Texas & N. O. Ry. Co. v. Adams

• Decision Date: 17 April 1930
• Docket Number: No. 1918.,1918.
• Parties: TEXAS & N. O. RY. CO. v. ADAMS.
• Court: Texas Court of Appeals

27 S.W.2d 331

TEXAS & N. O. RY. CO. v. ADAMS.

No. 1918.

Court of Civil Appeals of Texas. Beaumont.

April 17, 1930.

Rehearing Denied April 23, 1930.

Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.

Action by F. W. Adams against the Texas & New Orleans Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Baker, Botts, Parker & Garwood and Arterbury & Coolidge, all of Houston, for appellant.

Adams & McAlister, of Nacogdoches, for appellee.

O'QUINN, J.

Appellee sued appellant for damages for personal injuries growing out of a collision between an automobile in which he was riding and a freight train at a public crossing on appellant's track some four miles north of the city of Nacogdoches, Tex., March 27, 1928. The collision occurred at about 1:20 a. m. at night, while appellant was backing its engine and tender across the public road crossing to make a coupling with freight cars standing on the west side of the crossing. Appellee's car struck the engine just under the engineer's seat. The train of appellant was doubling what is known as Church hill, a grade on appellant's line, and had cut the train in two near a public crossing known as North Church Crossing, leaving the rear portion of the train near to, and west of, the crossing, and had carried the head end of the train on to Redfield switch, and was returning to pick up the part left, and was backing the engine and tender over the crossing to couple with the cars standing within a few feet of the crossing when the collision occurred.

Appellee alleged that his injuries proximately resulted from the following alleged acts of negligence on the part of appellant: (a) Failure to maintain a flagman or watchman at said crossing to warn persons about to enter upon said crossing of the approach of the engine and tender; (b) failure to construct and maintain gates or interlocking bars at said crossing, to be closed while trains were occupying or passing over said crossing; (c) failure to have a trainman stationed at the rear end of the tender in such position as to be able to flag the engineer in the event of danger; (d) failure of the engineer to keep a proper lookout in the direction the train was backing to discover appellee's approach to the crossing; (e) failure to ring the bell or blow the whistle, as required by law; (f) failure to have a brakeman on the rear of the tender as it approached the crossing to flag appellee; (g) failure to clear the approach of its right of way so as to enable those operating trains to see those traveling the highway; and (h) failure of the engineer to use ordinary care, by the use of all the means at hand, to stop the train after discovering appellee and realizing his perilous position.

Plaintiff further alleged that, in "doubling" the train at the time and in the manner in which it was done, defendant was guilty of gross negligence, and because of the circumstances permitted to exist by defendant requiring the said train to be doubled defendant was guilty of such gross negligence that plaintiff was entitled to recover exemplary damages in the sum of $15,000, for which he prayed judgment.

Defendant answered, among other things, by general demurrer, general denial, and a plea of contributory negligence on the part of the plaintiff.

The case was tried to a jury upon special issues, in answer to which they found:

(a) That defendant failed to maintain a watchman to flag the crossing while the engine was backing over it. That such failure was negligence, and such negligence a proximate cause of plaintiff's injuries.

(b) That the crossing was one unusually hazardous and dangerous, and that the failure of defendant to maintain gates at the crossing was negligence, and such negligence a proximate cause of plaintiff's injuries.

(c) That defendant failed to have a flagman on the rear of the tender in a position to signal the engineer in the event of danger. That such failure was negligence, and such negligence a proximate cause of plaintiff's injuries.

(d) That defendant's right of way was obstructed "so that in operating its train from east to west in approaching said crossing to prevent running onto and across the crossing without seeing those traveling along the highway in time to prevent collision." That such obstruction was negligence, and such negligence a proximate cause of plaintiff's injuries.

(e) That the operation of the engine and tender over and across the crossing as it was operated at the time of the injury placed the plaintiff in a position of peril, and that the employees of defendant knew of the perilous situation of plaintiff in time, by the exercise of ordinary care, with the use of all means at hand, to have avoided injuring plaintiff, and that their failure to do so was a proximate cause of plaintiff's injuries.

(f) That the employees of defendant in charge of said train failed to keep a "constant vigil and lookout" in the direction the engine was backing to discover plaintiff and avoid injuring him. That such failure was negligence, and such negligence a proximate cause of plaintiff's injuries.

The issue as to whether or not the defendant failed to ring the bell or blow the whistle, as required by law, was not submitted to the jury.

As to negligence on the part of plaintiff, the jury found: (a) That plaintiff was not driving in excess of 35 miles per hour at the time he approached the crossing; (b) that as he approached the crossing he had his car under control; (c) that plaintiff, "when he was within such distance of the track that he could have seen a train, and when he was in such distance from the track that he could have stopped his car before reaching same," did look for a train; (d) that plaintiff, after ascertaining that a train was in the vicinity of the crossing, was not negligent in continuing on toward the crossing without slackening his speed; (e) that plaintiff's failure to stop his car before reaching the track, for the purpose of ascertaining whether he could cross same in safety, was not negligence.

On the issue of damages, the jury found in favor of plaintiff for $5,000 actual damages and $3,000 exemplary damages. Judgment was accordingly entered, motion for a new trial was overruled, and defendant brings this appeal.

At the close of the testimony, defendant requested the court to instruct the jury to return a verdict in its favor, which was refused. It also filed motion to set aside the findings of the jury. This was denied.

Appellant's first five propositions complain that the court erred in refusing to give its requested charge for an instructed verdict. It is contended that the requested charge should have been given because: (1) The evidence failed to show any causal connection between the acts of defendant complained of by plaintiff and plaintiff's injuries (that is, that no actionable negligence on the part of defendant was shown proximately resulting in plaintiff's injuries); (2) that the undisputed evidence showed that plaintiff was guilty of contributory negligence as a matter of law; and (3) that the issue of discovered peril was not raised by the evidence.

The record discloses that the collision occurred at a public crossing known as the North Church Crossing, about 4 miles north of the city of Nacogdoches, where the public highway crossed defendant's railway. The railroad ran generally east and west, and the highway ran generally north and south. The highway crossed the railroad at almost right angles. At this point the grade of the railroad track ascends from west to east up what is known as North Church hill. The railroad track at the foot of the hill is in a cut; the depth of same being below the natural ground from nothing at the eastern edge of the highway to 4.2 feet at 50 feet east of the highway, and to 5.3 feet at 160 feet east of the highway. The highway, after it leaves Nacogdoches, reaches North Church hill at a point about 1,600 feet south of the railroad, and at said point is about 18 feet above the rails of the track. It then descends said hill toward the railroad track; the slope being practically regular, except for slight changes of the grade at 900 feet and 400 feet before reaching the track. The evidence showed that a man standing on the right-hand (east) margin of the highway 70 steps from the track could see a train approaching from the east when it got within 70 steps of the crossing, and that back up the hill 150 yards from the track one could see the train approaching from the east when it was 50 steps from the crossing. The collision occurred at 1:20 a. m. at night. At this time one of defendant's freight trains was proceeding from Nacogdoches towards Shreveport—west to east— and had stalled on North Church hill. The train was cut in two just west of, and near to, the public crossing in question. The front portion of the train had been carried on to and set out at Redfield, the next station. The engine and tender was then being backed down to and was slowly (traveling at two or three miles per hour) passing over the public highway crossing to couple onto the cars left at and near (about 30 feet of) the west edge of said crossing, when plaintiff ran his automobile into the engine, striking it just under the engineer's seat in the cab, which, according to the undisputed evidence, is 35 feet from the rear end of the tender. Plaintiff knew of the presence and location of the public crossing—was familiar with same. When he began to descend the hill, he says, knowing that a passenger train was about due, he looked to the right, and saw the reflection of a light to the east of the crossing, and that as he further descended the hill he determined that the light was pointing east, and concluded the train was going in that direction, and had passed the crossing. He was driving practically a new car, and the lights of his car were burning brightly. He estimated the speed at which he was...