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

• Decision Date: 13 March 1952
• Docket Number: No. 2983,2983
• Citation: 248 S.W.2d 177
• Parties: TEXAS & N. O. R. CO. .v STEWART et al.
• Court: Texas Court of Appeals

Page 177

248 S.W.2d 177

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

No. 2983.

Court of Civil Appeals of Texas, Waco.

March 13, 1952.

Rehearing Denied April 24, 1952.

Baker, Botts, Andrews & Parish, Houston, Taylor & Dickens, Marlin, Frank A. Woods, Ben L. Parten, Franklin, for appellant.

Jones, Jones & Brian, Marshall, Grace & Palmos, Hearne, Leachman, Matthews & Gardere, Dallas, for appellees.

TIREY, Justice.

This is a suit for damages growing out of a truck collision with a passing train at a highway-railroad crossing in the city limits of Hearne in November 1949. In March 1950, Mrs. Jane Stewart, as surviving widow of Homer Charles Stewart, and as guardian of their two minor children, filed this suit against appellant for damages for his death. Plaintiffs grounded their cause of action on the negligence of the railroad company and among such grounds specifically alleged that the crossing was an unusually dangerous one at nighttime and that it was known to the defendant. Defendant denied such negligence and specially pleaded contributory negligence. The accident happened about 5:30 a. m. on November 29th, at which time it was dark and there was a heavy fog, and Stewart, the driver of the truck, drove it into the railroad train while it was crossing the highway. His parents also joined in the suit and asked for an award. The Liberty Mutual Insurance Company intervened in the suit seeking recovery of the amount it had paid as liability insurer of Knox Glass Bottle Company on account of Stewart's death. The Knox Glass Bottle Company intervened seeking recovery for damages to the truck trailer and cargo involved in the collision.

At the conclusion of the evidence the railroad company seasonably presented its motion for peremptory instruction, which was overruled. The jury in its verdict found that the crossing was an unusually dangerous one at nighttime and that defendant at the time of the collision knew, or by the exercise of ordinary care should have known, that the crossing in question was an unusually dangerous one at nighttime and that defendant's failure to maintain an automatic warning signal at the crossing to warn of the presence of the train on the crossing was negligence, and that such negligence was the cause of the collision; that the weather conditions existing at the time of the accident coupled with the existing conditions at the crossing made it more than ordinarily hazardous; that the defendant at the time of the collision knew, or by the exercise of ordinary care should have known, that the crossing was made more than ordinarily hazardous and that the failure of the defendant to place lighted fusees or temporary flagmen at the crossing at the time was negligence, and that such negligence was a proximate cause of the collision; that Stewart discovered the presence of the train on the crossing before the collision, and that such discovery did not cause him to be in a state of panic; that upon the discovery of the train he was confronted with an emergency and that in such emergency he exercised ordinary care; that the collision was not an unavoidable accident. The jury awarded the parents $4000.00, the widow $36,000, the minor children $12,000 each. The jury found the funeral expenses necessarily incurred to be $960, and fixed the damage to the truck at $3500, and fixed the reasonable cost of repairing the truck and trailer at $1500, and fixed the cargo damage at $864. The jury further found that the truck driver did not fail to keep a proper lookout, and that he did not wholly disregard the metal warning sign on the north side of the highway as he approached the crossing; that he did not wholly disregard the foggy atmospheric condition as he approached the crossing; that he did not wholly disregard the cross arm signal post at the crossing; that as he approached the crossing he did not fail to listen for the noise of any engine or train that might be near the crossing; that he did not fail to exercise ordinary care to ascertain that the way was clear and safe before he attempted to cross the railroad track. The jury also found that at the time the truck driver applied his brakes to the truck; that he was within the corporate limits of the city of Hearne and that he was operating the truck at a greater rate of speed than thirty miles per hour, but that such action of the driver was not a proximate cause of the collision; that the truck driver at the time did not operate the truck at a greater rate of speed than was reasonable and prudent under the conditions existing, having regard to the actual and potential hazards in approaching and crossing a railway grade crossing and the then existing weather conditions; that the truck driver did not fail to have his truck under such control as it could be stopped in the range of his vision while approaching the railroad crossing and that he did not fail to have the truck under proper control as he approached it; that the Knox Glass Bottle Company did not fail to have the truck so equipped as that by application of the foot brake it was capable of being stopped when moving at twenty miles per hour when moving on a dry, smooth level road free from loose material in thirty feet and capable of being decelerated at the rate of fourteen feet per second; that the Knox Glass Bottle Company did not fail to have the brakes on the truck and tractor in good working order and adjusted so as to operate as equally as possible with respect to the wheels on opposite sides of the vehicle; that the driver did not fail to make proper use of his brakes at the time in question. The railroad company seasonably filed its motion for judgment non obstante veredicto, which was overruled, and the court, on the 23rd of October 1950, entered judgment in behalf of plaintiffs and interveners on the verdict of the jury and adjusted the rights of the interveners and plaintiffs and no error is assigned by either plaintiffs or interveners on the awards of the court in this behalf. The railroad company seasonably filed its motion for new trial.

On December 18, 1950 the railroad company filed a plea to the jurisdiction of the court in which it set up the fact that Mrs. Jane Stewart, who sued in her own right as the surviving widow of Homer Stewart and as guardian of their two minor children, had in truth and in fact on the 3rd day of July 1950 (the trial began September 18, 1950) intermarried with James H. Stewart and failed to notify the court or anyone of such marriage and that such intermarriage constituted fundamental error and that the court should set aside the judgment. The court permitted the railroad company to file its first supplemental motion for new trial based upon such marriage and on December 21, 1950 appellee filed a stipulation admitting such marriage and thereafter on January 4, 1951 the railroad company under leave of the court's order filed its second supplemental motion for new trial based on such marriage. Thereafter the court required the following remittiturs: By Mrs. Stewart $18,000; the parents, $2000; by Glenda Ann Stewart and Sharon Kay Stewart, minors, each $2000. Appellees excepted to the order of remittitur. The court thereafter overruled appellant's amended motion for new trial and its plea to the jurisdiction of the court as well as its first and supplemental motions for new trial, to which rulings of the court the appellant excepted and prosecuted its appeal to this court. Appellees have assigned error to the court's order of remittitur.

Since the court submitted the question of liability solely upon the theory of an extra hazardous crossing, and since the defendant seasonably filed motion for instructed verdict and motion for judgment non obstante veredicto, assailing the judgment of the court to the effect that the evidence did not tender such issue, and further that the evidence tendered showed that deceased was guilty of contributory negligence as a matter of law that proximately contributed to his injuries and death, we will first give our consideration to the question of whether deceased was guilty of contributory negligence as a matter of law. A statement is necessary.

The grounds of negligence relied upon by appellees are substantially as follows: (a) that the location and grade of the highway was such that the crossing would be down grade from a crest some distance to the east and that the driver of a motor car would be upon the crossing or very close to it before it could be recognized as a railroad crossing; (b) that it was in constant use by heavy traffic; (c) that there were no lights at the crossing; (d) that there were some obstructions to the view on the margin of the track to the east, both to the north and south of the highway; (e) that all of these facts made the crossing an unusually dangerous one at nighttime; (f) that defendant had notice of the dangerous characteristics of the crossing and had been requested to erect warning signals such as blinker lights so as to warn of the approach or presence of the train at the crossing; (g) that it failed to place a flagman at the crossing and that such nelgligent acts were the proximate result of the injuries and death to driver Stewart; (h) that there was an extremely heavy fog about said crossing, a condition which was known to defendant to exist on the morning of the accident and to exist from time to time in such locality; (i) that visibility was greatly limited on account of the fog and that the weather conditions made the crossing of the defendant even more hazardous than the facts just alleged, and defendant negligently failed to warn the public of the occupancy of said crossing by a train through the lighting and stationing of fuses or other burning devices of like nature.

Defendant entered a general denial and in addition thereto specifically pleaded various grounds of negligence, among them being: (1) that the deceased was familiar with the railroad crossing and all the...