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

• Decision Date: 14 February 1941
• Docket Number: No. 14252.,14252.
• Citation: 148 S.W.2d 229
• Parties: TEXAS & N. O. R. CO. v. YOUNG, District Judge.
• Court: Texas Court of Appeals

148 S.W.2d 229

TEXAS & N. O. R. CO. v. YOUNG, District Judge.

No. 14252.

Court of Civil Appeals of Texas. Fort Worth.

February 14, 1941.

Original mandamus proceedings, consolidated by the Court of Civil Appeals, by Mrs. Ida M. Hornburg and others and by the Texas & New Orleans Railroad Company against Bruce Young, District Judge.

Writs of mandamus denied.

Thompson & Barwise and Seth Barwise, all of Fort Worth, for relator Texas & N. O. R. Co.

Culbertson, Morgan, Christopher & Bailey and Cecil A. Morgan, all of Fort Worth, for cross-relator Ida M. Hornburg.

SPEER, Justice.

We have before us two applications for writs of mandamus against Hon. Bruce Young, Judge of the 48th District Court of Tarrant County, in which both defendant and plaintiffs in cause No. 27597-A, Mrs. Ida M. Hornburg et al. v. Texas & New Orleans Railroad Company, are asking that we grant the writ requiring said judge to enter judgment in favor of the respective parties on a jury verdict theretofore returned.

We have consolidated these two proceedings, and irrespective of the fact that the parties to the suit style themselves relators and Judge Young as respondent, we shall refer to the parties as "company" and to plaintiffs as they appeared in the lower court.

By petitions for the writs, both the company and the plaintiffs contend that the verdict of the jury entitles them to a judgment, and ask that we require the judge to so enter it.

Obviously, in such controversies as this, the pleadings, court orders and statement of facts are not before us. The respective parties have made a statement of the nature and result of the suit below, which discloses that plaintiffs sued the railroad company for damages growing out of the death of Ralph Hornburg. There is no conflict in the statements. Both parties have attached to their respective petitions copies of the questions and answers which make up the jury verdict, and upon the verdict both rely for the relief sought.

In such a situation as this, we must assume that the pleadings and evidence were sufficient to authorize the submission of the special issues, and that the evidence supports the answers made. Upon these assumptions we must determine which of the parties, if either, is entitled to judgment.

By its verdict, the jury convicted the company of negligence, because (a) the crossing on Berry Street (in the City of Fort Worth) was more than ordinarily dangerous at night; that failure to maintain at the crossing a warning signal was negligence and a proximate cause of the accident; and (b) failure to maintain a proper light at the crossing was negligence and a proximate cause. The company was acquitted of negligence relating to discovered peril. The jury verdict acquitted deceased of contributory negligence insofar as the manner of operating his automobile is concerned.

Notwithstanding the findings by the jury of negligence by the company, it contends here that because of findings of contributory negligence by deceased which proximately contributed to the accident, it is entitled to judgment. Strangely enough, plaintiffs rely upon the same special issues and answers in their contention that judgment should be entered for them. These issues and answers are as follows:

"Question No. 22: Do you find from a preponderance of the evidence that as Ralph Hornburg (deceased) approached the crossing in question, he failed to keep a proper lookout in the direction from which defendant's train was approaching?"

"In connection with this question you are instructed that by the term `proper lookout' is meant the kind and character of lookout which a reasonably prudent person in the exercise of ordinary care for his own safety, would have kept under the same or similar circumstances." The answer was "Yes."

Question 23 was submitted and to be answered only in the event the jury had answered No. 22 as it did, in the affirmative. It inquired if the failure to keep a proper lookout was the proximate cause or contributed to cause the accident. This inquiry was answered "Yes."

In answer to question 24 the jury found that deceased did not know of defendant's approaching train in sufficient time to enable him, by the exercise of ordinary care, to avoid the collision.

"Question 25: Do you find from a preponderance of the evidence that a person, exercising ordinary care in driving a car west along Berry Street, approaching the railroad crossing at the time and place in question, would have discovered the approach of defendant's train at a time when, by the exercise of ordinary care, such driver could have avoided colliding with defendant's train?" Answer: "No."

It is argued by the company that the foregoing questions and answers convict deceased of contributory negligence and entitle it to a judgment, and plaintiffs contend that when questions 22 to 25, both inclusive, are considered together, number 25 and its answer acquits deceased of negligence and entitles plaintiffs to judgment on other findings of negligence by the company and the amount found by the jury.

Plaintiffs rely upon the case of Gulf, C. & S. F. Ry. Co. v. Russell, 125 Tex. 443, 82 S.W.2d 948. Company counsel have filed no briefs with us, and in oral presentation of their petition admitted that the Russell case rendered their right to judgment somewhat doubtful.

A careful study of the Russell case reveals that plaintiff sued the company for damages and alleged as negligence of the company, a failure by the train operatives to keep a proper lookout for his presence on the track at the time and place of his injuries. The case was tried to a jury on a general charge. The substance of the charge on negligence was that if the jury found from the evidence that the employees failed to keep a proper lookout and that such failure was negligence and a proximate cause of the injury, they should find for the plaintiff. Under the charge, a verdict was rendered for plaintiff, and the court reversed and rendered judgment for the company under a holding that the verdict had no support in the evidence. The court reviewed the evidence at length and indicated that it indisputably appeared that under the existing conditions, the operatives of the train could not have seen Russell if they had kept a reasonable lookout; that Russell was a trespasser and the company only owed him a duty as such; that in the absence of...