Wichita Falls & S. R. Co. v. Tucker

• Decision Date: 26 March 1924
• Docket Number: (No. 7125.)
• Citation: 261 S.W. 518
• Parties: WICHITA FALLS & S. R. CO. v. TUCKER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 518

261 S.W. 518

WICHITA FALLS & S. R. CO. v. TUCKER.^*

(No. 7125.)

Court of Civil Appeals of Texas. San Antonio.

March 26, 1924.

Rehearing Denied April 23, 1924.

Error from District Court, Stephens County; C. O. Hamlin, Judge.

Action by M. E. Tucker against the Wichita Falls & Southern Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

G. O. Bateman, of Breckenridge, and Bullington, Boone, Humphrey & Hoffman, of Wichita Falls, for plaintiff in error.

W. A. Shields, of Houston, and Merritt & Leddy, of Dallas, for defendant in error.

COBBS, J.

Defendant in error sued plaintiff in error to recover damages by reason of injuries received by him while driving a Hudson automobile over a railroad crossing along Dyer street, in the city of Breckenridge, Stephens county, Tex., about 9 o'clock at night. In traveling along said street it was necessary to cross the tracks of the Wichita Falls & Southern Railroad Company, and just as he was crossing the track he was struck by the engine of one of plaintiff in error's south-bound trains, which seriously and permanently injured defendant in error, and demolished and destroyed his automobile.

Defendant in error further avers that in said collision he was struck on the back and shoulders and particularly in the lower part of his back, or the lumbar region thereof, causing serious and permanent injuries to him, and causing a curvature of the spine, and seriously and permanently injuring the spinal column, the vertebræ, the muscles, and cartilage and tissues adjacent thereto, the nerve centers adjacent thereto and extending therefrom, and the tendons and ligaments in his back and particularly in the lumbar regions — all of which injuries are permanent, serious, and progressive in their nature.

At the time of the injury there was another train standing on a track just west of the track on which the Wichita Falls & Southern Railroad Company's train was coming, which standing train extended up to the north edge of Dyer street, and so obstructed defendant in error's view that he did not see the approaching train until it was right on him. Before attempting to cross the track he stopped his automobile and looked and listened, and, hearing the approach of no train, nor seeing any, attempted to make the crossing when he was so struck and injured.

Defendant in error alleges that prior to his injury he was an able-bodied man, and was able to earn and did earn from $300 to $750 per month, that he has spent about $650 for doctor's bills and medical bills, and that the car so destroyed, prior to the collision, was of the value of $1,950.

Plaintiff in error filed various exceptions and answers.

The case was tried with a jury upon special issues, which were answered favorably to defendant in error, and a judgment in his favor for $10,900, was entered.

While this case is presented here with a voluminous record and numerous assignments of error, we think, boiled down, few errors assigned would cover all the questions raised in the case.

The court submitted more than 30 special issues, and the plaintiff in error requested some 82 special issues. There are 84 formal bills of exception to the refusal of the court to give the same, and the amended motion for a new trial contains 119 assignments of error.

This case does not differ much from those cases often before the courts, designated as railroad crossing injuries, though greatly magnified here by the various issues presented, the enormous record, and lengthy briefs.

But few real questions of law arise here, and they are such as have been many times disposed of by the appellate courts and become the settled law of the land. Keeney v. Wells (Mo. App.) 257 S. W. 1077.

Illustrative of the testimony introduced in this case, there are a number of photographs showing the road traveled, the railroad crossing, standing train, houses, and other obstructions at or near the place of accident, and a large map showing the route traveled by defendant in error.

Defendant in error was a taxicab driver, and on the night of the accident was serving passengers and had driven considerably about the city.

The charges or special issues given, which are unusually lengthy, submitted to the jury every supposable or possible issue or phase of negligence that could arise or happen at a railroad crossing.

We do not see how plaintiff in error was injured by the refusal of the court to explain to the jury what was meant by the wrong side and what was the right side of the road that defendant in error traveled, just before he got to the railroad crossing, and before he undertook to cross the tracks. He stopped his car on reaching the crossing, and looked and listened, then, after satisfying himself there was no danger, entered upon the tracks to cross over. Evidently the jury knew what the court meant by the charge, "Did the plaintiff, M. E. Tucker, drive his automobile on the wrong side of the street or crossing," for they answered, "No." That knowledge, independent of any statute, is common in America, and every one knows that it is the rule of the roads in this country to go on the right-hand side, just as the reverse is the common rule in England. Article 820k of the Penal Code, as amended by Act 1920 (Vernon's Ann. Pen. Code Supp. 1922, art. 820k), provides:

"The driver or operator of any vehicle in or upon any public highway in this state, shall drive or operate such vehicle in a careful manner with due regard for the safety and convenience of pedestrians and all other vehicles or traffic upon such highway, and whenever practicable shall travel upon the right-hand side of such highway, * * * unless the road on the left-hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead."

This statute has no application to railroad crossings. The law applicable to railroad crossings is contained in section 17 of Act April 9, 1917 (Vernon's Ann. Pen. Code Supp. 1918, art. 820l), and is as follows:

"Any person driving a motor vehicle or motorcycle, when approaching the intersection of a public street or highway with the tracks of a steam railroad or interurban railroad, where such street or highway crosses such track or tracks at grade, and...