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

• Decision Date: 08 October 1927
• Docket Number: (No. 1486.)
• Citation: 300 S.W. 93
• Parties: TEXAS & N. O. R. CO. v. CROW et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 93

300 S.W. 93

TEXAS & N. O. R. CO. v. CROW et al.^*

(No. 1486.)

Court of Civil Appeals of Texas. Beaumont.

October 8, 1927.

Rehearing Denied. November 30, 1927.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

Action by Mrs. Mattie B. Crow and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

F. J. & C. T. Duff, of Beaumont, Baker, Botts, Parker & Garwood, of Houston, and Singleton & Bevil, of Kountze, for appellant.

E. B. Pickett, Jr., of Liberty, for appellees.

O'QUINN, J.

On March 19, 1924, C. C. Crow was struck and killed by a locomotive and train of the Texas & New Orleans Railroad Company at a public road crossing in the town of Nome. This suit was instituted by his surviving wife, Mrs. Mattie B. Crow, for herself and as next friend for her three minor children, Clarence M. Crow, Carl C. Crow, and Margaret Crow, to recover damages for his death, and from a judgment in favor of plaintiffs the defendant has appealed.

The grounds of negligence set forth in plaintiff's petition, upon which they based their right to recover, were:

(a) That the train which struck and killed deceased was operated upon and over the public highway crossing at an excessive and dangerous rate of speed, to wit, about 50 miles an hour.

(b) That said train was operated without keeping a reasonable lookout to avoid injuring persons rightfully near to, and upon, said crossing.

(c) That defendant was negligent in failing to give any sufficient warning of the approach of the train by whistle and bell.

(d) That defendant negligently failed to provide and maintain a watchman or flagman at said crossing.

(e) That said crossing was one frequently used by the public at all hours of the day and night, and that upon the occasion in question another passenger train was upon a side track a few feet south of the main line, and that the rear end of the train on the side track was 30 or 40 feet east of the public road, where it crossed the side track and that, on account of said train being on the side track, the view of deceased as he drove along said highway and approached said railroad crossing was obstructed, and he was thereby prevented from observing the approach of the train from the east; that there were also obstructions that obstructed his view to the west; that under these circumstances defendant knew that said crossing was particularly and unusually dangerous, and failed to take proper precautions to protect and warn persons using or about to use said crossing. All these grounds of negligence, severally and collectively, were alleged to be the proximate cause of Crow's death.

Defendant answered by general demurrer, general denial, and special plea of contributory negligence of deceased in various particulars, specially that deceased drove upon the track without stopping, looking, or listening.

The cause was submitted to the jury upon special issues, in answer to which they found: (a) That the whistle was blown; and (b) the bell rung, as required by law; (c) that the train was operated at a rapid and dangerous rate of speed at the time it approached the highway crossing, under the facts and circumstances surrounding its operation; (d) that such operation of the train was negligence on the part of the defendant; (e) that such negligence was the proximate cause of the injury and death of deceased; (f) that deceased was not guilty of contributory negligence in going upon the railroad track at the public road crossing in question at the time and in the manner he did; and (g) awarding damages in the sum of $35,350, apportioned, $20,350 to Mrs. Crow, and $5,000 each to the three minor children, upon which findings judgment was accordingly entered.

The jury having found that the whistle was blown and the bell rung, therefore the finding that appellant operated its train at a high and dangerous rate of speed upon and over the crossing in question, and that same was negligence, and that said negligence was the proximate cause of the death of deceased, is that upon which, if it can be, the judgment must be affirmed, in the absence of contributory negligence on the part of deceased.

We are of the opinion that the evidence is sufficient to sustain the jury's finding that under the circumstances the train was operated at a high and dangerous rate of speed, and that such operation was negligence. The accident occurred in the town of Nome, near the railway depot, where the public road or highway crossed the railroad track. The time of the accident was 8:29 in the evening, and the train that killed deceased was a fast passenger train that was not scheduled to stop at Nome, and was running late. It was coming from the east and bound west, and deceased was driving along the highway in a closed Ford coupé, going at the time directly north across the track. No. 8, another fast passenger train coming from the west going east, and No. 7, the train that killed deceased, passed at Nome; No. 8 taking the side track on the south of the main line next to and parallel with the highway. No. 8 was slowly moving out as No. 7 approached and ran upon the crossing. Deceased lived at Saratoga. On the morning of the day of the accident he had gone to Beaumont, accompanied by his brother, John Crow, and his nephew, Percy Tomlinson, driving a Dodge car. That day in Beaumont deceased purchased a Ford truck and the Ford coupé in which he was driving when he was killed. Clarence Johnson, a negro, was employed to drive the truck back to Saratoga. The party left Beaumont about 6:30 that evening; the deceased driving the Ford coupé, Johnson the truck, and John Crow and Tomlinson the Dodge.

At the time the road from Beaumont to Nome consisted of partly hard surfaced and shelled road, and partly of just dirt road, and the latter part between China and Nome was in very bad condition, rough, muddy, some holes, and, as described by some of the witnesses, "bad enough to stick in some places," requiring the attention of the drivers to get by. This condition of the road was especially true of the last two miles before reaching Nome, as there had been heavy hauling over this road, cutting it up badly. The highway was the main and much-traveled route from Beaumont to the towns of Sour Lake, Saratoga, and Batson, and their vicinity generally, and the crossing at which the accident happened was the only one in that immediate locality. Travel from Devers to Sour Lake and vicinity also used this crossing. For some two miles the highway ran parallel with the railroad track before reaching Nome, and within 90 feet south of the track, and, just before reaching the crossing, suddenly curved and approached the track at right angles, leading across north. That night the weather was bad, it having rained that evening, was chilly, cloudy, and a drizzling rain still falling at times. The last stop of the train before the accident was in Beaumont. The distance from Beaumont to Nome was about 21 miles. The train was due to leave Beaumont at 7:56. It left, according to the testimony, from five to seven minutes late, arriving at Nome at 8:29. The time for the train to pass Nome was 8:29. The accident occurred at the Nome crossing at 8:29, so that the train arrived at Nome on schedule time. The schedule rate of speed for the train was 36 miles per hour. There was evidence tending to show that the train was running at the rate of 50 to 55 miles an hour, and the engineer stated that it was running at about 35 miles an hour. He testified that he was permitted to run 50 or 55 miles an hour, if necessary, to make up lost time. Testifying as to when the train left Beaumont, and as to its rate of speed, he said:

"As I said a while ago, I can't say whether I left on time or a few minutes late. I can find out easy. I have got my train report. They make a report on every trip. I do not show any arriving or leaving time. There is a report kept; the train sheet shows that. I won't say that we left Beaumont that night seven minutes late; I don't know. I won't say I did. Even if I did leave late, I was not trying to make up that time where I met No. 8. Before I met No. 8, if I was running late, I was running 50 or 55 miles an hour between those two points, that is, between Nome and Beaumont. * * * If I was late at that time I had the right to run up to 55 miles an hour if I wanted to."

The 21 miles was run in about 26 minutes. That would be near 50 miles an hour. The train ran 800 feet after striking deceased's car, and all the power of the brakes was on. The fireman on No. 7 testified that he saw deceased's automobile approaching the crossing when the train was about 500 feet from the crossing, and the automobile was about 50 feet from the crossing, but that he thought the automobile was going to stop; that, when the train was about 75 feet from the crossing, and the automobile about 20 feet from the crossing he realized that the automobile was not going to stop, and he told the engineer "to hold her," and that the engineer instantly applied the air brakes. The engineer testified that, when the fireman told him "to hold her," he immediately applied the brakes, and further testified:

"I heard the crash of the automobile — the crash of the collision. They had not had time to take hold before the collision."

So it will be seen that the train was going so fast and under such momentum that it traveled 75 feet after the application of the air brakes before they could "take hold" or have effect. Also, according to the testimony of the fireman, the train ran 425 feet while the automobile was going 30 feet, more than 14 times as fast as the automobile, and he said the automobile was going less than 10 miles an hour.

We think the evidence ample to show that the train was operated at a high and dangerous rate of speed, and that this, taken into consideration with the other circumstances surrounding the accident, the...