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

• Decision Date: 13 June 1934
• Docket Number: No. 9383.,9383.
• Citation: 74 S.W.2d 741
• Parties: TEXAS & N. O. R. CO. v. STRATTON et ux.
• Court: Texas Court of Appeals

Page 741

74 S.W.2d 741

TEXAS & N. O. R. CO. v. STRATTON et ux.

No. 9383.

Court of Civil Appeals of Texas. San Antonio.

June 13, 1934.

As Amended on Denial of Rehearing October 3, 1934.

Appeal from District Court, Kinney County; Brian Montague, Judge.

Suit by Clarence H. Stratton and wife against the Texas & New Orleans Railroad Company. From a judgment for plaintiffs, defendant appeals.

Reversed and rendered.

Baker, Botts, Andrews & Wharton, of Houston, B. W. Teagarden, of San Antonio, Boggess, La Crosse & Lowrey, of Del Rio, Frank Lane, of Brackettville, and David E. Hume, of Eagle Pass, for appellant.

Jones & Jones and Robt. M. Lyles, all of Del Rio, for appellees.

MURRAY, Justice.

Appellees, Clarence H. Stratton and wife, Carrie Stratton, instituted this suit against appellant, Texas & New Orleans Railroad Company, seeking to recover damages for the loss sustained by them in the death of their son and daughter, Joseph Richard Stratton and Carrie D. Stratton, caused by the collision of a Ford automobile in which their son and daughter were riding and a railroad train of appellant. The collision occurred about two miles north of the city of Eagle Pass, Tex., about 1 o'clock a. m. on January 15, 1933.

The case was tried before a jury, and upon their verdict judgment was rendered in favor of appellees against appellant in the sum of $7,497.67, with interest. The Texas & New Orleans Railroad Company presents this appeal.

The evidence shows that on January 15, 1933, four young people left Eagle Pass, Tex., in a Ford automobile going to Del Rio, and thence to Brackettville. Seated on the front seat were Joseph Richard Stratton and Joe Balsch, and on the back seat were Harold Berry and Carrie D. Stratton. Joseph Richard Stratton was driving the automobile. About two miles north of Eagle Pass, and while traveling on the highway leading to Del Rio, the automobile collided with a railroad train operated by the agents, employees, and servants of appellant. The two boys on the front seat were instantly killed, and the boy and girl on the back seat received injuries which resulted in their death a few days later.

At the point where the wreck occurred a spur track owned and maintained by appellant crosses the highway. The spur track runs east and west; the highway north and south. The Ford automobile was proceeding in a northerly direction, and the train was going in an easterly direction. The automobile struck the fourth car from the engine and was badly wrecked. It caught on fire and burned up. None of the occupants of the automobile lived to tell how the accident occurred. The train was estimated to be moving at the rate of from 3 to 10 miles per hour, while the automobile was estimated to be running at the rate of from 35 to 65 miles per hour.

The jury found that the automobile was not being driven at an unlawful rate of speed, so this would amount to a finding that it was not going faster than 45 miles per hour. A truck passed in front of the train just before the engine reached the highway, and met the Stratton automobile just before it collided with the train. The driver of this truck stated that he was driving between 15 and 17 miles per hour, and that the Stratton automobile slowed down to about the same speed as they passed each other. There was evidence that the night was cloudy and foggy and the visibility very poor. However, there was other testimony that the moon was shining brightly and the visibility excellent.

The findings of the jury as set out in appellees' brief were as follows:

"(a) That the failure of Appellant to erect and maintain a sign at the crossing, as is provided by the Statutes, was a proximate cause of the death of the two Stratton children.

"(b) That the operatives of the locomotive in question, in approaching said crossing failed to blow the whistle of said engine in such proximity of the crossing, as would, under the circumstances, have been reasonably calculated, to warn persons about to or in the act of using said crossing. That said failure was a proximate cause of the death of the two Stratton children.

"(c) That the operatives of said train failed to have the bell, on such locomotive engine, ringing continuously from the time the train started (at a point less than 80 rods from the crossing) until it had passed said crossing; and that such failure was a proximate cause of the death of the two Stratton children.

"(d) That the condition surrounding the crossing at the time of the collision was such as to render it more than ordinarily dangerous as a night time crossing and that such conditions were known and by exercise of ordinary care would have been known to defendant, its agents, servants and employees.

"That the failure of the operatives of the train, upon such occasion, to have some person stationed upon the Highway, in the proximity of said crossing with a light to warn said persons traveling upon said Highway and about to and in the act of using said crossing, of the presence of the train across same, was due to negligence; that such negligence was a proximate cause of the death of the two Stratton children.

"(e) That the failure of Appellant to keep and maintain a light at or in the vicinity of said crossing, was due to negligence; and that such negligence was a proximate cause of the death of the two Stratton children."

Appellant's first proposition is as follows: "The evidence in this case shows that the automobile in which the deceased parties, for whose death suit is brought, were riding, collided with a freight train of the defendant at a crossing on a public highway; that the train had just previously proceeded across the highway and was pulled slowly forward by the engine with a bright headlight, and that the headlight and the cars could be seen several hundred feet, and that the train was moving slowly across and was upon the crossing when the automobile in question struck the fourth car, or about the middle of said train of eight cars; that the highway upon which the automobile was traveling was open, wide, with view unobstructed, and practically level for a distance of eight or nine hundred feet, and that the automobile, even according to plaintiffs' testimony, was traveling at a rate of speed at approximately thirty-five miles an hour; that the engine attached to the train had remained stationary and started forward to recross the crossing just prior to the accident at a point less than eighty rods and only about 250 feet from the crossing, and if the train and cars could not have been seen in time to have averted the accident, neither could a crossing sign at the crossing on the opposite side of the train, for that matter, or even on the side from which the automobile approached, and even if there were no crossing sign and even if there were no bell sounded on the engine, and even if there were no crossing light or persons stationed at the crossing to warn approaching automobiles, such failures, if any, on the part of the defendant could not have been and were not the proximate cause of the collision between the box car and the train (automobile), and the train itself upon the crossing was sufficient warning and notice to persons about to and in the act of using said crossing."

We conclude that the above proposition should be sustained. The evidence clearly shows that the highway was straight and almost level for a distance of eight or nine hundred feet in the direction from which the Ford automobile was approaching the crossing. There were no obstructions, except houses and mesquite trees that set well back from the highway. The train was lawfully upon the highway, and was moving slowly in an easterly direction. The engine with its bright headlight had crossed the highway and had proceeded about 190 feet when the Ford automobile, in which Joseph R. Stratton and Carrie D. Stratton were riding, ran into the train and collided with the fourth car from the engine. Appellant was not guilty of negligence, proximately causing the collision, in not having other signs and lights and giving other signals to warn persons approaching the crossing of the slowly moving train across the highway; the presence of the train itself was sufficient warning. If the box cars and other cars could not be seen, then a cross sign or other signals could not have been seen. As is said in Philadelphia & R. Ry. Co. v. Dillon, 1 W. W. Harr. (Del.) 247, 114 A. 62, 65, 15 A. L. R. 894: "Here, then, the railroad company had a right to assume that the plaintiffs would act in a reasonable way to avoid running into the train of box cars while it was lawfully standing across the highway. If the defendant's trainmen had a right to assume that a reasonably careful man driving an automobile on a highway at night would use such lights and adopt such a rate of speed as that he could bring his machine to a standstill within the distance that he could plainly see by the lights on his machine a railroad box car twelve feet high standing across the highway motionless on a railroad track, and completely obstructing his passage along a straight unobstructed highway, then the defendant did not then omit to perform any duty by not showing lights, or giving other warning of the presence of the train."

In Texas & N. O. R. R. Co. v. Adams (Tex. Civ. App.) 27 S.W.(2d) 331, 334, it is said: "Manifestly, the presence of gates or a flagman upon the crossing would not have as effectively warned plaintiff of the obstruction of the crossing by the train as the presence of the train itself."

To the same effect is Thompson v. St. Louis Southwestern Railway Co. of Texas (Tex. Civ. App.) 55 S.W.(2d) 1084.

The above cases seem to be directly in point, except that in the present case we have the added fact that the night was foggy and the visibility was bad....