Thompson v. Goode, 11914.

• Decision Date: 09 March 1949
• Docket Number: No. 11914.,11914.
• Citation: 221 S.W.2d 569
• Parties: THOMPSON v. GOODE.
• Court: Texas Court of Appeals

221 S.W.2d 569

THOMPSON v. GOODE.

No. 11914.

Court of Civil Appeals of Texas. San Antonio.

March 9, 1949.

Rehearing Denied April 6, 1949.

Appeal from District Court, 103d District, Cameron County; Jas. S. Graham, Judge.

Action by Tomas H. Goode against Guy A. Thompson, trustee for the St. Louis, Brownsville & Mexico Railway Company, debtor, for injuries sustained in an automobile-train collision. From a judgment for the plaintiff, defendant appeals and plaintiff files a cross-assignment of error.

Affirmed.

Faulk, Sharpe & Cunningham, Brownsville, for appellant.

Blakely & Sloan and Claude E. Carter, Harlingen, for appellee.

NORVELL, Justice.

Guy A. Thompson, Trustee for the St. Louis, Brownsville & Mexico Railway Company, Bankr. Act, § 77, 11 U.S.C.A. § 205, has appealed from a judgment rendered in favor of the plaintiff below, Thomas H. Goode. The jury found that appellee had been damaged in the sum of $17,500, but this amount was reduced to $13,000 by a remittitur suggested by the trial court.

Appellant presents five points of error.

By the first point it is urged that the trial court erred in overruling appellant's motion for a directed verdict in that the evidence showed as a matter of law that appellee was guilty of contributory negligence.

On August 20, 1947, at about 8 o'clock A.M., a train operated by the appellant and an automobile driven by appellee collided at a railroad crossing approximately two miles west of the City of Harlingen in Cameron County, Texas. The highway running between La Feria and Harlingen parallels the tracks of the railway company. Appellee had traveled in a westerly direction until he reached a local road known as Lewis Lane, where he turned off the highway to the north, stopped his automobile and looked to the east and then looked to the west. Next, he started up his car and attempted to cross the railroad track when he was struck by the locomotive of a train approaching from the east. According to appellee, his position in the driver's seat at the time his car was stopped was approximately thirty-eight feet from the nearest rail and about thirteen feet north of the edge of the pavement of the highway. There was a telephone pole located some twenty-two feet east of his position, so that he could only see 450 feet down the track in an easterly direction. His view was further hampered by a brightly shining morning sun. One of appellee's witnesses, Jack Purnell, testified as to certain experiments made by him. He placed six markers along the railroad track to the east of the crossing at fifty yard intervals, the first marker being placed fifty yards east of the Lewis Lane crossing, and the last being 300 yards east of the crossing. He then took a picture with a camera upon a stationary tripod at the location where appellee said he had stopped. This photograph shows that the last three markers to the east, toward Harlingen, were obscured by the telephone pole. Purnell also sat in an automobile in the position appellee's car was stopped (according to his testimony) and looked to the east toward Harlingen. According to Purnell, approximately a quarter of a mile of track was obstructed from view of the telephone pole.

The appellant relies upon the case of Dales v. Thompson, 162 S.W.2d 156, by this Court, in which we held that the appellant was guilty of contributory negligence as a matter of law. The facts distinguish Dales v. Thompson from the present case, although a similar crossing collision was involved. In the Dales case the driver of the automobile did not stop before proceeding onto the railroad tracks, but, on the contrary, drove his car around a stationary truck and onto the railroad tracks, where it was struck by the locomotive. It further appears that in Dales v. Thompson the view of the driver of the automobile was clear and unobstructed, while in the present case we have the peculiar circumstance of the location of the telephone pole in relation to the point where appellee stopped his car.

In passing upon the refusal of a motion for an instructed verdict we are required to view the evidence in the light most favorable to the appellee. We must accept his testimony as to the position of his car when he stopped prior to attempting to cross the railroad tracks, which, together with the morning sun accounted for his being unable to see a portion of the railroad track to the east. In turn, it is reasonable to suppose that he did not fully realize the extent to which his vision of the track was obscured. Appellee's conduct is to be judged by the test of the ordinary prudence and it can not be said that he failed to use any degree of care for his own safety. The issue was therefore one for the jury.

In Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197, S.W.2d 332, 333, Mr. Justice Simpson, speaking for the Supreme Court, said:

"Contributory negligence barring a recovery as a matter of law is a conclusion sometimes compelled by the evidence, but such cases are relatively rare. Ordinarily this question is for the trier of facts and only becomes a matter of law for the court when but one reasonable conclusion can be drawn from all the testimony. City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125; Texas & N. O. R. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683, error refused. It is obvious that had Day been more cautious, he would not have been injured. But whether the precautions he took amounted to due care was properly left to the jury. He waited until the receding train had gone a little over half a city block past the intersection before starting up his car, and then looked to the east, from whence the train that struck him was coming, but saw no train. He then looked to the west and put his car in motion toward the tracks. Again he looked to the east but too late either to stop his car or to clear the track and so avoid a collision. Thus the facts do not present a case where the injured person took no care for his own safety. It is only in instances where one crossing a railroad track has failed to exercise any degree of care for his safety that our courts have felt impelled to deny a recovery as a matter of law. International & G. N. R. Co. v. Edwards, 100 Tex. 22, 93 S.W. 106; Gulf, C. & S. F. R. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895; 35 Tex.Jur. 496 et seq.

See also Hines v. Arrant, Tex.Civ.App., 225 S.W. 767, error refused." Italics ours.

We overrule appellant's first point.

By his second point, appellant contends that the case should be reversed because of jury misconduct. Appellee was seventy-three years old at the time of the collision in the motion for new trial it was asserted that while the jury was deliberating one of the members said that he knew a man eighty years of age who was working and drawing full pay. The foreman immediately informed the jury that this matter could not be considered and no further discussion was had with reference thereto. Insofar as this matter is concerned we are of the opinion that no probable injury is disclosed.

The remaining matter urged as misconduct presents a more serious question. Upon the trial a witness named Bradford and his wife both testified that they heard the bell of the locomotive ringing shortly before the collision at the crossing. A special issue inquired as to the ringing of the bell and was answered unfavorably to the appellant, and contrary to the testimony of the Bradfords. The appellant contends that while the matter of the ringing of the bell was being discussed by the jury, one of the jurymen, probably named Lewis, stated that he was personally acquainted with Bradford, and that said witness was unworthy of belief. If this contention be supported by the evidence, then a serious case of jury misconduct is presented. Elizondo v. Reagan, Tex.Com.App., 55 S.W.2d 540; Cloudt v. Hutcherson, Tex.Civ.App., 175 S. W.2d 643. Obvious unfairness results when testimony is submitted to the jury during its deliberations when no opportunity can be afforded to investigate, explain or rebut such testimony.

It is, however, well settled that the question of whether or not an alleged act of misconduct occurred is a question of fact to be determined by the trial court and its finding with reference thereto cannot be disturbed by this Court as long as it has support in the evidence. As the trial court overruled the motion for new trial, a find-is implied that the alleged act of misconduct did not occur. Almost one hundred pages of the statement of facts is occupied by testimony given by former members of the jury who were recalled as witnesses and interrogated with reference to their deliberations. All of the members of the jury were subpoenaed to appear as witnesses upon motion for new trial and nine of them testified. Lewis, who was the one accused of overt misconduct, was not called by either party.

The parties are not in agreement as to the testimony bearing upon the occurrence. As a result, we have carefully examined the testimony of all the witnesses (former jurymen) who testified with reference to the matter. There is some conflict of testimony.

According to the witness...