Texas & Pac. Ry. Co. v. Nabhan, 4137

• Decision Date: 11 March 1967
• Docket Number: No. 4137,4137
• Citation: 413 S.W.2d 432
• Parties: The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Nick J. NABHAN et ux., et al., Appellees. . Eastland
• Court: Texas Court of Appeals

Page 432

413 S.W.2d 432

The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Nick J. NABHAN et ux., et al., Appellees.

No. 4137.

Court of Civil Appeals of Texas Eastland.

March 11, 1967.

Rehearing Denied April 7, 1967.

Jim Gallagher and Schuyler B. Marshall, of Scott, Hulse, Marshall & Feuille, El Paso, for appellant.

Abraham & Chagra, El Paso, for appellees.

GRISSOM, Chief Justice.

Mrs. Nabhan and her minor daughter were trapped in the Nabhan's automobile between others on the tracks of the Railway Company; their car was struck by its backing train and they were injured. In their suit for damages, based upon a jury verdict, judgment was rendered for the Nabhans and the Railway Company has appealed.

The Railway Company's first contention is that the first three issues and the answers thereto did not submit, nor was there a finding, of an ultimate issue which could be the basis for the judgment. In answer to said issues the jury found that (1) the Railway Company's agent instructed Mrs. Nabhan to drive forward when such movement could not be made in safety; that (2) the agent was negligent in so directing Mrs. Nabhan and that (3) his said act was a proximate cause of the accident.

The Railway Company's evidence was to the effect that there were several railroad tracks crossing the street and highway on which the Nabhans were traveling; that Mrs. Nabhan stopped her automobile with its front hanging over the first rail on the sough; that defendant's train had passed over the crossing going west and the engine and first cars were out of sight around a bend; that the agent gave a signal to another trainman, who relayed it around the bend to the engineer, for the train to back east over track 6 at the crossing. It was disputed whether the agent gave the signal for the train to back up after or before he saw Mrs. Nabhan's position and directed her to drive forward across the tracks. The agent testified that he saw the front of Mrs. Nabhan's car over the southernmost rail and that he repeatedly directed her to move forward; that when he directed her to move forward he had not seen an automobile stopped on the north side of the tracks, if it was then stopped, so close that Mrs. Nabhan could not get completely off the track on the North side onto which the train was switched and backed, causing the rear end of her car to be struck by the train. The testimony for the Nabhans in this regard was to the effect that Mrs. Nabhan stopped her car in the street, not with its front end projecting over the rail, as the agent testified; that the agent motioned for her to move forward, or north, across the tracks; that she hesitated and he insisted again and again that she move forward, whereupon, not seeing the engine and not knowing the exact situation, she concluded that he should know better than she what ought to be done, she obeyed his instruction and tried to cross the tracks, got to the north side of the series of tracks but was unable to get the rear end of her automobile off the northern track, onto which the backing train was switched, because an automobile was stopped in front of her close to the track preventing her from getting completely off the tracks; that by that time a line of cars had also formed back of her, to the south, so she could not back off the tracks, a line of cars was north of the tracks travelling south; that she saw that train switched onto the track on which she was trapped but she was unable to move in any direction and was trapped there and the backing, switched train struck the rear end of her automobile turning it around and injuring Mrs. Nabhan and her minor daughter. There was evidence to...