Williams v. Texas & N. O. Ry. Co.

• Decision Date: 14 January 1937
• Docket Number: No. 1831,1831
• Citation: 100 S.W.2d 1077
• Parties: WILLIAMS v. TEXAS & N. O. RY. CO.
• Court: Texas Court of Appeals

100 S.W.2d 1077

WILLIAMS v. TEXAS & N. O. RY. CO.

No. 1831

Court of Civil Appeals of Texas. Waco.

January 14, 1937.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Action by Sam Williams against the Texas & New Orleans Railway Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Archie D. Gray, of Houston, and Felix Atwood and A. R. Stout, both of Ennis, for appellant.

Sewell, Taylor, Morris & Garwood, of Houston, and Hancock & Hancock, of Waxahachie, for appellee.

GALLAGHER, Chief Justice.

This suit was instituted by appellant, Sam Williams, against appellee, Texas & New Orleans Railway Company, to recover damages for personal injuries which he alleged he had sustained as the proximate result of various acts of negligence on the part of appellee. Appellee pleaded in general terms contributory negligence on the part of appellant.

The case is before us without a statement of facts. The transcript as a whole indicates that appellant was returning home about 9 o'clock at night along College street in the city of Waxahachie; that when he reached a point where said street was crossed by appellee's railroad a long freight train was about to pass, or was actually passing, across said street; that appellant was struck by said train, or by something projecting therefrom, knocked under the train, and suffered the loss of both his legs.

The case was submitted on special issues, in response to which the jury found that appellant was "run upon, struck and injured" by one of appellee's freight trains; that appellee's employees operated said train at the time at a rate of speed in excess of 20 miles per hour; and that they operated said train at said time at a reckless, excessive, and dangerous rate of speed. All said several acts of appellee's employees were found to have constituted negligence and to have been the proximate cause of appellant's injuries. The jury further found that appellant approached and came to a stop in such close proximity to said train as to be in danger of being struck by objects extending therefrom; that appellant stood and remained in such close proximity to said train as to be in danger of being struck by objects extending therefrom; that appellant chose to stand and wait for appellee's train to pass at a point where he was in danger of being struck by objects extending therefrom, when he might have waited in safety at other convenient places while said train passed; and that appellant remained in close proximity to said train without exercising ordinary care to discover the approach of objects that might be extending therefrom. The jury found that appellant was negligent in each of said instances; that such negligence was in each instance a proximate cause, but not the sole proximate cause of his injury, except that the issue of sole proximate cause was not submitted in connection with the second finding. The jury found that appellant had suffered damage in the sum of $1,700. The court rendered judgment for appellee.

Opinion.

Appellant presents a group of propositions in which he contends, in substance, that he could not be deemed in law to be negligent in failing to use ordinary care to avoid a particular danger, unless he knew of the particular situation which created such danger, or ought to have known of the same. Based on such contention, appellant insists that the court should have submitted whether he knew, or ought to have known, that objects projected from appellee's train which rendered his position at the time one of danger, and that, in the absence of such submission and an affirmative finding thereon, submission of any of the issues on contributory negligence as above recited constituted error and rendered findings of the jury in answer thereto immaterial. Appellant presents a further proposition that the submission of said several issues on contributory...