Wichita Valley Ry. Co. v. Southern Casualty Co.

• Citation: 284 S.W. 940
• Decision Date: 09 June 1926
• Docket Number: (No. 795-4455.)
• Parties: WICHITA VALLEY RY. CO. et al. v. SOUTHERN CASUALTY CO.
• Court: Supreme Court of Texas

284 S.W. 940

WICHITA VALLEY RY. CO. et al. v. SOUTHERN CASUALTY CO.

(No. 795-4455.)

Commission of Appeals of Texas, Section A.

June 9, 1926.

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

Action by the Southern Casualty Company against the Wichita Valley Railway Company and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals (273 S. W. 680), and defendants bring error. Reversed and remanded.

Bullington, Boone & Humphrey and Jno. B. King, all of Wichita Falls, and Thompson, Barwise & Wharton and F. B. Walker, all of Fort Worth, for plaintiffs in error.

Carrigan, Britain, Morgan & King, of Wichita Falls, for defendant in error.

BISHOP, J.

In this case judgment of the district court of Wichita county in favor of defendant in error, Southern Casualty Company, rendered on the verdict of a jury on special issues, was by the Court of Civil Appeals affirmed. 273 S. W. 680.

The defendant in error sought recovery for damages to an automobile caused by a collision of said automobile and a train operated by the Wichita Falls & Southern Railway Company on tracks belonging to the Wichita Valley Railway Company at a street crossing in the city of Wichita Falls, alleging that the negligence of plaintiffs in error was the proximate cause of the accident and damages in the following particulars, to wit: That they were negligent in failing to keep a watchman or flagman at the crossing to warn the public of approaching trains, and that they were negligent in not providing gates or electric signals or some other device whereby the passing public would have been warned of approaching trains.

The plaintiffs in error answered by general denial, and plea of contributory negligence on the part of W. R. Ferguson, who was driving the car at the time of the collision.

The jury, in response to the issues submitted, found that the evidence sustained these issues of negligence tendered by defendant in error and against the plea of contributory negligence.

The trial court at the request of plaintiffs in error submitted to the jury their special requested issue No. 7, as follows:

"You are instructed herein that an `unavoidable accident' is an accident that is not contributed to by the negligence of either party. Now, bearing in mind this definition of unavoidable accident, you will answer the following question: Was the collision in question an unavoidable accident?"

When the jury reported to the court that a verdict had been agreed on, and delivered same to the judge of the court, he read the questions and answers to same, and asked the jury if the answers constituted their verdict, to which the foreman replied that they did. While reading the verdict of the jury, the court discovered that the foreman had neglected to sign same, and returned the issues to the foreman for his signature befor the jury left the box. While the foreman was signing the verdict, the judge stated in the presence and hearing of the jury that their answer to a certain issue would cause the attorney for defendant in error some worry. Upon such remark being made, some of the jurors requested that they be permitted to return to the jury room and change their answer. The jury had answered special requested issue No. 7 in the affirmative. The court granted the request of the jury, and they returned to the jury room...