Wichita Valley Ry. Co. v. Fite

• Decision Date: 14 December 1934
• Docket Number: No. 1341.,1341.
• Citation: 78 S.W.2d 714
• Parties: WICHITA VALLEY RY. CO. v. FITE et ux.
• Court: Texas Court of Appeals

78 S.W.2d 714

WICHITA VALLEY RY. CO. v. FITE et ux.

No. 1341.

Court of Civil Appeals of Texas. Eastland.

December 14, 1934.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Action by Perry A. Fite and wife against the Wichita Valley Railway Company. From a judgment for the plaintiffs, the defendant appeals.

Reversed and rendered.

Kirby, King & Overshiner, of Abilene, and Thompson & Barwise and F. B. Walker, all of Fort Worth, for appellant.

Blanton, Blanton & Blanton, of Abilene, for appellees.

FUNDERBURK, Justice.

By judgment of the court below, based upon a verdict of the jury rendered in response to special issues submitted, the plaintiffs, Perry A. Fite and wife, Mrs. Artie M. Fite, were awarded damages in the sum of $5,000 for injuries to themselves and their automobile resulting from a collision of the automobile with a box car standing at the time across state highway No. 1, at a point about two miles northeast of Abilene, Tex. The defendant, Wichita Valley Railway Company, has appealed.

Plaintiffs alleged different grounds of negligence which may be summarized as follows: (1) Failure of defendant to have a large railroad crossing sign on the east side of the railroad track, it being alleged that there was such sign on the west side of the track; (2) obstructing highway by leaving stationary box car across same at nighttime when it was dark and foggy; (3) obstructing highway by leaving stationary box car across same, and failing to place a brakeman with lantern to notify west-bound motorists on said highway of their danger in approaching the railroad crossing; (4) failing to install at crossing a bell, or swinging sign, or some other alarm that would notify motorists of the proximity of cars approaching or on the track.

The facts constituting each of these grounds of negligence were averred to be a proximate cause of the injuries alleged.

The defendant, in addition to a general denial, pleaded a number of different grounds of contributory negligence. The jury by their verdict found all issues of contributory negligence, as well as that of unavoidable accident, in favor of plaintiffs against the defendant.

On the issues of the negligence of the defendant the jury found: (a) That the railroad company's employees were negligent in permitting the box car to be standing across the highway at the time of the collision; (b) that the railroad company's employees were negligent in failing to place some one east of the box car to warn motorists approaching the railroad from the east, while the box car was across the highway.

In so far as these findings were findings of the facts alleged to be negligence, it was further found that they were the proximate cause of the injuries.

It is apparent there was eliminated, as support for the judgment, at least two of the grounds of negligence alleged. No issue was submitted regarding the failure of the defendant to have a large railroad crossing sign on the east side of the track. That ground of negligence was waived, unless the facts were undisputed and constituted negligence per se. The law (R. S. 1925, art. 6370) does not require that such signs be placed on both sides of a railroad track. Texas & N. O. Ry. Co. v. Stratton (Tex. Civ. App.) 74 S.W. (2d) 741. It is not the purpose of the law, in requiring maintenance of such signs, to prevent vehicles from running into cars while standing upon, or passing over, the road at a crossing. The purpose of such signs is to give notice, to persons approaching a crossing, of the proximity of the railroad. For this purpose such a sign on one side of the track was evidently deemed sufficient.

At any rate, it was not negligence per se to fail to have such sign on only one side of the track. But, even if it was, the judgment has no support in that ground of negligence, because there was no finding that the failure to have such sign on the east side of the track was a proximate cause of the injuries. Whether such negligence, if any, was the proximate cause of the injuries would at all events, under the evidence in this case, if any, be an issue of fact, and not of law.

No issue was submitted, or requested, regarding that ground of negligence pleaded consisting of the failure to install at the crossing a bell, swinging sign, or other alarm to notify motorists of the proximity of cars approaching or on the track. It was therefore waived.

The judgment for its validity must then depend upon special issues Nos. 1 and 3, or at least one of them. Special issue No. 1 was: "Do you find from a preponderance of the evidence that the railroad company's employees were negligent in permitting the box car to be standing across the highway at the time of the collision?" Special issue No. 3 was: "Do you find from a preponderance of the evidence that the railroad company's employees were negligent in failing to place someone east of the box car to warn motorists approaching the railroad from the east while the box car was across the highway?"

The appeal presents a number of very difficult questions arising upon this record, but, after careful consideration, we have concluded that it will be necessary to discuss but one proposition. The first question presented for decision is whether or not the evidence established conclusively as a matter of law that plaintiff Mrs. Artie M. Fite was guilty of, or chargeable with, contributory negligence. As a general rule, the existence of negligence, or contributory negligence, is a question of fact. "Unless but one reasonable conclusion can be drawn from the evidence, the question whether there has been negligence or contributory negligence is a question of fact to be determined by a jury." Galveston, H. & S. A. Ry. Co. v. Price (Tex. Com. App.) 240 S. W. 524, 526; Sanches v. San Antonio & A. P. Ry. Co., 88 Tex. 117, 30 S. W. 431; Ferrell v. Traction Co. (Tex. Com. App.) 235 S. W. 531; Kirksey v. So. Traction Co., 110 Tex. 190, 217 S. W. 139; Trochta v. Missouri, K. & T. Ry. Co. (Tex. Com. App.) 218 S. W. 1038; Texas & N. O. R. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188. Where, however, but one reasonable conclusion can be drawn from the undisputed evidence, the question becomes one of law. It must be admitted that the rule last stated is not always easy of application. However, one test of somewhat limited scope, recognized by good authority, has the merit of reasonable certainty in cases where applicable. It so happens, we think, that that test is one that can be applied in this case. It is that, where the undisputed evidence shows the existence of a danger and that the plaintiff, or injured party, had knowledge or was chargeable with knowledge of the danger and exercised no care whatever, then there is shown a case of contributory negligence as a matter of law. Gulf, C. & S. F. Ry. Co. v. Gaddis (Tex. Com. App.) 208...