Texas & Pacific Ry. Co. v. Foster

• Decision Date: 27 January 1933
• Docket Number: No. 1037.,1037.
• Citation: 58 S.W.2d 557
• Parties: TEXAS & PACIFIC RY. CO. v. FOSTER et al.
• Court: Texas Court of Appeals

58 S.W.2d 557

TEXAS & PACIFIC RY. CO. v. FOSTER et al.

No. 1037.

Court of Civil Appeals of Texas. Eastland.

January 27, 1933.

Rehearing Denied March 31, 1933.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Action by Minnie L. Foster, for herself and as next friend of her four minor children, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

H. C. Shropshire, of Weatherford, for appellant.

Turner, Seaberry & Springer, of Eastland, for appellees.

LESLIE, Justice.

The plaintiff Minnie L. Foster, for herself and as next friend of four minor children. filed this suit against the Texas & Pacific Railway Company to recover damages by reason of the death of the husband and father, J. D. Foster, who was run over and killed by the defendant's train at a country public road crossing. The deceased was in a Ford car driven by his son, and, as they attempted to make the crossing, the car was centrally struck by a passenger train traveling at approximately the rate of 65 miles per hour. Negligence is alleged to consist in running at an excessive rate of speed at the time and place of the injury, failure to maintain a watchman or some warning device at the crossing, alleged to be extrahazardous and dangerous, and discovered peril. Among other defenses, the company alleged general and special denials, contributory negligence, and that the facts generally alleged by the plaintiff did not warrant a recovery against it, as it was at the time of the accident engaged in interstate commerce, etc. Trial was before the court and jury, and, upon the answers to numerous special issues, a judgment was rendered in favor of the wife and minor children aggregating the sum of $12,392. As to the other plaintiffs, judgment was in favor of the company. The defendant appeals and predicates error on sixty-eight assignments and as many propositions.

The many propositions, when grouped, relate to about five controlling questions. Briefly these questions are: (1) Does the evidence support the verdict of the jury in finding that the crossing was more than ordinarily hazardous and dangerous? (2) Does it support the verdict to the effect that the company was guilty of negligence in failing to keep a watchman or maintain some device other than a signboard for the purpose of warning persons about to use the crossing of the approach of trains? (3) Does the testimony support the verdict to the effect that the company was guilty of negligence in operating its train at a dangerous rate of speed at the time and place of the accident? (4) Whether or not the evidence supports the verdict of the jury upon the question of discovered peril. And (5) whether or not the jury was guilty of misconduct.

At the conclusion of the testimony, the defendant requested a peremptory instruction on the ground that the uncontradicted evidence convicted deceased Foster of contributory negligence in attempting to make the crossing with full view and knowledge of the approaching train. To set out the testimony on this issue would unduly lengthen the opinion. We have, however, carefully considered the same, and conclude that the proposition should be overruled. Undoubtedly the testimony as a whole presents a jury case, and the remaining issues will be considered on that theory.

Since the case was submitted to the jury on special issues, and the defendant's specially requested charges 4, 7, and 11 were general charges on the law of the case, the court did not err in refusing to give them. Wichita Valley Railway Co. v. Brown (Tex. Civ. App.) 274 S. W. 305; Texas & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188; Fort Worth & D. C. Ry. Co. v. Morrow (Tex. Civ. App.) 255 S. W. 674; Solo Serve Co. v. Howell (Tex. Civ. App.) 35 S.W. (2d) 474; Texas & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Id. (Tex. Civ. App.) 29 S.W.(2d) 835.

By proposition 5, complaint is made that the trial court erred in refusing to give the defendant's special charge 24, instructing the jury not to consider certain testimony alleged to be prejudicial, in that it impeached the defendant's witness Bowles, on "a collateral and immaterial issue." No objection was made to the testimony when given. We doubt that the testimony was improper, but, if it were, the objection in the nature of a charge to the jury came too late. Such is the holding of our Supreme Court in Missouri Pac. Ry. Co. v. Mitchell, 75 Tex. 77, 12 S. W. 810, followed in Missouri, K. & T. Ry. Co. v. Edling, 18 Tex. Civ. App. 171, 45 S. W. 406.

The sixth proposition is based upon the refusal of the court to give special charge No. 25, designed to withdraw certain testimony, to the admission of which no objection had been made. As to this point, the record is in the same condition as noted in disposing of proposition 5. Further, the transcript does not disclose that the court gave or refused special issue No. 25. The charge bears no indorsement of the trial judge, and his ruling is in no way authenticated. Article 2188, R. S. 1925; Farmers' & Merchants' State Bank v. Guffey (Tex. Civ. App.) 255 S. W. 462; Walker v. Hirsch Cooperage Co. (Tex. Com. App.) 236 S. W. 710; Medford v. Kimmey et ux. (Tex. Civ. App.) 298 S. W. 140; Hawkeye Securities Co. v. Cashion (Tex. Civ. App.) 293 S. W. 664 (11); 3 Tex. Jur. p. 234, § 161, p. 587, § 410.

The defendant's specially requested issues 21 and 22 were substantially covered by the main charge, and there was no error in refusing them. Texas & P. Ry. Co. v. Baldwin (Tex. Civ. App.) 25 S.W.(2d) 969; Harding-Gill Co. v. Borchardt (Tex. Civ. App.) 285 S. W. 698; Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Dallas Ry. & Terminal Co. v. Fuchs (Tex. Civ. App.) 52 S.W.(2d) 685; American Asphalt Co. v. O'Rear (Tex. Civ. App.) 41 S.W.(2d) 322; Id. (Tex. Civ. App.) 36 S.W.(2d) 779.

The defendant has presented propositions 9, 10, 14, 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, and 66 in several groups, and the plaintiff replies to them as a single group and on the theory that they are but repetitions of the points raised by the defendant's first assignment of error and relating merely to matters of pleading and testimony. Omitting propositions 23, 24, 25, 26, and 27, which relate to the liability on the ground of discovered peril, we believe the plaintiff's assumption to be substantially correct. Each of these propositions predicates error on the part of the court in making certain rulings without pleading or evidence to justify the same. Since such contentions involve elementary principles of law, we shall not lengthen this opinion by a restatement of the same and their application to this record. Such would not be of interest to others than the litigants, and in their behalf we content ourselves by making specific rulings to the effect that we find the pleadings and testimony sufficient in each respect complained of.

We omitted propositions 23 to 27, both inclusive, from the above grouping, for the reason that we are not in accord with the plaintiff's contention on the question of discovered peril. The jury found that the deceased (1) was in a perilous position prior to the collision; (2) that the operators of the train discovered this perilous position; (3) that they discovered it in time to have avoided the collision by the use of all the means at hand consistent with the safety of the train and its occupants; (4) that, under such circumstances, the operators of the train, in the exercise of ordinary care "failed to use all the means at hand consistent with the safety of said train and its occupants to prevent the collision and injuries in question"; and (5) that such failure was the proximate cause of the collision and injuries. The sufficiency of the pleadings and the evidence to sustain these findings is challenged. We sustain the propositions on the question of evidence. We will make no extended statement of the testimony, but refer to some of its important features which have a bearing, not only on this particular question, but also on the closely related one of excessive and dangerous rate of speed at the time and place of the collision.

The train on this occasion was the well-known Sunshine Special, made up of five Pullmans and three coaches, each about 90 feet in length. The locomotive was of the 900 class, and one of the largest for passenger trains. It was 95 feet in length, including the tender, and weighed 820,000 pounds. It was capable of running 110 miles per hour, but the operators were limited to 65 miles per hour. The locomotive was 12 feet from the cab to the ground, equipped with modern appliances enabling the engineer to stop the train, as in the present case, in a space of about 400 yards from the time the brakes were properly applied. From the point of collision to the east, the track was practically straight for one and a quarter miles, with a 1 per cent. down grade in the direction the train was running. The automobile was approaching the crossing from the northeast, or at an angle of about 40 degrees, rather than in a line perpendicular to the railroad track. The approaching train was thus to the rear of the left shoulder of the deceased and the driver of the automobile, which was a model T Ford. The engineer testified that he saw the automobile approaching when it was 75 to 100 feet from the crossing, at which time the engine was also 80 to 100 feet from the same; that he blew the whistle and the automobile slowed down to 2 or 3 miles per hour near the crossing, possibly in 10 feet of it; that somewhere near the crossing the automobile suddenly speeded up, at which time (the train being in about 100 feet of the crossing and running approximately 65 miles per hour), he threw on the brakes, which, as applied, brought the train to a stop in about 400 yards. These circumstances, in connection with the...