Texas & Pacific Ry. Co. v. Day

• Court: Texas Court of Appeals
• Writing for the Court: Price
• Citation: Texas & Pacific Ry. Co. v. Day, 193 S.W.2d 722 (Tex. App. 1945)
• Decision Date: 08 November 1945
• Docket Number: No. 4425.,4425.
• Parties: TEXAS & PACIFIC RY. CO. v. DAY.

193 S.W.2d 722

TEXAS & PACIFIC RY. CO. v. DAY.

No. 4425.

Court of Civil Appeals of Texas. El Paso.

November 8, 1945.

On Rehearing February 7, 1946.

Appeal from District Court, Crane County; W. C. Jackson, Judge.

Action by Bryson Day against Texas & Pacific Railway Company to recover damages for personal injuries suffered by plaintiff when his automobile was struck by a train of defendant at grade crossing. Verdict and judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause remanded for a new trial.

William L. Kerr, of Midland, and Hill D. Hudson, of Pecos (D. L. Case, M. E. Clinton, and J. T. Suggs, all of Dallas, on the brief), for appellant.

John J. Watts, of Crane (Critz, Kuykendall, Bauknight, Mann & Stevenson and Richard Critz, all of Austin, of counsel), for appellee.

PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of Crane County. Bryson Day, as plaintiff, sued the Texas & Pacific Railway Company to recover damages for personal injuries alleged to have been caused through the negligence of defendant. This is a crossing accident, occurring in the city of Odessa, at what is known as the "ice factory crossing". At about 1 p. m. on the 18th day of February, 1944, the plaintiff in his automobile approached the crossing from the south. He stopped a short distance from the intersection to await the passage of a train going east, over what is known as the passing track of defendant. After the last car of the train cleared the intersection, the plaintiff started to proceed over the intersection, and his automobile was struck by a train of defendant going west on the main track, same being one of three tracks intersecting the street along which plaintiff was traveling.

The trial was by the court, with a jury. Submission was on numerous special issues. The jury returned a verdict that the train striking plaintiff was operated at a negligent rate of speed, and such negligence was the proximate cause of the injuries; that the crossing was extra hazardous, and defendant was guilty of negligence in not maintaining a flagman at the crossing on the occasion in question, and such negligence was a proximate cause of his injuries. That plaintiff was not guilty of contributory negligence; that they did not find by a preponderance of the evidence that the collision was not the result of an unavoidable accident. Damages were found in the sum of Thirty-six Thousand Dollars ($36,000).

The Court received and accepted the verdict as returned. On timely motion by the plaintiff the Court set aside the finding as to unavoidable accident, overruled the motion of defendant for judgment non obstante veredicto, and rendered judgment in the sum of $36,000 against defendant.

Appellant urges five points of error. They may be summarized as follows:

The verdict as received was insufficient to warrant entry of judgment. That the issue of unavoidable accident was in the case, and the court erred in setting aside the verdict of the jury in this respect; further that under the evidence as a matter of law the plaintiff was guilty of contributory negligence, and the court erred in overruling its motion to instruct the jury to return a verdict in its favor, and further erred in overruling its motion for judgment non obstante veredicto. Complaint is made that the court erred in allowing plaintiff's trial amendment. It is also urged that there was error in the direction of the trial court in relation to the issues submitting damages.

There being no question as to the pleading save as to the filing of the trial amendment, it is not deemed necessary to here summarize same. In view of the contention of the parties it is deemed necessary to consider the evidence to determine whether or not as a matter of law plaintiff was guilty of contributory negligence.

The crossing on which the collision took place is referred to in the evidence as the "ice factory crossing". The street which the three tracks of appellant intersects runs north and south, the tracks running east and west. The most southerly track is called the team track. North of this is the passing track, and north of the passing track is the main track. There is a space of about ten feet between the passing track and the main track. Perhaps there is somewhat a greater space between the team and passing track. This is a much used crossing; there is testimony that a vehicle passes over same during each fifteen minutes of the day. The tracks divide the city of Odessa into two parts; more inhabitants live north of the track, but a substantial portion live south of same. The population of the city is about fourteen thousand. Appellant each day operates a number of trains, cars and engines across this intersection. This crossing is and was on the day of the accident, protected by flasher lights both on the north and the south side thereof. On the north side the flasher lights face both north and south, and when in operation they flash red lights both north and south. The flasher lights facing north on the north side of the crossing spell out the word "Stop". The flasher lights on the south face north and south, and likewise spell out the word stop on the lights facing south when in operation. These lights are activated by electrical impulse. If a train or car was on either the team or passing track within about thirty feet of either side of the crossing, the lights were activated. In case of the main track, if a train or car was within approximately a half mile of either the west or east side of the crossing the lights were activated. When one approached the crossing from the north or south, the lights being so activated, he would be faced by the flashing red light with the admonition to stop. If he entered the intersection from the south while the lights were not operating and before he completed the crossing a train or car came on either of the three tracks close enough to activate the lights, the red flasher lights on the north side facing south would be in operation and visible to him. When a train was on the team or passing track, and when its rear car had passed over the crossing for a distance of thirty feet, such train ceased to activate the lights; in case of the main track after the rear car had cleared the crossing it ceased to activate the lights.

There was testimony that frequently freight cars were placed on and allowed to stand on the team and passing tracks both on the east and west side of the crossing. There was no substantial evidence that they were so placed and allowed to remain in such proximity to the crossing as to activate the lights. At the relevant time the passing track was evidently not so obstructed to the east. This is said in view of the fact that the train going east had just passed along this track. There may have been cars on the team track. However, if such was the case they did not seem to interfere with the view of plaintiff to the east. He stated before starting his car he looked to the east, and the rear car of the train which was on the passing track had passed over the crossing some fifty or sixty yards. The only thing that it seems could have obstructed his view of the main line east was the receding train.

Plaintiff was familiar with this crossing and the lights thereat. For something over a year he had lived south of the tracks and passed over same at least once each day.

Plaintiff's account of the accident is in substance that on the afternoon of February 18th, about 1 p.m., he came up to the crossing from the south, intending to proceed across same. When he arrived, a train proceeding slowly east on one of the tracks occupied same; that he is not clear as to which track this train was on, but thinks it was on the team track. Other testimony without dispute establishes it was on the passing track. He says he stopped his automobile a short distance south of the intersection and waited for this train to clear the crossing. When the rear car had cleared the crossing by about fifty or sixty yards he looked to the east and saw no train approaching, and started his car, looking to the west at the same time. When he looked again to the east the train approaching from the east was so near that he could not avoid being struck thereby. Plaintiff was under the impression that the train he saw proceeding east was on the team track. In this, under the undisputed facts, he is mistaken; it was on the passing track. He likewise said he thought that he was struck by a train on the middle, or passing track. In this he is likewise mistaken; the train that struck him was on the main track. He said he did not remember whether he looked for the lights or not, and whether same were in operation. We here set out one question and answer of the plaintiff:

"Q. In your personal experience you never observed a time that they were not on that you saw, when a train was passing? A. I am by that just like the other. If I have noticed it I have forgot all about it, but I know the lights are supposed to come on when a train is crossing. Doesn't anyone I know pay any attention to those lights without they see a train coming across, because they go across all the time with the light on and I see them and everybody else sees them."

Reverend Bedford, a witness for plaintiff, testified his car was stopped immediately behind plaintiff's. Neither side asked him directly as to whether the lights were flashing at the time plaintiff started across. It is rather significant that this witness did not start his car forward in an attempt to make the crossing at the time plaintiff did. In reply to this question by counsel for the plaintiff

"Q. All right, you say `If it had not been him it would have been you?'" he answered: "Yes sir. I have did that very same thing very often, being in a hurry."

We think the inference is fair that the witness meant that the lights were flashing on the south at the time plaintiff started forward....