Smith v. El Paso N.E. R. Co. ( 1933 )

On Second Motion for Rehearing. Among other grounds for a rehearing, appellees present the following:

"(3) The court erred in holding under the facts in this case that after Sears discovered the Smith car approaching the crossing and could reasonably infer that the driver would likely undertake to cross the track, it was his duty to use the facilities at hand to prevent a collision either by stopping or lessening the speed of his train and that he had no right to wait until he was absolutely certain that the deceased was going into a place of danger before taking the proper steps to avoid injuring her, because such holding announces a rule of law contrary to and in conflict with the decisions of the Supreme Court of Texas, and Courts of Civil Appeals, respectively, in the cases of Texas Pacific Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Texas Pacific Co. v. Staggs, 90 Tex. 458, 39 S.W. 295; Martin et al. v. Railway,87 Tex. 123, 26 S.W. 1052; St. L. S.W. Ry. Co. v. Watts, 110 Tex. 106,216 S.W. 391; International Great Northern Ry. Co. v. Ploeger et al. (Tex.Civ.App.) 96 S.W. 56; Fort Worth Denver City Ry. Co. v. Shetter, 94 Tex. 119, 59 S.W. 533; M. K. T. Ry. Co. v. Magee,92 Tex. 616, 50 S.W. 1013; Schaff v. Gooch (Tex.Civ.App.) 218 S.W. 873; Texas New Orleans Ry. Co. v. Wagner (Tex.Civ.App.) 262 S.W. 902; San Antonio Traction Company v. Kelleher, 48 Tex. Civ. App. 421,107 S.W. 65, and Northern Traction Company v. Southern Surety Co. et al. (Tex.Civ.App.) 250 S.W. 229, in this, to-wit: That the decision of this court would impose upon brakeman Sears the duty, when he discovered the deceased's automobile slowing down behind a car that was already parked awaiting the passing of the locomotive over the street crossing, when it appeared to him, Sears, that said car was going to stop behind the car that had stopped to await the passing of such locomotive over the crossing, and at a time when said deceased was not in a perilous situation and was absolutely free from any danger of injury at a distance more than 75 feet from the railway track, of stopping his engine at a time when it was in full view of the deceased and when she could have, by the exercise of any care whatever, remained clear and free from any perilous situation or danger by reason of the moving of said locomotive over such crossing, while the rule announced in the cases above mentioned imposes no duty upon Sears to have stopped his engine or lessened the speed thereof until it became known to him that the deceased was actually exposed to imminent danger.

"(4) This court erred in applying the doctrine of discovered peril to this case based upon the circumstance of Brakeman Sears having discovered the automobile driven by deceased, Mrs. Mousie Smith, as it was approaching the railway crossing at a distance of some 75 feet and slowing down behind a car referred to in the record as the Marston car."

Appellees' counsel, it appears from the above, construes our holding to be that Sears should have taken some steps, when he first saw the Smith car approaching, to have prevented the collision. Such is not the conclusion reached by the writer. In view of the testimony of Sears that the automobile slowed down behind another automobile and the testimony of Mrs. Jennie Thompson that Mrs. Smith slowed down the automobile at Grant avenue, I am of the opinion that Sears was justified in concluding that the automobile was going to wait until the engine had passed the crossing. I am also of the opinion that Sears' action, when he saw the car coming around the standing car and realized that the driver was attempting to cross behind the engine, did not render his employer liable under the doctrine of discovered peril; the record showing that he was occupied in getting himself into a place of safety and therefore had neither time nor opportunity to use the means at hand to prevent the injury to Mrs. Smith. As to Wonner, however, I feel that things were different. He testified that when he first saw the Smith car it was 3 or 4 feet east of the street car track and 15 or 20 feet north of the railroad track, and after it was passing the standing car. It thereupon became his duty to use all the means at hand to avoid injuring the occupants of the car. While it is true that the record shows that a use by him of all the means possible would not have prevented the original impact, yet there is evidence, I think, which shows that, if he had used all the means at his command, the Smith car would not have been carried to the point where, as some of the testimony shows, Mrs. Smith fell out and was thereafter injured; at least, there is evidence sufficient to raise an issue on that question. The witness Woodley testified that the engine involved in this accident compared substantially with the engines he had been operating; that the braking equipment was identically the same; that an engine of such type, equipped as it was, backing up a 1 per cent. grade at a speed of eight to ten miles per hour, could be stopped within 45 feet; and that he had stopped a similar engine going ten miles per hour in 28 feet.

The witness Gomez testified that Mrs. Smith fell out of the automobile just about 100 feet east of the east side of Piedras street.

The testimony of Woodley, if believed, would show that Wonner did not stop the engine as soon as it could have been stopped, and from the other evidence in the case it is made to appear that, if he had so stopped it, Mrs. Smith would never have fallen out of the automobile and probably would not have been killed.

I am of the opinion that these facts and circumstances make an issue of fact as to whether or not appellee's agents used all the means at hand to avoid injuring Mrs. Smith, after they found her to be in a position of danger and that the jury's finding on the issue of discovered peril is supported thereby.

The motion for rehearing should, therefore, be overruled.