McNeel v. Texas N. O. R. Co. , 54 S.W.2d 571 ( 1932 )

Suit by Mrs. McNeel to recover $5,000 in her own right, and as next friend to recover for James McNeel, her minor son sixteen years of age, the sum of $10,000, damages alleged to have occurred by reason of the negligence of the appellee railroad. The several acts of alleged negligence were fully and adequately pleaded.

Appellee answered by general demurrer, general denial, and specially that the injuries of plaintiff James McNeel were the direct and sole result of his own negligent acts, fully setting forth the acts relied up on. Appellee also specially answered that appellant James McNeel was guilty of contributory negligence, which was the proximate cause of his injuries, specifically setting out the several matters asserted to constitute his contributory negligence.

The case was tried to a jury, but at the close of the evidence, the court, at the request of appellee, instructed the jury to return a verdict for defendant, appellee, which they did, and judgment was accordingly entered. Motion for a new trial was overruled, hence this appeal.

The facts show that appellee owned a railroad extending from the city of Beaumont to the town of Sabine, in Jefferson county, Tex., passing through the Spindletop oil fields some five miles south of the city of Beaumont. That said railroad had a switch track extending from its line of railway at a point about one mile north of the Spindletop oil fields eastward to the Magnolia refinery. That said switch track crossed a public road which extends from the city of Beaumont southward to the Spindletop oil fields, continuing in a southerly direction to the city of Port Arthur and the town of Sabine, and which public road is an extension of what is known as Highland avenue in the city of Beaumont. That Highland avenue is a paved road with smooth hard surface out as far as Spindletop oil fields, and from there on to Port Arthur is shelled. This road or highway is extensively used both day and night by automobiles, trucks, and other vehicles, and has been so used for many years. The road or highway crosses the switch track a few hundred yards north of the Spindletop oil fields almost at right angles — the highway at said crossing running practically north and south and the switch track east and west. The switch track was for the purpose of serving the oil fields, and usually operated but one train a day, that being at about 7:30 or 8 p. m. On September 13, 1930, at about 8 o'clock at night, the railroad servants were backing from the west a string of freight cars along the switch track eastward and across the public road crossing at a rate of about six miles per hour, and appellant James McNeel was riding with one W. L. Hargraves in an automobile which approached the crossing going south just about the time the first freight car was passing over the road crossing. Hargraves was driving his own car, a Whippet Four coupe with rumble seat. He and his two sons, and James McNeel, Wm. McNeel, and Edward Asbury — six of them — three in the front seat and three in the rumble seat, were going fishing to what is known as McFaddin Beach on the Gulf coast. James McNeel was riding in the rumble seat on the right side — the direction from which the train was approaching. Hargraves saw the freight cars on the crossing when he was seventy-five feet to one hundred feet from the crossing. He was driving forty miles per hour. His lights burning all right and his brakes operating all right. When he saw the freight cars on the crossing he put on his brakes and turned to the left — he was driving on the right side of the highway — east to avoid hitting the freight car, and ran off into a ditch, causing the injuries complained of. The highway consisted of paving in the center and gravel on the sides. The paved part was about eighteen feet in width. Hargraves testified that he was going forty miles an hour and that the freight cars were moving pretty slowly when he saw them. When asked if after the accident the locomotive bell was ringing he said that he did not hear it; that he was not listening for the bell; that he was not listening "for anything" before or after the accident. On cross-examination he was asked:

"Q. When you saw that car what did you do? A. I applied my brakes.

"Q. State whether or not they become effective and took hold when you applied them that day. A. They did, yes, sir.

"Q. What was your judgment as to whether you could bring your automobile to a stop and not strike that car, that box car? A. I did not know whether I could or not.

"Q. What was your judgment as to that, your best judgment on it? A. I do not think I could, I tried to.

"Q. As you approached there and saw the car, you applied your brakes, then what did you do with your car? A. I pulled to the left hand side of the road.

"Q. Why? A. So if the train did stop I might be able to go around the end of it.

"Q. And if it didn't stop, what? A. It didn't stop, so I took the ditch.

"Q. State whether the railroad train stopped or not. A. It did not.

"Q. Were you able to bring your car to a stop in the highway and not strike that car? A. No, sir.

"Q. What did you do with your automobile? A. I turned it in the ditch.

"Q. Where was the ditch, on which side of the highway? A. The one I turned into was on the left hand side.

"Q. What did your car strike when it went to the bottom of the ditch, if anything? A. It struck a culvert that goes under the railroad for drainage.

"Q. If you had not turned into the ditch, what would your car have done? A. It would have hit this railroad car.

"Q. Was there any way to avoid hitting it, except to take the ditch? A. No, sir.

"Q. State whether there was any light on the end of that train? A. No sir, I did not see any.

"Q. Was there a man on the back end of that car passing into the highway? A. No, sir.

"Q. State whether or not there was any person stationed there at the highway to pilot or guide that train across the highway? A. No, sir.

"Q. State whether or not there was any sparkler or anything of that kind on the end of that train. A. No, sir, there was no sparkler on it.

"Q. State whether or not there were any men on that train, and if there were, where were they? A. There were some men standing up in this car about probably half way of the car."

And again:

"Q. Now you said you thought if the train stopped you would run around the end of it, that's the reason you cut to the left? A. I did, yes, sir.

"Q. Why did you expect the train to stop? A. I thought maybe, when I first seen it, I thought maybe it was fixing to stop.

"Q. Why did you expect the train to stop when you were not going to stop? A. I did not expect them, I turned over in case they did stop I would go around.

"Q. In other words you could not stop but wanted the train to stop and if it did you would go around? A. In case I could not, I thought maybe if they stopped, I could go around."

And again:

"Q. So, after discovering the train 100 ft. away, you put on the brakes in emergency, you slid your wheels that distance, you got off the pavement and down into the ditch? A. I did not say I skidded 100 ft.

"Q. You put them in emergency from the beginning, didn't you? A. I never got hold of the emergency.

"Q. You were doing your best to stop, weren't you? A. Yes, sir."

In answer as to how fast he was running, he answered:

"We were running about 40 miles when we seen this train.

"Q. You continued at that speed until this train came into your vision? A. Yes, sir.

"Q. You think you were 75 or 100 ft. when you saw the train? A. Something like that, yes, sir.

"Q. Then you were going, well, were you looking for a train? A. No, sir.

"Q. Were you watching for a train? A. No, sir.

"Q. Did you look up to the west and east of you to see if a train was coming? A. I was looking straight down the highway.

"Q. Isn't it a fact you were not looking, were not paying any attention and not trying to see anything until it actually moved upon the road, isn't that a fact? A. No, I was looking down the highway and when it got on the highway I seen it.

"Q. There was nothing between you and that car to keep you from seeing it, if you had been looking, was there? A. If I had been looking at the tank I might have seen it, but I was looking down the highway."

In testifying as to how the train appeared to approach the crossing, and his seeing same, he was asked:

"Q. Well, if it didn't, what's your explanation you didn't see it as it moved from behind that tank? Your headlights were burning, you were 75 ft. away, your headlights would operate so it would illuminate the sides? A. That car was about the color of the highway.

"Q. But when the train moved out there and all that time, what kept you from seeing it? A. Well, it was just about the color of the highway, didn't show up much."

Appellant James McNeel testified that he was sixteen years old. That he was a guest riding with Hargraves going fishing. That the automobile was going at about forty miles an hour at the time it approached the crossing. That he was riding in the rumble seat on the right-hand side. That when the automobile was within 75 or 80 feet of the crossing he got a glimpse of the freight car backing onto the paved part of the highway. That he did not see the freight car until after Hargraves put on the brakes. That he saw neither a light nor any person on the end of the freight car backing onto the crossing. He said that he had been familiar with the crossing, driving over it for some three years, but that he had never before seen a train on the switch track. That he was on the side from which the train was coming. That if he had been looking he could have seen off to his right, but that he was not looking That he knew the track was there and that there was a sign at the crossing reading: "Railroad Crossing Lookout for Cars." That he had nothing to do with the driving of the automobile and did not say anything about it to Hargraves. That he never thought anything about the railroad. That he did not consider it any of his business about how the car was driven. That the lead freight car had gotten all the way across and the second car had the crossing blocked when the train stopped. That he did not hear any whistle and that he did not listen for the whistle, and that if the whistle had been blown 80 rods from the crossing it would not have made any impression upon him. In answer to the question, "State whether or not you saw this freight train before the happening, before your car went off into the ditch," he answered: "Well, when he put on the brakes, well, I think I got a glance of the freight train backing up there somewheres around two or three ft. from the pavement." And when asked whether he saw it before or after the brakes went on, he said, "I seen it after the brakes went on." He further stated he had never seen any train on that switch track before.

As this judgment was upon an instructed verdict, we shall not quote any of the testimony of the appellee's servants in charge of the train, though much of it was without dispute.

The verdict was directed and the judgment entered upon the theory that appellant was guilty of contributory negligence as a matter of law. Appellants strongly insist that such is not the case, but that whether contributory negligence appears is a question of fact for the jury, and that it was error for the court to instruct the verdict.

Contributory negligence ordinarily is a question of fact for the jury. But when the evidence is such that but one reasonable conclusion can be drawn from it, then the question is one of law for the court. The undisputed evidence, as reflected above, shows that when the automobile in which McNeel was riding as the guest of Hargraves was within some 75 to 100 feet of the crossing, approaching same at right angles and traveling forty miles per hour. Hargraves discovered the freight car slowly backing upon the highway — at the edge of the paved center of the road. He makes no pretense that he had kept any sort of lookout for trains, but in fact admits that he did not do so, but was looking straight ahead down the highway, neither looking nor listening. Upon seeing the freight car on the crossing he put on his brakes, and, though he was on the right-hand side of the road, turned to his left. He did this, he says, because he thought the train might stop and he could run around the end of the train, but when the train did not stop, he, in order to avoid colliding with the freight car, continued to the left and ran into a ditch where his car turned over and the injuries were received. The train was moving very slowly, not more than six miles per hour. Hargraves said he ran about 75 or 100 feet while the train was going about 18 feet. Hargraves for years had been perfectly familiar with the highway and the switch track and the crossing. He admits he did not listen for a train — was not thinking about a train. He says: "No I was looking down the highway * * * and paying no attention to anything else, and when it got on the highway I seen it." It was a clear night and the auto headlights were burning brightly.

My associates say that under the holding in the Trochta Case (Tex.Com.App.) 218 S.W. 1038, and other decisions following same, we cannot say, under the evidence, that Hargraves, the driver of the automobile, was guilty as a matter of law of such negligence as would defeat him for a recovery for damages, if any, suffered by him, but that the question was one of fact for the jury. The writer cannot agree to this conclusion. It is my opinion that under the above-stated facts coming from the driver of the automobile and appellant McNeel themselves, all reasonable minds can arrive at but one conclusion, and that is that the driver of the automobile, Hargraves, was utterly lacking in the exercise of due care, in fact of any care, for his own safety and those with him in the automobile, and was, therefore, guilty of such negligence as would, as a matter of law, defeat him in the recovery of any claim for damages he might assert in the premises. Texas Mexican R. Co. v. Hoy (Tex.Com.App.) 24 S.W.2d 18; Robinson v. Houston Belt Terminal Ry. Co. (Tex.Civ.App.)23 S.W.2d 894; Murphy v. Milheiser (Tex.Civ.App.) 30 S.W.2d 586 (writ refused); Missouri-Kansas-Texas R. Co. v. Cheek (Tex.Civ.App.)18 S.W.2d 804 (writ dismissed).

The testimony of appellant McNeel showing that he exercised no care for his safety, and that he was perfectly familiar with the crossing, and was aware of the speed and manner in which the automobile was operated at the time and place, and that he acquiesced in same, we think agreed that whatever of negligence, under the circumstances, of which the driver of the automobile, Hargraves, was guilty, should be and is imputable to appellant James McNeel. Texas Mexican R. Co. v. Hoy (Tex.Com.App.)24 S.W.2d 18, 20; Murphy v. Milheiser (Tex.Civ.App.) 30 S.W.2d 586 (writ refused). It being the opinion of the writer that Hargraves, the driver of the car, was guilty of contributory negligence as a matter of law, and that such negligence is imputable to appellant McNeel, the judgment should be affirmed.

In accordance with the views of my associates that the question of contributory negligence was one for the jury, and that the court erred in directing the verdict, the judgment will have to be reversed and the cause remanded, and it is so ordered.

Reversed and remanded.