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

• Decision Date: 28 February 1940
• Docket Number: No. 7173.,7173.
• Citation: 136 S.W.2d 1113
• Parties: TEXAS & N. O. R. CO. v. COMPTON.
• Court: Texas Supreme Court

136 S.W.2d 1113

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

No. 7173.

Supreme Court of Texas.

February 28, 1940.

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

Action by Beatrice Compton against the Texas & New Orleans Railroad Company to recover damages for the death of plaintiff's husband. A judgment for defendant was reversed and the cause remanded by the Court of Civil Appeals, 96 S.W.2d 239, and defendant brings error.

Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Baker, Botts, Andrews & Wharton, of Houston, and Armstrong, Cranford, Barker & Bedford and W. E. Cranford, all of Galveston, for plaintiff in error.

Stewarts and Bryan Economidy, both of Galveston, Noble Carl, of Houston, and H. J. Rayl and C. E. Loeb, both of New Orleans, La., for defendant in error.

HICKMAN, Commissioner.

This suit was brought by Mrs. Beatrice Compton against Texas & New Orleans Railroad Company for damages sustained by her on account of the death of her husband, Charles Compton. The trial court peremptorily instructed a verdict that she take nothing and rendered judgment accordingly. The Court of Civil Appeals at Galveston, by a majority opinion, reversed the trial court's judgment and remanded the cause. 96 S.W.2d 239.

The material facts are few. About one o'clock at night Grover Carrington left Texas City in his automobile for Galveston. Charles Compton and others accompanied him on the trip. The night was dark and foggy and the visibility was poor. A few miles from Texas City the automobile ran into a slowly moving freight train and Compton's death resulted from the collision. The highway ran over a flat prairie country, and in the vicinity of the intersection there were no trees, houses or other obstructions to the view. The highway and railroad track crossed at right angles. The train consisted of 87 cars, and the automobile struck the sixtieth car from the engine. The train was moving eight or ten miles per hour and the automobile much faster.

One ground of negligence relied upon was the alleged failure of the employees of the railroad company to ring the bell and sound the whistle on the locomotive when approaching the crossing, as required by R. S. Art. 6371, Vernon's Ann. Civ.St. art. 6371. The positive testimony of the railroad's witnesses was that the whistle was blown and the bell rung in accordance with the requirements of the statute. The only testimony to the contrary was that given by Grover Carrington, the driver of the automobile, and Bertha Thomas, another occupant thereof, who testified, in substance and effect, that they would have heard the whistle and bell, had they been sounded, but they were not sounded. The train was moving not faster than ten miles per hour. At the time of the collision the locomotive was more than one-half mile distant from the intersection. It had crossed the intersection at least three minutes before that time. The automobile was traveling not less than thirty miles per hour, and it must have been more than one and one-half miles distant from the intersection at the time the locomotive passed over the same. Under these circumstances and surroundings, the testimony of these witnesses amounted to no more than a mere surmise or suspicion. It was at most but a scintilla of evidence that these warnings were not given, and the scintilla doctrine is not recognized by this court. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Another ground relied upon was the failure of the railroad company to use extraordinary means to give warning, such as to equip its freight cars with lights and have same burning at night, to equip its crossing with signal bells or lights or to have a watchman stationed thereat. Negligence cannot be based upon such omissions, for...