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

• Decision Date: 25 November 1942
• Docket Number: No. 1916-7958.,1916-7958.
• Citation: 166 S.W.2d 112
• Parties: TEXAS & N. O. R. CO. v. BRANNEN et al.
• Court: Texas Supreme Court

166 S.W.2d 112

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

No. 1916-7958.

Commission of Appeals of Texas, Section B.

November 25, 1942.

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

Action by C. R. Brannen and Mrs. C. R. Brannen against T. & N. O. R. R. Company for injuries received by Mrs. C. R. Brannen in a collision between a train of defendant and an automobile driven by second named plaintiff at a railway crossing.

To review a judgment of the Court of Civil Appeals reversing and remanding a judgment entered upon a directed verdict in favor of defendant, defendant brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

Schwartz & Schwartz, of Hallettsville, Moss & Moss, of La Grange, and Baker, Botts, Andrews & Wharton and Sewell, Taylor, Morris & Connally, all of Houston, for plaintiff in error.

C. C. Jopling, of La Grange, for defendants in error.

SLATTON, Commissioner.

C. R. Brannen et al. sued the T. & N. O. Railroad Company to recover damages for personal injuries received by Mrs. C. R. Brannen in a collision between a train of the railroad company and an automobile driven by Mrs. Brannen at a railway crossing in the town of Flatonia. At the close of the evidence adduced by Brannen et al., on motion of the railroad company, the trial court directed a verdict in favor of the railroad company. On appeal the judgment of the trial court was reversed and remanded by the El Paso Court of Civil Appeals. (Not published.)

The negligence of the railway company charged in the trial pleadings of Brannen et al. may be summarized as follows, towit: (a) failure to keep a proper lookout; (b) failure to warn either by whistle or bell of the approach of trains; (c) maintenance of an extra hazardous crossing. In passing upon the action of the trial court in directing a verdict in favor of the railway company we must apply familiar settled rules to the evidence, as there is no contention that the pleadings do not allege a good cause of action. The evidence must be viewed in its most favorable light and every legitimate inference must be indulged in favor of the complaining party. The evidence adduced on the trial of the case by Brannen et al. was primarily the testimony of Mrs. Brannen, which is as follows, towit:

"At the time of the accident, which was about 12:15 P. M., the day was a rainy one, and I had the windshield wiper running. I drove up to within a short distance of the tracks and stopped. I think that I stopped between the east end of the express building to midway of this building. I heard the whistle of the train but I did not see a train and I thought that the train was on another track, and I started forward, and then a train came from behind that building going toward the north, and I tried to stop, but my brakes evidently locked the wheels of the auto for my car skidded, and I struck head on about the point where there is something sticking out on the engine just to the rear of the cab of the engine. When my car struck the engine it was my opinion that my car bounced back from the engine. At least, the car did not hang onto the engine, and I also think that the engine stopped very soon after the car came into contact with the engine. I judge from that that the speed of the engine was not very great. I think that my speed was not in excess of about ten miles per hour. It was such a speed as could be accumulated after going from a full stop from the point where I have described as where I stopped to the point of the contact. At least the speed was not great. All the windows of the car were closed. My windshield wiper was running. There was some fog on the window-glasses of the car, with the exception of that space which was kept clear by the motion of the windshield wiper. I could not tell whether the bell of the engine was sounding or not. If such was being sounded, then I will say that I did not hear it."

After a careful...