Texas & P. Ry. Co. v. Porter

• Decision Date: 07 September 1962
• Docket Number: No. 3735,3735
• Citation: 360 S.W.2d 568
• Parties: The TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. H. A. PORTER, Appellee.
• Court: Texas Court of Appeals

Page 568

360 S.W.2d 568

The TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. H. A. PORTER, Appellee.

No. 3735.

Court of Civil Appeals of Texas, Eastland.

Sept. 7, 1962.

Rehearing Denied Sept. 28, 1962.

Mays, Leonard, Moore & Dickson, Sweetwater, R. H. Weaver, Big Spring, for appellant.

Jack Little, Big Spring, for appellee.

GRISSON, Chief Justice.

H. A. Porter sued The Texas & Pacific Railway Company for damages caused by his automobile being struck by defendant's train at a crossing on a county road. A jury found the railway company guilty of negligence which was a proximate cause of the collision in failing to keep the crossing in good repair. Based on said findings, judgment was rendered for the plaintiff. The defendant has appealed.

The automobile was driven by Mr. Porter's 14 year old daughter, who was accompanied by another girl, Miss Beverley Thurman. As Miss Porter drove on the crossing a wheel went off the end of one of the crossing boards and, when she attempted to drive off the crossing, a rear wheel spun and dug a hole in the dirt causing the automobile to be suspended on the rails. These facts are undisputed. On the trial, plaintiff contended that the ends of some of the boards of defendant's planked crossing were eroded or chipped off so that the planks which had originally constituted a 16 foot wide crossing had at such places been reduced to about 14 feet; that it was necessary for a person to drive on the edge of the planked crossing because as one approached it he could not see a vehicle coming from the opposite side; that when plaintiff's daughter drove to her right on the edge of the planked crossing, because the ends of some of the boards has eroded or had been 'chipped off', a wheel slipped off the end of such a board and caused Porter's automobile to be suspended so that she could not drive off the crossing. Defendant's contention was, in effect, that the girl simply negligently drove off the side of the crossing. Plaintiff alleged that as his daughter approached the crossing it was necessary for her to first jog to the left, or east, then make a 90 degree turn to the right up a steep embankment; that the embankment was so high it was impossible to see whether an automobile was approaching from the opposite side, and, therefore, it was necessary for her to stay on her extreme right; that the right front wheel of plaintiff's automobile slipped off the eroded or chipped ends of some crossing boards causing the automobile to become stuck on the tracks and be hit by defendant's train. Plaintiff alleged, among other things, that defendant was negligent in failing to keep said crossing in good repair.

The jury found that defendant failed to keep the crossing at the site of the accident in good repair and that this was negligence and a proximate cause of the collision. Appellant contends the court erred in overruling its motion for judgment non obstante veredicto because all issues requiring whether specific acts of the defendant were negligent were answered in favor of defendant 'and the general charge embodied in Special Issue No. 1 will not--support the judgment' and that the court erred in rendering judgment against defendant 'based solely upon the general, global issue that appellant failed to keep the railroad crossing 'in good repair". Appellant says that special issues submitting negligence should be restricted to specific acts of negligence alleged and proved and that it is improper to submit the question of defective condition globally without mentioning the particular item of defectiveness pleaded. It cites in support thereof such cases as Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Weidmer v. Stott, Tex.Civ.App., 48 S.W.2d 389, (Writ Ref.), and the like. The cases cited by appellants so hold, but, after a study of the entire record, we think it is evident that the case was tried upon plaintiff's theory that a wheel slipped off the planked crossing because the ends of some of the boards had rotted away and upon defendant's contention that plaintiff's daughter simply negligently drove off the edge of the planked crossing. We find no specific objection to the issues relative to appellant's failure to keep the crossing in good repair, distinctly pointing out to the trial judge that same should have been more specific and inquired whether appellant was negligent in failing to repair the planks which had eroded, or had been chipped off at the end, if they were. See Texas Rules of Civil Procedure, rule 274; Gulf C. & S. F. Ry. Co. v. Bouchillon, Tex.Civ.App., 186 S.W.2d 1006, (Ref. W. M.); Frozen Foods Express v. Odom, Tex.Civ.App., 229 S.W.2d 92, (Ref. N. R. E.). Appellant says the finding that it failed to keep the crossing in good repair is insufficient to support the judgment; that the proper issue was whether appellant breached its legal duty by failing to maintain the crossing in such a condition that an ordinary prudent person, exercising reasonable care for his own safety, would have been able to use the crossing in safety, and that in the absence of such a finding appellant cannot be held liable. Under the circumstances, we think the court did not commit reversible error in such submission and that said findings do support the judgment. See 35 Tex.Jur. pp. 173, 174 and 445, 450; Dillingham v. Fields, 9 Tex.Civ.App. 1, 29 S.W. 214 (Writ Ref.); Gulf, C. & S. F. Ry. Co. v. Hector, Tex.Civ.App., 283 S.W. 562; International & G. N. R. Co. v. Douglas, 7 Tex.Civ.App., 554, 27 S.W.793 (Writ Ref.); 32 Tex.Digest Railroads k302; Miller v. Panhandle & S. F. Ry. Co., Tex.Civ.App., 35 S.W.2d 194 (Writ Dis.).

Appellant contends that the court committed reversible error in excluding the statement of Miss Thurman to the conductor, which it says was made less than five minutes after the collision and admissible as res gestae, to the effect that appellee's daughter missed the crossing, lost control of...