Thompson v. Erisman, 2359.

• Citation: 157 S.W.2d 439
• Decision Date: 13 November 1941
• Docket Number: No. 2359.,2359.
• Parties: THOMPSON v. ERISMAN.
• Court: Texas Court of Appeals

157 S.W.2d 439

THOMPSON v. ERISMAN.

No. 2359.

Court of Civil Appeals of Texas. Waco.

November 13, 1941.

Rehearing Denied January 8, 1942.

Appeal from District Court, Brazos County; Max M. Rogers (sitting in exchange of benches with Judge W. C. Davis), Judge.

Suit by Velma J. Erisman against Guy A. Thompson, as trustee for International-Great Northern Railroad Company, for personal injuries received in an automobile collision. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for new trial.

Sewell, Taylor, Morris & Connally, of Houston, and F. L. Henderson, of Bryan, for appellant.

Stewart & Barron, of Bryan, and Collins, Williams & Garrison, of Lufkin, for appellee.

RICE, Chief Justice.

This suit was brought in the District Court of Brazos county by Miss Velma J. Erisman against Guy A. Thompson in his capacity as trustee for International-Great Northern Railroad Company, seeking recovery of damages for personal injuries sustained by her. Based on the answers of the jury to special issues, judgment was rendered in favor of plaintiff against defendant for the sum of $12,000, and defendant has appealed.

Plaintiff was injured when the automobile driven by her collided with an automobile traveling in the opposite direction on state highway No. 19, near the village of Arcola. At, and in the vicinity of, the scene of the collision, the above mentioned highway and the right of way of the defendant railroad company lie parallel with and contiguous to each other. Plaintiff contends that the negligence of defendant's employees was the proximate cause of her collision and consequent injuries, because, she says, defendant's employees, while operating one of defendant's freight trains, and while acting within the scope of their employment, shortly prior to the collision, intentionally set fire to the vegetation which defendant had allowed to grow upon its right of way, at a time when a strong wind was blowing in the direction of the highway; that a great volume of smoke and sparks, as well as intense heat, was thereby caused to suddenly and without warning billow up from defendant's right of way and to envelop plaintiff and the driver of the car with which she collided, suddenly blotting out their vision, and placing each of them in a position of peril and emergency; that while the drivers of each of the cars were exercising their best judgment for their own safety in attempting to extricate themselves from the danger, the cars collided.

By its first assignment of error defendant contends that the trial court erred in failing to direct a verdict against plaintiff, because the undisputed evidence showed that plaintiff, on the occasion in question, was guilty of contributory negligence as a matter of law. We overrule this assignment. In our opinion, there was substantial evidence in the record which, if believed by the jury, would warrant it in finding that on the occasion in question the plaintiff, while driving an automobile on a public highway contiguous to defendant's right of way, was suddenly and unexpectedly enveloped in a cloud of smoke, emanating from a fire upon the right of way of the defendant, which totally obscured her vision, thus creating a sudden emergency and placing plaintiff in a position of peril that plaintiff, under the circumstances, exercised her best judgment for her own safety as well as that of others upon the highway. 41 T.J. sec. 170, p. 940; Houston Belt & Terminal Co. v. O'Leary, Tex.Civ. App., 136 S.W. 601, writ denied; Brazos Valley Tel. & Tel. Co. v. Wilson, Tex.Civ. App., 187 S.W. 234; Peveto v. Smith, 134 Tex. 308, 133 S.W.2d 572, point page 576; McAfee v. Travis Gas Corporation, Tex. Sup., 153 S.W.2d 442.

By its next assignment defendant urges the court erred in failing to direct a verdict against plaintiff, because the alleged negligent acts of defendant could not, as a matter of law, have been the proximate cause of plaintiff's injuries. Under this assignment defendant urges that the smoke from the fire furnished only the condition, and gave rise to the occasion by which the plaintiff's injury was made possible; that the fire and smoke therefrom was not the proximate cause of the injury, but was no more than the occasion on which other causes operated to bring about the collision. We overrule this assignment. The evidence shows, viewing the same from plaintiff's standpoint, as we must, that the defendant's right of way was covered with a rank growth of weeds and grass; that this right of way ran parallel to and abutted on state highway No. 19, which at the time was a popular and heavily traveled highway. In the light of the attendant circumstances, we hold that the jury was justified in concluding that defendant could have reasonably foreseen that if the weeds and grass on its right of way were fired, the smoke emanating therefrom could, and probably would, under the influence of prevailing winds, suddenly blow over and across the highway, blotting out visibility of motorists thereon, thus placing any motorist whose vision was thus suddenly obscured in a position of peril and under the necessity of acting in a sudden emergency, and that a collision similar to the one in this case might result. We believe that the question of whether the defendant ought to have reasonably foreseen the accident and the resultant injuries was raised by the evidence. Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60; Missouri-K.-T. Ry. Co. v. McLain, 133 Tex. 484, 126 S.W.2d 474; Carey v. Pure Distributing Corporation, 133 Tex. 31, 124 S.W.2d 847; 30 T.J. sec. 47, p. 699-700; Galveston, H. & S. A. Ry. Co. v. Bell, 110 Tex. 104, 216 S.W. 390; Houston B. & T. Ry. Co. v. O'Leary, Tex.Civ.App., 136 S.W. 601; Berry v. Harper, Tex.Civ. App., 111 S.W.2d 795; McAfee v. Travis Gas Corporation, Tex.Sup., 153 S.W.2d 442.

By appropriate assignments of error defendant contends that the court should have instructed a verdict in its favor, because it was shown by the undisputed testimony that if any servant of defendant threw balls of fire or other burning substances out of the caboose of the train, or if such servant lighted a cigarette and threw or stuck the match in the grass on the right of way, that such servant was acting beyond the scope of his employment and was not engaged in the furtherance of the affairs or business of the defendant. We overrule these assignments. It is undisputed that on the day of the collision there were on the caboose of defendant's freight train, as it approached and passed the point of collision, three men—the conductor and two brakemen. The conductor and brakemen testified for the defendant that they did not, on the occasion in question or at any other time, set fire to the grass and weeds on the right of way of the defendant by throwing balls of fire thereon, or by any other means; that it was not their duty to burn the grass and weeds from the right of way of the defendant; that if they had set fire to the vegetation on the right of way it would have been in violation of their instructions; that the duty of burning the weeds and grass from defendant's right of way came under another and different department; that for years defendant had used a weed burner for this purpose, and when it was so used two section crews, consisting of fifteen or twenty men each, accompanied it to hold the fire under control. One of these witnesses stated that the rule book and book of instructions that employees were required to read before assuming their duties prohibited members of train crews from burning off the right of way. The Chief Engineer of this section of the road gave testimony to the same effect. Witnesses for plaintiff, apparently disinterested, testified that on different occasions preceding the accident they had seen men on defendant's freight train set fire to the vegetation on the right of way of the defendant. One of the members of the crew testified that he had seen the weed burner on this section of the right of way only once in the period of time between the years 1933 and 1938. Another member of the crew testified that he could not state definitely when, prior to the collision, the vegetation had been burned from defendant's right of way, but that the legs of the members of the train crew on this section of the road were always black from the burning of the vegetation on the right of way. The testimony further showed that the three men on the caboose had been in the employ of defendant for many years prior to the date of the collision, and during all of that time had been on the same run and were still so employed at the date of the trial of this case. The book of rules for railroad men referred to above was not introduced in evidence. There was no testimony from the members of the train crew as to who gave them their instructions with reference to what their duties were,...