Texas & Pac. Ry. Co. v. Day

• Decision Date: 26 June 1946
• Docket Number: No. A-848.,A-848.
• Citation: 197 S.W.2d 332
• Parties: TEXAS & PAC. RY. CO. v. DAY.
• Court: Texas Supreme Court

Page 332

197 S.W.2d 332

TEXAS & PAC. RY. CO. v. DAY.

No. A-848.

Supreme Court of Texas.

June 26, 1946.

Rehearing Denied November 27, 1946.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Bryson Day against the Texas & Pacific Railway Company to recover damages for personal injuries sustained by plaintiff when his automobile was struck by a train of defendant at grade crossing. Judgment for plaintiff was reversed by the Court of Civil Appeals and the cause remanded for a new trial, 193 S.W.2d 722, and defendant brings error.

Judgment of Court of Civil Appeals reversed and judgment of district court affirmed.

Hill D. Hudson, of Pecos, Wm. L. Kerr, of Midland, and J. T. Suggs, W. O. Reed, J. W. Riley, Robert Thompson, and D. L. Case, all of Dallas, for petitioner.

Richard Critz, of Austin, and John J. Watts, of Crane, for respondent.

SIMPSON, Justice.

This is an action brought by Bryson Day against the Texas & Pacific Railway Company growing out of a grade crossing collision in the city of Odessa about midday February 18, 1944. Day was driving his automobile northwardly along a frequently travelled street and approached what was known as the "ice factory crossing," with which he was quite familiar. He stopped some 51 feet south of the middle of three tracks which traverse this crossing and waited for an eastbound freight train moving along the middle track to clear the intersection. Day testified that when the freight train had gone 50 or 60 yards east of the crossing, he looked to the east, saw no approaching train, put his car in low gear, looked to the west, and "started up." As he reached the northernmost or main line track, he again looked to the east and discovered some 6 or 8 feet away a westbound train bearing rapidly down upon him. He was seriously injured in the ensuing collision. Although Day did not testify he observed it, the evidence supports the view that the electrically operated flasher lights which the company maintained at the crossing were functioning at the time. These lights are so mechanized that they start flashing whenever a train on the main line reaches half a mile of the crossing and continue flashing until the last car has cleared the intersection. The two tracks south of the main line are wired to activate these signals when rolling stock is within 30 feet of the crossing. At the time of the collision these two southerly tracks were clear of cars near enough the crossing to have activated the lights, and the flashing of the signals was caused by the approach of the westbound train on the main line. Railroad traffic was unusually heavy due in part to troop movements and other wartime operations.

Upon a special issue submission, a district court jury found that the train which struck Day was running 35 miles an hour and that this rate of speed constituted negligence, which proximately caused the collision. It also found that the crossing was unusually hazardous, that it was negligence for the railroad company not to keep a flagman there, and that this negligence was likewise a proximate cause of the collision. Questions upon the issue of contributory negligence were answered favorably to Day. The jury further found that the collision was the result of an unavoidable accident. The district judge, upon a proper motion, ruled there was no evidence raising the issue of unavoidable accident, disregarded the jury's finding on that issue, and entered judgment against the railway company. The Court of Civil Appeals concluded that Day was guilty of contributory negligence as a matter of law and accordingly reversed the judgment of the trial court. But instead of rendering judgment against Day, it remanded the cause to afford him an opportunity upon a retrial "to justify or excuse his deliberate disregard" of the flasher signals. 193 S.W.2d 722, 727.

The company contends here that all the proof showed that Day drove his car into the path of the approaching train in disregard of the warning of the electrical flasher device, and that this amounted to contributory negligence as a matter of law. Too, it urges that: "The Court of Civil Appeals erred in ignoring the plaintiff Day's negligence as a matter of law in driving over a railroad crossing with which he was familiar, immediately behind a receding train which constituted the only obstruction to his vision, onto a track beyond, where he was struck by a train traveling in the opposite direction from that in...