Trochta v. Missouri, K. & T. Ry. Co.

• Decision Date: 03 March 1920
• Docket Number: (No. 2914.)
• Citation: 218 S.W. 1038
• Parties: TROCHTA et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Supreme Court

Page 1038

218 S.W. 1038

TROCHTA et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

(No. 2914.)

Commission of Appeals of Texas, Section "A."

March 3, 1920.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Marie Trochta and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs reversed by Court of Civil Appeals (181 S. W. 761), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

A. E. Wood, of Granger, and Bryan, Stone & Wade, of Ft. Worth, for plaintiffs in error.

Spell & Sanford, of Waco, and Wilcox & Graves, of Georgetown, for defendant in error.

STRONG, J.

This action is by Marie Trochta, for herself and as next friend of Franciska Trochta, to recover damages for the death of Joseph Trochta. The facts, briefly stated, show that deceased lived five or six miles south of Granger, in Williamson county. In going to and returning from the town of Granger, he traveled the Granger-Taylor public road, which crossed defendant's line of railroad at right angles about one mile and a half south of said town. On August 13, 1913, while returning in an empty wagon from Granger to his home, Trochta was killed at this crossing by a collision between his wagon and a west-bound passenger train of defendant. The evidence shows that there was a heavy growth of timber in the angle formed by the public road and the railroad, which prevented one approaching the railroad, as deceased was, from seeing a train coming from the east, until he had entered upon the right of way. However, when deceased reached the line of the right of way, about fifty feet distant from the railroad track, he could have seen the approaching train, if he had been looking in that direction, at a distance of 194 yards; and when he had advanced fifteen feet further, he could have seen the train a distance of at least a half mile.

The jury found, in answer to special issues submitted, that the engineer did not give the statutory signal for the crossing, and that he was negligent in approaching the crossing at an unreasonable and dangerous rate of speed, and further found that when the engine was within about 100 yards of the crossing, the employés in charge thereof saw deceased approaching the crossing, realized his danger, and failed to sound the whistle to warn him, and that such failure was negligence directly causing the collision. Upon the issue of contributory negligence, the jury found that before driving upon the crossing deceased did not look, listen, or do any other act to discover the approaching train, but that his failure to do so did not constitute negligence on his part.

The trial court rendered judgment for plaintiffs, assessing the damages in accordance with the verdict of the jury. The Court of Civil Appeals reversed and remanded the cause for another trial, holding that under the findings of the jury deceased was guilty of contributory negligence as a matter of law, and that plaintiffs were not entitled to recover upon the issue of discovered peril. 181 S. W. 761.

It is not necessary, under the view we take of the case, to determine whether under the facts found by the jury deceased was guilty of contributory negligence. The law is well settled that, although deceased may have been guilty of contributory negligence in going upon the track, still, if the engineer after discovering his peril failed to exercise ordinary care to avoid injuring him, the defendant would be liable. The petition contains a specific allegation that the engineer, after discovering the peril of deceased, was negligent in failing to sound the whistle to warn him of the approach of the train. The engineer testified that when the engine was within about 100 yards of the crossing, he saw deceased (who was then about 35 feet from the track), and realized his danger; that he did not sound the whistle, but, instead immediately reversed the engine, thinking this the only recourse to avoid the collision. He further testified that it was impossible to both sound the whistle and reverse the engine at...