Texas & New Orleans R. Co. v. Flowers

• Citation: 336 S.W.2d 907
• Decision Date: 19 May 1960
• Docket Number: No. 6344,6344
• Parties: TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. Glenn W. FLOWERS, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 907

336 S.W.2d 907

TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. Glenn W. FLOWERS, Appellee.

No. 6344.

Court of Civil Appeals of Texas, Beaumont.

May 19, 1960.

Rehearing Denied June 3, 1960.

Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellant.

Harold Peterson, Beaumont, Jacobs, Davis & Schmidt, Houston, for appellee.

McNEILL, Justice.

This is a suit for damages which was instituted in the district court of Jefferson County by appellee against appellant because of alleged injuries sustained by him as a result of being struck and run over by a string of freight cars at a street crossing in the City of Beaumont. As a result of the trial before a jury, judgment in the sum of $170,802.20 was rendered in favor of appellee, hence this appeal.

Appellee, who had just left a house of ill-fame at the corner of Crockett and Orange Streets in the City of Beaumont, about 2:30 or 3 o'clock a. m., April 5, 1957, started to walk toward the business district of town which was situated some distance therefrom. He was not acquainted with the area into which he was going but stated that he saw the lights of the town and started in that general direction. His path lay along Cedar Street which runs generally in an easterly-westerly direction. The street was not paved and had no curbs and gutters, but had a hard surface with many holes from wear and travel. Walking easterly along this street, though he testified he did not realize it, he was approaching obliquely the southerly edge of appellant's switchyards, an area of considerable extent, the most southerly switch track in which began at a point somewhat east of the city viaduct and extended in a generally east direction in a mild curve to the right, crossing Cedar Street at a slight angle and terminating about 200 feet east of this street at the end of a building described as the Pre-Fab building. This switch track is known as the 'outside caboose track.' Cedar Street at the point of the crossing comes into and crosses the southerly edge of the railroad switchyard property, and bearing east, comes out of the property within a short distance. The part of Cedar Street involved, as it extended into and across a small part of the railroad property was, for the purpose of this case, recognized as a public street.

Appellee had walked along the northerly side of this street a distance of about a block and a half when he reached the east end of a high metal fence that ended in the center of Cedar Street. This end of the fence was covered with a heavy vine, which obscured one's vision. Appellee testified that as he went along he was watching where he was walking to keep from stumbling and immediately upon passing the east end of the fence and following Cedar Street walked upon this most southerly switch track crossing, not knowing it was there, and was struck in the left part of his back by a box car at the end of a moving string of freight cars, knocked down and the wheels of the eastmost box car ran over his two legs below the knees and across his right arm between the wrist and elbow, mangling them so that they later had to be severed. Describing his experience under the train he said 'it rolled me back and forth.' He further testified that he saw no freight cars before he was hit and heard no noise and the area was without lights; there were no signs, watchman nor flagman nor any other warning indicating that he was passing over a railroad track. The record shows that the track involved will hold a maximum of about 10 freight cars; that it has a slight down grade to the east and that where it crosses Cedar Street the top of the track is at ground level.

The evidence further shows that immediately before appellee was run over there were several freight cars standing on this switch track to the west of the crossing. According to appellant's contention, which was supported by evidence, no freight car ever entered this crossing on the night in question and that appellee, instead of being on Cedar Street, had gone upon the track westerly thereof and had gotten himself involved with the freight cars. Appellee, however, contends, and the jury so found, that he was hit by a car while he was on Cedar Street crossing and that the cause of the accident was the switching crew on duty at the time in the west end of the yard 'kicked' a freight car into the outside caboose track, propelling it sufficiently that it struck a string of cars standing thereby, causing them to start rolling across the Cedar Street crossing, striking appellee and causing his injuries. One of the trainmen said that a 'kicked' car would not have to be kicked too hard into the end of a string of cars on the outside caboose track as they roll good on the slight down grade and the impact of the kicked car on the standing string of cars could cause them to start moving east across Cedar Street and roll toward the concrete bunker at the east end of the Pre-Fab building (S.F. 408). Whether the noise of such a contact with the standing cars would likely be loud would probably depend on several factors but this was not developed at the trial. The railroad yard was a large one but whether a person proceeding as plaintiff was approaching the crossing should realize he was at or entering the yard was a matter for the jury to say.

In answer to Special Issues the jury found (1) appellee was struck by a car at the street crossing involved; (1-A) he was struck while walking across this track on Cedar Street; (2) appellant's employees failed to keep a proper lookout for persons walking on Cedar Street near the crossing; (3) failure to keep a proper lookout was proximate cause; (4-a) the train crew 'kicked' the 10th car into the outside caboose track before coupling on to the cars in said train; (5-a) appellee was struck immediately after the 10th car was 'kicked' into the outside caboose track; (8) appellant's failure to place a warning sign that this track crossed Cedar Street was negligence; (9) its failure was a proximate cause of the occurrence; (13) appellant failed to have a flagman at the crossing at the time the 10th car was 'kicked' into said track; (14) and that such failure was negligence; (15) and proximate cause; (16) in 'kicking' the 10th car into the track instead of shoving it to a coupling was negligence; (17) and was a proximate cause; (Issue 32) appellee failed to keep a proper lookout for railroad cars and locomotives upon appellant's tracks at the time and place in question; (Issue 33) such failure to keep a proper lookout was not a proximate cause; (37) that the occurence was not the result of an unavoidable accident; (38) because of physical pain, mental anguish and loss of earning capacity he may suffer in the future he was awarded damages in the sum of $157,400; (39) that he sustained medical and hospital bills and expenses for artificial appliances; (39-A) this in the amount of $3,402.20; (39-B) appellee will in all reasonable probability incur future expenses for artificial appliances; (39-C) the amount there is $10,000.

Appellant's brief contains 9 points of error. Its 3rd-7th points are presented together. The third point asserts that the trial court erred in overruling appellant's motion for judgment notwithstanding the verdict. Appellee asserts that the point is too general to be considered since it is based upon assignments of error 1 and 2 in the Amended Motion for new trial which are also too general. These two assignments read:

'1. The Court erred in overruling this defendant's Motion for Judgment non obstante veredicto.

'2. The Court erred in overruling this defendant's Motion to disregard the findings of the jury to various Special Issues and to enter judgment for this defendant.'

The motion non obstante veredicto and alternatively to disregard certain issues contained four paragraphs. The first, that the evidence is wholly insufficient to establish negligence on the part of appellant; the second that the evidence conclusively establishes that appellee was guilty of contributory negligence as a matter of law which proximately caused the occurrence; the third, the jury's answers to such of the issues 1, 1-A, 2, 3, 4-A, 5-A, 8, 9, 13, 14, 15, 16, and 17 are without support in the evidence, and the court should disregard each and all of them; fourth, the finding of the jury in answer to Issue 33 is without support in the evidence or so against the weight of the evidence as to be manifestly wrong. Though the assignments of error above quoted fail to mention or name in a specific or explicit manner the error complained of, required in Rule 320, Texas Rules of Civil Procedure and as defined in Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, it appears that as to errors complained of in a motion notwithstanding the verdict or motion to disregard certain issues Rule 324 controls, and the motion itself preserves the errors claimed therein. Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909. The third point in appellant's brief under assignments 1 and 2, however, reads:

'Because the trial court erred in overruling appellant's motion for judgment notwithstanding the verdict, the judgment should be reversed and the cause remanded for a new trial.'

This point perhaps is too general to be considered. Tindall v. Tacconelly, supra. But when the point is considered in the light of the statement and agrument under the grouped points 3-7 the two questions dealt with are (1) there is no evidence to support the jury's finding to Issue 33, (2) the evidence is insufficient to support the jury's finding to Issue 33, and while it is doubtful that the second question is raised since bottomed entirely on the motion for judgment N.O.V.--Traders & General Ins. Co. v. Bass, 193 S.W.2d 848, by this Court--we will examine both. They are well presented in appellant's brief. Because of the nature of the question we have carefully examined the entire statement of facts, and have concluded that...