St. Louis S.W. Ry. v. Larkin

On Motion for Rehearing. In its motion for rehearing, appellant insists that this court was in error in holding that the embankment on its right of way, which obstructed deceased's view of the approaching train, and also obstructed the view of appellant's engineer of an automobile approaching the crossing, could be made an independent ground of actionable negligence against appellant, and to sustain this contention, cites M., K. T. Ry. Co. of Texas v. Rogers, 91 Tex. 52, 40 S.W. 956; I. G. N. Ry. Co. v. Knight; 91 Tex. 660, 45 S.W. 556, 557; and G., II. S. A. Ry. Co. v. McCrorey (Tex.Com.App.) 23 S.W.2d 691.

It is not believed that the opinion in the instant case on this question is in conflict with the cases relied upon by appellant. In the Knight Case, supra, the rule in reference to obstructions permitted on the right of way is stated as follows: "In the case of Railway Co. v. Rogers * * * we held that it is not negligence for a railroad to put on its right of way obstructions to the view of one approaching, a crossing, whether the obstructions be placed there by the railroad for its own use, or by another, by the railroad's permission, to be used in connection with the business of the road. * * * It is obvious in the present case that the obstructions which were placed near the track of the defendant company were the ordinary structures used by the company in receiving and discharging its freight. When near a crossing, such structures necessarily obstruct the view of those using the highway, in passing over the track. From the very nature of the case, at every depot of a railway company the view of approaching trains must in some measure be shut off by the buildings which are requisite to the transaction of its business; and hence the erection and maintenance of such buildings cannot, on account of their obstructing the view of the track, be deemed negligence either in law or in fact."

In the McCrorey Case, supra, the obstruction under discussion was that produced by necessary excavation in constructing the railway track. Under the cited authorities, the rule is restricted, as shown in the Knight Case, to obstructions placed by the railroad for its own use, or by another with the railroad's permission "to be used in connection with the business of the road." The rule may be thus stated: Obstructions placed by a railroad on its right of way that are necessary, either for the transaction of the business of the railroad or for its operation, and obstructions placed on the right of way by others, with permission of the railroad, to be used in connection with the business of the railroad, cannot be made an independent ground of negligence, though such obstructions may obscure the view of trains to those crossing the railroad in the immediate vicinity of the obstruction. The instant case is not within this rule, for the offending embankment was not used for the transaction of any business of the railroad, or in connection with the operation of its trains, and could not be used for either purpose; nor was it made by any excavation in the construction of the railroad. The inference is clear from this record, that it was placed on the railroad's right of way when the highway was graded, and could easily have been removed without damage to the highway. We therefore hold that the trial court did not err in submitting as a ground of negligence the fact that this obstruction existed.

We have carefully examined all other questions insisted upon as grounds for rehearing, with the result that the motion for rehearing is overruled.

Appellee's motion for rehearing is likewise overruled. From this latter holding, Mr. Justice LOONEY dissents.