Hines v. Roan , 1921 Tex. App. LEXIS 324 ( 1921 )

Plaintiff, appellee, alleged that defendant, the appellant, negligently killed his wife and baby in a railroad crossing accident in the city of Orange on or about the 10th day of October, 1918. The grounds of negligence were that defendant failed to blow the whistle or ring the bell as it approached the crossing, and that it was operating its passenger train at a dangerous rate of speed in the corporate limits of the city, in violation of a city ordinance limiting the speed to six miles per hour. No question is made as to the finding of the jury on the last issue, because all the testimony for both parties shows that defendant was negligent in this respect. We sustain the findings of the jury as to negligence in failing to ring the bell and blow the whistle. These issues were sharply contested, but, as the verdict of the jury is sustained by the positive testimony of the witness B. C. Hare, we do not feel justified in setting it aside. Appellant's exception to the manner in which these issues were submitted to the jury was not raised until its motion for new trial was filed. Hence it comes to late for our consideration.

Defendant answered by plea of contributory negligence, and this appeal rests on this issue. As we construe the testimony, it appears, without dispute, that the railroad track is level and straight for two or three miles east from the Park street crossing; that the train was approaching from the east; that the right of way was 50 feet wide, and when one was approaching this crossing on Park street, after reaching the property line 50 feet from the center of the track, there was no obstruction to the view of an approaching train from the east except a line of telegraph poles; that back as far as 220 feet from the center of the track one approaching the crossing on Park street, as did Mrs. Roan, could see a train approaching from the east as far down the track as 800 or 900 feet, there being no obstruction to the view of such approaching train except the line of telegraph poles above referred to. On the evening of the accident, Mrs. Roan, with her little boy, four years old, her mother-in-law, and sister-in-law, was driving on Park street toward this Park street crossing. Her sister-in-law was on the seat with her and her mother-in-law and little boy were on the back seat. Just as they reached the crossing the approaching passenger train hit the automobile, killing Mrs. Roan, her little boy, and her mother-in-law. Her sister-in-law, Miss Mavis Roan, who was riding in the seat with her, seems to have escaped without injury. She testified that they had been riding over town, and:

"When we started home, Zollie said, ``Mavis, you get up on the front seat with me; I hate to ride on the front by myself;' and I got up on the front with her. We were coming — we had passed Dr. Thomas', and she said, ``Mama, Dr. Thomas is living in his garage until his house is fixed.' He was our doctor. I glanced back. I noticed she slowed up; then is when I heard the crash. Previous to the time I heard the crash the car slowed up; when it slowed up we were real close to the track.

"Q. And you felt the car slow up and you saw her glance up the railroad track? A. Yes, sir.

"Q. Had you seen Mrs. Roan just previous to that, or were you talking about the house? I mean just previous to the time that you saw her look up the track? A. Had I seen her?

"Q. Were you looking at her or were you is a conversation? A. Well, we were just talking.

"Q. Talking along? A. Yes, sir. I did not hear the bell ring or the whistle blow, I did not hear a sound. The first thing I knew after being driven up on the railroad track was the crash when the train hit our car. I mean when I say I glanced around that I noticed she slowed up, and I looked to see why. She hadn't been going fast, and she slowed up, and that was real slow, and I looked back at Mr. Thomas'; she was coming down the stairs at her house with her little boy. I don't know whether she was looking in our direction or not. I never was unconscious at all. After the crash the first thing I know Mr. Joe Howell came and said, ``Here is Wright Roan's wife and kid and sister, and he picked me up. I don't know what happened to me when the train struck the car, I was on the front seat when it happened, and they picked me up from the back seat."

B. C. Hare, witness for plaintiff, saw the accident, and described it as follows:

"My initials are ``B. C.' I will soon be 22 years of age, and I have lived in Orange all my life. On the 10th day of October, 1918, I was about a block and a half from the Park avenue crossing of the T. N. O. railroad track and remember the accident which occurred in which Mr. Wright Roan's wife, mother, and son were killed. At the time of the accident I was between Orange and Cherry streets, about 10 or 18 feet from the railroad track on the west side towards the business section of Orange, and I purchased a newspaper from a boy. At the time I got the newspaper from the boy I was standing in the middle of the track, and I saw the train coming down the track about six blocks away from Park avenue. I bought the paper, stepped aside, and saw the car coming. I was then 10 or 12 feet from the railroad track. The car was on Park avenue going east toward the crossing. When I first saw it, it was about 50 or 60 feet from the crossing. It slowed down for the crossing, and the lady looked like to me she was looking down the track, and when she got within about 20 feet of the railroad she speeded up to go on over, as well as I could see. There is a little rise on that railroad track there of the street to go over the railroad. I have been to that spot lately where I saw that lady glance up the railroad track and looked in that direction, and I could see about a block and a half up the railroad track. At the time she glanced up in that direction the train was about four or five blocks up the track somewhere (indicating) about that big double cattle guard. When she started across the railroad track I saw the train coming on; it was traveling at a fast rate of speed. I did not hear the whistle or the bell ring, nor did I see any member of the train crew give any signal to warn persons crossing Park avenue that the train was approaching. I was looking at the train and did not see any steam rise from the whistle evidencing that the whistle had been blown. I could not see either the fireman or the engineer; they were coming towards me. From the time that I secured the newspaper and walked across the railroad track the train had gone from where I first saw it to where it came in contact with the car. After the train struck the car it looked like to me it carried it a half block before it ever got off."

The next morning after the accident Mrs. Thomas made the following statement, which was offered by the defendant:

"My name is Mrs. J. H. Thomas. I am 38 years of age, and am the wife of Dr. J. H. Thomas, of Orange. We live one block north and one-half block east of Park street crossing. On yesterday afternoon when the train struck an auto driven by Mrs. Wright Roan I was on Park street going toward the crossing with my little six year old son, Norvell, not more than one block north of the crossing. My house is situated on Twelfth street one-half block east of Park street, and as I was about to reach Park street the auto passed me. Twelfth street is the first street north of the track. As the auto passed me Mrs. Wright Roan turned around and looked at me, and then made some remark to the lady riding on the front seat with her, and then both ladies turned their heads around and looked at me again. I was on the east side of the street, and as Mrs. Roan looked at me she turned her head to the east looking over her left shoulder on both occasions. The auto was running at a moderate rate of speed (not more than 8 or 10 miles an hour), and after looking at me for the second time, and when Mrs. Roan looked back toward the train the auto was then about three-fourths of a block from the crossing. Before the automobile passed I had heard the train coming, but am not positive as to whether I heard it blow until just before it reached the crossing. The block north of the crossing and east of Park street is open, and I thought sure Mrs. Roan and the others knew the train was coming, as there was nothing to keep them from seeing it, and as I continued to watch the car I saw it was not stopping, and as I could see the train I was certain the car was going to be struck. The auto did not slow down but little, if any, until it reached the track, or about the track, and then I saw Mrs. Roan trying to stop the car. The auto appeared to jerk or lurch two or three times before the engine hit it, and I do not believe Mrs. Roan stopped it before it was struck. If she did it was right in the middle of the track. I do not think the auto slowed down but very little until the track was reached, although I am sure Mrs. Roan was trying to set the brake. It jerked and jumped forward two or three times just before it was struck. The driver of the car was a small lady, and it appeared that the car first started to jumping or lurching when it was more than half the distance up the dump. As the engine hit the auto I closed my eyes and threw my hands over my face, at the same time screaming. * * * In approaching the crossing, the train did not appear to be running unusually fast. I would say it was running about the usual speed. * * * Between the point where I was standing, which is about three-fourths of a block north of the crossing and the railroad crossing, there were no other automobiles or persons that I saw, and I am sure there were none about the crossing. As I have stated above, there was absolutely nothing to have obstructed the view of the occupants of the car of the approaching train, and I am positive they did not look in the direction of the train until it was too late to stop."

Appellant contends that Mrs. Roan was guilty of contributory negligence as a matter of law. We do not think so. Railway Co. v. Trochta (Tex.Com.App.) 218 S.W. 1038; Kirksey v. Southern Traction Co.,110 Tex. 190, 217 S.W. 139; Railway Co. v. Price, 222 S.W. 628.

This issue is not a question of what Mrs. Roan could have done, but what an ordinarily prudent person would have done under the same or similar circumstances. Railway Co. v. Arrant, 225 S.W. 768. She was driving over the city with her family. Her mother-in-law did not often go with her. They passed where Dr. Thomas was living. He was building a new home, and at that time was living in his garage. He was the family physician. What was more natural than that she would call this fact to the attention of those with her in the car? In speaking to her mother-in-law, who was on the back seat, she turned her face from the railroad track. So did Miss Mavis. In looking towards Dr. Thomas' home, she had to turn her face from the railroad track. The testimony in this record, as copied above, is sufficient to sustain a finding that these facts distracted the attention of these women from their danger until it was too late to stop the car.

In the Trochta Case, supra, the jury found that the deceased neither looked nor listened for the approaching train, and, as we understand the facts of that case, there was not much of an excuse, if any, for not looking and listening. Trochta was driving a team, and could have seen the train 50 feet before he reached the crossing. Our Supreme Court not only held that the facts of that case were sufficient to take this issue to the jury, but to sustain a finding acquitting the deceased of contributory negligence. In our judgment, this case is much stronger in plaintiff's favor than the Trochta. Case.

But view the case from Hare's testimony: When Mrs. Roan was 50 or 60 feet from the crossing, the train was 4 or 5 blocks away, 1,500 or 1,600 feet. He says he saw her look towards the train and slow down her car. Later he said it appeared to him that she tried to beat the train over the crossing. She had lived in Orange for several years. It is to be presumed that she knew of the ordinance limiting the speed of trains to 6 miles an hour. Some of the testimony was that the train was running at a speed of 30 miles an hour. Had appellant been measurably obeying the law, Mrs. Roan would have crossed in safety. This testimony is sufficient to take to the jury the issue of whether an ordinarily prudent person, in the exercise of ordinary care would have tried to cross in front of this train, believing it could be done with safety. Railway Co. v. Gaddis (Tex.Com.App.) 208 S.W. 895.

If Mrs. Roan brought the car to a stop or almost to a stop just before the accident, the evidence fairly raises the issue that this was done at a safe distance from the railroad track. (See Hare's testimony.) If she then accidentally lost control of it, negligence would not follow as a matter of law. So, from this view of the testimony, Mrs. Roan was not guilty of contributory negligence as a matter of law.

We would add further that, as we construe the record, the quoted evidence is sufficient, not only to raise the issues submitted in the charges of the court on contributory negligence, but to sustain the jury's verdict in plaintiff's favor. In passing on these fact issues, it is our duty to consider the testimony most favorably from plaintiff's standpoint, and, if there is a conflict, to reject that favorable to the defendant Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139.

On the issue of contributory negligence the jury were asked, in question 8:

"Was the deceased, Mrs. Zollie Roan, wife of the plaintiff, W. G. Roan, guilty of contributory negligence as hereinbefore defined?"

In connection with this charge, the court grouped all the issues entering into the charge of contributory negligence, and instructed them as to the effect of their finding. This question was answered in favor of plaintiff. The court also submitted to the jury question No. 12:

"Could the deceased, Mrs. Zollie Roan, by the exercise of ordinary care, have seen the approaching train in time to have stopped her automobile before the collision?"

— and on request of appellant special issue No. 5.

"(a) Did Mrs. Zollie Roan see the approaching train in time to have stopped her automobile before the collision? (b) Was the failure of Mrs. Zollie Roan to stop the automobile before it collided with the train the cause, or did it contribute to the resulting collision between the automobile and the defendant's engine?"

Had the jury answered these questions, as appellant contends they should have been answered, Mrs. Roan would not be convicted of contributory negligence. Negligence would not follow as a matter of law from an affirmative answer. The court had correctly submitted Mrs. Roan's negligence to the jury in connection with question 8 above referred to, and, if appellant desired a fuller or further submission, he should have requested it. Referring to question 12, it was not a question as to what Mrs. Roan could have done in the exercise of ordinary care, but what an ordinarily prudent person would have done in the same or similar circumstances. In Hines v. Arrant, 225 S.W. 768, the court said:

"If every one injured in a railroad collision who could by looking and listening discover the approach of the train before going upon the track is to be charged with contributory negligence, it would be difficult to find an instance in which that defense would not be fully established. The situations are exceedingly rare in which travelers cannot, if they will, ascertain whether or not it is safe to attempt a crossing. But the legal test is, not what the traveler could have done had he used his senses, but what an ordinarily prudent person would have done under the particular circumstances. Hence the courts have held that the failure to look and listen before going upon a railway track is not, as a matter of law, contributory negligence. Trochta et al. v. M., K. Ft. S. Ry. Co. (Com.App.) 218 S.W. 1038; Frugia v. T. Ft. S. Ry. Co.,36 Tex. Civ. App. 648, 82 S.W. 814; H. T. C. Ry. Co. v. Wilson,60 Tex. 142."

Referring to special issue No. 5 requested by appellant, if Mrs. Roan saw the train in time to have stopped her automobile, before the collision, and if her failure to stop it before it collided with the train caused or contributed to cause the resulting collision, unless her conduct was negligence, plaintiff's cause of action was not destroyed. So though the jury had answered these issues in appellant's favor, still plaintiff would be entitled to a verdict under the answer to question 8.

The charge of the court on the measure of damages is not subject to the assignment urged. Also we overrule the exception taken to the charge given in connection with question No. 8. If the charge were subject to the objection taken, the propositions advanced under the assignment are not germane to the exception, and have no relation to it.

Plaintiff was given damages in the sum of $20,000 for the death of his wife, and $15,000 for the death of his son. Appellant assigns error against these answers, on the ground that the amount assessed is excessive. Mrs. Roan was 26 years old, in good health, kept her house, and was faithful in the discharge of her duties as a wife. On authority of the recent holdings of our courts of appeal, we sustain the judgment for $20,000 for her death. In estimating the damages for the death of plaintiff's son, the jury were charged:

"The amount found by you, if any, must be limited to the value in money of the services of the son of plaintiff, W. B. Roan, during his minority, after deducting the probable expense of maintenance."

Under this charge the damages were assessed at $15,000. He was an intelligent child, 4 years old. From the testimony, the jury might have concluded that he would develop into an obedient son and a good citizen, but all men know that a child has little earning capacity before he is 15 or 16 years of age. At least, to that age he is a constant care and expense to his parents. This charge limits plaintiff's recovery "to the value in money of the services of the son of plaintiff, W. B. Roan, during his minority, after deducting the probable expense of maintenance." In order for the future earnings of a child 4 years old to have a present cash value of $15,000, it would be necessary for him to earn $25,000 or $30,000 by the time he reaches 21 years of age. Measuring plaintiff's recovery by the charge of the court, the common experience of men teaches us that this is an impossible sum. But, as plaintiff pleaded and proved his case, the court was without authority to enlarge this measure of recovery. In West Lumber Co. v. Hunt, 219 S.W. 1106, after discussing the measure submitted in this case, we said:

"And in addition to that [referring to the measure of damages submitted in the court's charge], by reason of the statute of this state, the father would also be entitled to recover the value of such contributions or aid of a pecuniary nature as he had a reasonable expectation of receiving from the son after reaching his majority had be lived."

As we have just said, based on his common-law rights, plaintiff's judgment for the death of his son is excessive, but we shall not suggest a remittitur, as we are unable to say from this record whether plaintiff has an additional remedy under the statute. This view of the case necessitates a reversal as to this part of the judgment, and it is accordingly so ordered. In all other respects the judgment of the trial court is affirmed.