Wohlford v. Texas & N. O. R. Co., 3445.

• Decision Date: 03 May 1939
• Docket Number: No. 3445.,3445.
• Citation: 128 S.W.2d 449
• Parties: WOHLFORD v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

Page 449

128 S.W.2d 449

WOHLFORD v. TEXAS & N. O. R. CO.

No. 3445.

Court of Civil Appeals of Texas. Beaumont.

May 3, 1939.

Rehearing Denied May 17, 1939.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Action for personal injuries by Lowell Wohlford against the Texas & New Orleans Railroad Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

W. J. Baldwin and Howell & Howell, all of Beaumont, for appellant.

Duff & Cecil, of Beaumont, and Baker, Botts, Andrews & Wharton, of Houston, for appellee.

WALKER, Chief Justice.

Two switch tracks owned and operated by appellee, Texas and New Orleans Railroad Company, cross Clinton Drive, which runs east and west, one of the principal streets in the City of Houston; one called "the west track" runs in a northerly direction, and the other, "the east track," curves in a northeasterly direction, after crossing the street. On the north edge of the street, the tracks are about 25 feet apart, and about 10 feet on the south edge; a short distance south of the street the tracks come together forming a "Y." The tracks are elevated above the street level. On the north side of the street, east of and a short distance from the east track, begins a row of houses, obscuring the view of one driving west on the street, approaching the crossing. Appellee maintains a signal light at the crossing, but no bells, to warn the public using the street of the approach of its trains.

On the 5th day of September, 1937, as one Harry Hutto was driving his truck in a westerly direction on Clinton Drive, with appellant, Lowell Wohlford, as his passenger, his truck collided with one of appellee's locomotives. This suit was brought by appellant against appellee for damages for the personal injuries suffered by him in the collision. The jury found the following facts:

As the train approached the crossing the engineer failed to blow the whistle and the fireman failed to ring the bell, as directed by law, but this failure on their part was not a proximate cause of the collision. The signal light maintained by appellee at the crossing failed to operate properly, but this was not negligence. Appellee was guilty of negligence in failing to maintain bells at the crossing, but this was not a proximate cause of the collision. Hutto drove his truck into the side of the locomotive, but neither he nor appellant was guilty of contributory negligence in any respect, proximately causing the collision. In its verdict the jury found and recited, "We agree to allow plaintiff a lump sum of $8250.00." On the verdict judgment was for appellee.

Since the collision occurred on the east track and since the engineer and fireman failed to blow the whistle and ring the bell, in the manner required by law, appellant contends, "under the undisputed evidence," that such negligence was, as a matter of law, a proximate cause of the collision. On this proposition he gives great weight to the following fact: The collision occurred on the east track, and the bell was not rung nor the whistle blown as the train approached the crossing. On the theory that the train was on the east track, appellee did not controvert appellant's testimony. Appellee's theory of the case was that the collision occurred on the west track and that the whistle was blown and the bell rung; on that theory appellant did not controvert appellee's testimony. On the issue of proximate cause, these facts are immaterial. That is to say, since the jury found that the whistle was not blown and the bell was not rung as the train approached the crossing on the east track, it was immaterial that appellee's testimony was to the effect that the collision occurred on the west track, and that the whistle was blown and the bell rung.

Appellant's proposition is that, on the undisputed evidence, proximate cause was established as a matter of law. If it can be said that, in the exercise of ordinary care, appellee should have foreseen the collision, then appellant's proposition should be sustained. Ramirez v. Salinas et al., Tex.Com.App., 117 S.W.2d 56; International-Great Northern Ry. Co. v. Hawthorne, Tex.Com.App., 116 S.W.2d 1056. But the general rule is that the issue of proximate cause is a fact question for the jury. Jones v. Gibson, Tex.Civ. App., 18 S.W.2d 744. The rules for determining proximate cause are the same, both on the issue of negligence at common law and negligence as the result of failure to observe a statutory duty. Ball v. Gulf States Utilities Co., Tex.Civ.App., 123 S.W. 2d 937. The facts of this case do not take it out of the general rule. The collision occurred in the daytime; Hutto drove his truck into appellee's locomotive. As a matter of law, appellee should not have anticipated the collision.

What we have said also denies the assignment that the jury's findings on the issues of proximate cause were without support in the evidence.

By his argument, which does not have support in an assignment of error nor in a proposition, brought forward in his brief, appellant complains of the jury's finding on the issue of unavoidable accident, and of the conduct of the jury in making its verdict on that issue. As briefed, we sustain appellee's exceptions to this argument. But after giving careful consideration to the point, we have concluded that error is not established.

Appellant assigns misconduct on the part of the jury while deliberating upon its verdict in the following respects:

(a) They discussed the fact that the railroad company was "broke," and that appellant should have carried "insurance." The testimony on these issues was conflicting. Some of the jurors said that they heard these matters discussed, but Juror Cormier gave the following testimony:

"Q. Did you hear any discussion in the jury room with reference to the railroad company being broke? A. No, sir. It may have been mentioned, but I just don't remember it.

"Q. Did you hear any discussion in the jury room about the fact that this plaintiff, Wohlford, should have carried insurance upon himself? A. Yes, there was something said about insurance, but I don't remember clearly whether it was said whether he should carry it. I thought the man was talking about himself as having insurance."

The testimony of Juror Cormier was sufficient to support a finding by the...