the collision happened, the tracks are so near together that a vehicle attempting to cross is unable to clear the danger until all tracks are crossed; that two public highways extend along these tracks parallel thereto, one on either side, while the public highway which plaintiff was traveling extends north and south at right angles across the tracks; that the business part of town, with its stores and places of business, is located on the south side of the tracks, and on the north of them, a short distance from the crossing, are two hotels and the public school, all of which necessitates the frequent and constant use of this crossing by many people both day and night, and particularly during the early part of the night while the stores are still open, as they were when the collision occurred; that the highway along which plaintiff approached the crossing is slightly depressed; that just west of the crossing, the direction from which the train of cars approached, and on the north side of the tracks, there is a mound or gradual elevation, to the extent that one approaching along the highway at night and seated in an automobile between 15 and 100 feet north of the crossing is unable to see a train approaching from the west unless it has a headlight on the end of the train; that the streets of the town are not lighted, nor is the crossing lighted; that the crossing, by reason of these matters, is extremely hazardous, or dangerous as a nighttime crossing, making it the duty of the defendant to place a light at the crossing and provide a flagman for the safety of the public at all times during the night when trains are about to pass, and especially so when freight trains are about to back onto the crossing; and that on the occasion in question the defendant performed none of these duties. Defendant's failure to light the crossing and to provide a flagman were alleged specifically, along with other negligent acts, as negligence proximately causing plaintiff's injuries. The defendant answered by general demurrer, general denial, and pleaded various acts of contributory negligence. It also, by way of cross-action, sued the plaintiff for $20,000 actual and $5,000 exemplary damages for personal injuries sustained by its brakeman, John Poole, who was riding on the car which struck plaintiff's automobile, and who suffered injuries to both legs, requiring their amputation above the knees. In this connection it pleaded an assignment to it of Poole's claim, for which it had paid Poole $4,700.

Plaintiff's evidence was to the effect that he was driving south on the public highway at about 15 miles per hour, and upon approaching the crossing he slowed down and looked in either...