Davis v. Pettitt

The collision causing the injury of appellee was at a point where a public road crosses the railway track of the Galveston, Harrisburg San Antonio Railway Company. This crossing is known as the Peach Creek crossing. Onehalf mile east of the Peach Creek crossing the public road again crosses the railway track. Between these two crossings there is a trestle spanning some low land or creek. The whistling post for the most eastern crossing, a half mile east of the Peach Creek crossing, is one-fourth of a mile east therefrom. The engine which struck the automobile in which appellee and his companions were riding at the time of the collision was pulling a fast passenger train, approaching the two crossings from the east at a rate of speed of 35 miles an hour.

As grounds of negligence, among others not submitted to the jury, the plaintiff alleged as follows:

"The agents and employés in charge of said train approached the said crossing without blowing the whistle and ringing the bell at a distance of at least 80 rods from said public road and highway, and without keeping the bell ringing until the said crossing was passed"

— and not as for such crossing, as stated in the majority opinion. Appellant answered the allegation to the effect that its employés had failed to ring the bell and sound the whistle at least 80 rods from Peach Creek crossing (not for said crossing), by general denial. The case was submitted upon special issues, and the only grounds of negligence submitted were:

"Did those in charge of the locomotive fail to sound the whistle thereon at a distance of at least 80 rods (440 yards) from the public crossing, and fail at such distance to commence ringing and to continue to ring the bell thereon until just before the collision occurred?"

Herbert Parker, witness for the plaintiff, testified positively, and not incidentally only, as stated in the majority opinion, that he was near the Peach Creek crossing, waiting for the train to pass, and that he heard the whistle sounded at or near the whistling post set for the east crossing, the same being 440 yards east therefrom. This testimony of Parker is not disputed by any witness. The men in charge of the locomotive both testified that the whistle and bell were sounded for both crossings. Witnesses Wiley Hassell and his wife, and Frank Smith and his wife, testified that they heard the whistle blown after it passed the east crossing and near the east end of the trestle, which was shown to be about 400 or 500 yards from the Peach Creek crossing. Two witnesses by the name of Ray testified that they were at their store, near the Peach Creek crossing, and that no whistle was sounded or bell rung for said crossing. Two of the occupants of the automobile testified that they did not hear any whistle or bell.

Appellant, contending that the provisions of the statute requiring that the whistle of an engine approaching a public road crossing shall be sounded at least 80 rods distant from such crossing is fully complied with if the whistle is sounded more than 80 rods from the crossing and at such distance there from as to be reasonably calculated to constitute a sufficient warning to persons about to use the crossing of the approach of the train, notwithstanding there may be an intervening crossing, requested the court to charge the jury as follows:

"You are instructed that, if you believe from the evidence that the whistle of the engine was sounded at a distance of more than 80 rods from the crossing where the collision occurred, and that such point at which the whistle was so sounded was so situated as that said whistle so sounded at such point could be heard at and in vicinity of said crossing, and was sufficient to constitute a warning to those about to use the crossing of the approach of the train, you will, in your findings under issue No. 1, find that the whistle was sounded at least 80 rods from the public road crossing where the collision occurred."

Issue No. 1, referred to in the foregoing requested charge, reads as follows:

"Did those in charge of the locomotive fail to sound the whistle thereon a distance of at least 80 rods (440 yards) from the public crossing, and fail at such distance to commence ringing and continue to ring the bell thereon until just before the collision occurred?"

Appellee now contends, in effect, and we presume he did so in the trial court, that appellant was not entitled to the requested charge, even if it should be conceded that the whistle was blown for the crossing east of the Peach Creek crossing, as testified to by the witness Parker, and if it he further conceded that the point at which it was blown was at least 80 rods from said Peach Creek crossing, and could be heard at and in the vicinity of said crossing, and by those about to use the same, still appellant was not entitled to have the requested charge given, for the reason that such sounding of the whistle was for another crossing, and not for the Peach Creek crossing, where the collision occurred, and because proof of the whistling for the east crossing was not admissible, because not in rebuttal of plaintiff's allegations of failure to give signals for the Peach Creek crossing, in that such proof was an attempt to avoid the effect of the plaintiff's allegations, and in order to do so it was incumbent upon the defendant to plead affirmatively that the whistle was blown for the crossing to the east of the Peach Creek crossing. The court refused to submit the requested charge, and appellant has assigned such refusal as reversible error.

I agree with appellant's contention, and therefore dissent from the opinion of the majority in affirming the judgment of the trial court. To recover for negligence for failure to sound the whistle for a crossing, it is incumbent upon the plaintiff, not only to plead, but to show affirmatively, that the whistle was not sounded at a distance of at least 80 rods of such crossing, and negative testimony of the occupants of the automobile, struck at such crossing, that they did not hear the whistle as the train approached, Is Insufficient to sustain a finding that the whistle was not blown for the crossing at the proper distance therefrom. Schaff v. Bearden (Tex. Civ. App.) 211 S.W. 503. The majority of this court, as is apparent from the majority opinion, adopted the contention of the plaintiff that it was incumbent upon the defendant to do more than enter its general denial to the plaintiff's allegation that the whistle was not blown as required by the statutes, and that to entitle defendant to prove that the point at which the whistle was sounded east of the crossing situated one-half mile east of the Peach Creek crossing was at least 80 rods from the crossing where the accident occurred, and so near thereto as would reasonably give warning to those about to use such crossing of the approach of the train, it was necessary for it (the defendant) to affirmatively allege such facts in its answer.

I am unable to discuss such contention or holding further than to say that, in view of the numerous decisions of our courts that a general denial on the part of the defendant in such case casts the burden upon the plaintiff, not only to plead negligence, but to affirmatively prove the same, such proposition is to my mind an absurdity. The majority opinion, in effect, holds that if the whistle was sounded at a point at least 80 rods from the crossing where the accident occurred, and that even if such sounding was sufficient to give warning to those about to use such crossing of the approach of the train, still it did not meet the requirements of the law, because there was another crossing lying between the point of the whistling and the crossing where the accident occurred. Such a holding, to my mind, if finally established, would indeed be the establishment of a dangerous rule, in direct conflict with the wording of the statute on the subject. Suppose it be admitted that the whistle was blown at the point east of the east crossing, and that it was at a distance at least 80 rods from the crossing where the accident occurred, and that it was sufficiently near to such crossing to give warning to those about to use the same of the approach of the train, could it be reasonably said that because of the intervening crossing such sounding of the whistle did not meet the demands of the law? I think not. In support of my contentions I quote from the following decisions:

I. G. N. Ry. Co. v. Ives, 31 Tex. Civ. App. 272, 71 S.W. 772:

"The meaning of this provision, as stated by our Supreme Court, is `that, in order to comply with the statute, the whistle must be blown at some point sufficiently near the crossing to be reasonably calculated to give warning to persons about to use the same; such point not to be nearer to such crossing than 80 rods.' Railway v. O'Neal, 91 Tex. 671,47 S.W. 95."

Edwards v. Railway Co., 105 Tex. 404, 151 S.W. 289:

"But it is claimed that the farm crossing at which the whistle was sounded was more than 80 rods from the public crossing. The statute quoted above requires that the whistle must be sounded `at least' eighty rods, and, being sounded in obedience to that law, it was necessary and usual. It need not have been blown at any particular distance from the crossing, if not less than 80 rods and at such point as would give notice of the train's approach to persons who might be near to and intending to use the public crossing."

There are many other decisions which may be cited to the same effect as those quoted from, but it is unnecessary to cite them. For the reasons hereinbefore stated, I think the defendant's special charge should have been given, and that the refusal of the court to give it constitutes reversible error.

By appellee's third counter proposition it is admitted that the undisputed evidence shows that the whistle was sounded for the east crossing at a point three-fourths of a mile, or 1,320 yards, from the crossing at which the accident occurred, and that the automobile was approaching the crossing, in an opposite direction from the train's approach, at a rate of speed of 25 miles an hour, thus placing the automobile 910 yards west of the crossing and 2,260 yards from the train at the time the whistle was sounded. It was insisted that these facts show as a matter of law that sounding the whistle under such circumstances could not constitute the warning of the approach of the train to the crossing required by the statute, and for this reason the requested charge was properly refused. It is evident that the majority of this court adopted the foregoing contention, for in their opinion they say:

"In this state of the record, we think the charge related to an irrelevant issue, and that its refusal did not constitute error. It is evident, we think, that the matter was an afterthought with appellant, and that, in the circumstances, the sounding of a whistle for another crossing should not be regarded as a compliance with appellant's statutory duty in that regard toward appellee, who intended to use the Peach Creek crossing only; especially does this consideration seem controlling when it is recalled that the uncontroverted evidence showed that at the time of this whistle for the second crossing the train, running 35 miles an hour, was three-fourths of a mile, or 1,320 yards, from the crossing at which the collision occurred, and that the automobile, by estimate, was then about 940 yards away from it in an opposite direction, making the train and the automobile at the time about 2,260 yards, or nearly a mile and a half, apart."

This holding of the majority is, in effect, a holding that, even if the sounding of the whistle at the point at which it was sounded under ordinary circumstances would have met the requirements of the law, it did not do so under the facts shown. The effect of such holding is that those in charge of the locomotive must, in sounding the whistle, contemplate that an automobile may be approaching the crossing at a rate of speed of 25 miles, or even 50 miles, an hour, and in sounding the whistle be governed thereby. To this holding I cannot agree. Just as well say that they should contemplate that the automobile was running with its cut-out open and was making an unusual noise, which would prevent its occupants from hearing the whistle and should be governed thereby, though under ordinary circumstances such whistling would have met the demands of the law.

If it should be shown that a train, either freight or passenger, was approaching a public road crossing at a rate of speed of, say 15 miles an hour, and that the whistle was sounded at a distance of only 600 yards from such crossing, could it be reasonably said that a jury would not be justified in finding that the law with reference to sounding of the whistle had been complied with, notwithstanding that at the time said whistle was sounded an automobile was approaching said crossing from an opposite direction at a rate of speed of 40 miles an hour, which, as a consequence, would place said automobile about 2,000 yards from the crossing at such time, and 2,600 yards from the train? Could it be held that under such circumstances the trainmen should take knowledge of the approach of the automobile and its speed, and that a failure to do so would have the effect to make the signals required by law of no effect? I think not. Yet the appellee contends, and the majority opinion sustains, just such propositions. In other words, the majority in effect holds that, although the jury might have properly found, if the requested charge of appellant had been given, that under ordinary and usual circumstances and conditions the law would have been complied with by the sounding of the whistle at the place where it was sounded, still, as the automobile was down the road 940 yards from the crossing, running at a speed of 25 miles an hour, a fact unknown to the operatives of the train, such sounding of the whistle, otherwise sufficient to meet the demands of the law, was as a matter of law insufficient.

I am firmly of the opinion that whether the whistle, conceded to have been sounded for the east crossing, was at a point at least 80 rods from the crossing where the collision occurred, and whether such whistle could have been heard at such crossing by those about to cross over the same, were questions for the jury, and that the court erred in refusing to submit those questions to the jury when requested to do so by appellant. For the reasons pointed out, I respectfully enter my dissent.