DocketNumber: No. 2261.
Citation Numbers: 54 S.W.2d 571
Judges: LAWHON, J.
Filed Date: 11/16/1932
Status: Precedential
Modified Date: 1/12/2023
In order that our reasons for reversing and remanding this case may be a little more fully stated, we will briefly summarize the evidence and apply the facts, as we understand them, to the only issue involved in this appeal.
As already stated in the opinion of Associate Justice O'QUINN, the switch track in question was used only one time each day. The driver of the automobile, Hargraves, and McNeel, one of the plaintiffs, both testified that although they had been over the crossing numerous times, they had never seen a train on this track before. The locomotive was backing and pulling a string of twenty-three freight cars in front of the locomotive and pushing two cars on the back from the west towards the crossing. The evidence raises the issue that there was no light on the end of the train as it entered the highway and no one was there to give signals or to pilot the train across the road. In fact, the evidence raises the issue that no signals or warning of any kind were given, so that persons using the highway would know that a train was preparing to cross. There was some evidence by the defendant that one man, or possibly two, were on the train with lighted lanterns, but, as the verdict was instructed, we must consider the evidence in its most favorable light from the standpoint of the injured party just before and at the time of the accident, rejecting all evidence favorable to the defendant. Barron v. Houston E. W. T. R. Co. (Tex.Com.App.)
The automobile in which McNeel, the injured party, was riding approached the crossing from the north and the driver saw the end of the train just about the time it reached the edge of the pavement. McNeel, the injured party, says it was within about 2 or 3 feet of the pavement. Both parties give the distance from the crossing at the time the train was seen at from 75 to 100 feet. The driver immediately applied his brakes and made every effort in his power, according to his testimony, to stop the automobile and avoid a collision with the train. He says, as we interpret his testimony, that he did not believe he could stop before the crossing was reached, but tried; he thought the train might stop before the freight car entirely crossed the pavement and in that event he thought he could go around the end of the train. The train did not stop so he ran into the ditch on the left-hand side of the highway in order to avoid a collision. He went to the left as he had no chance to get around the right end of the train on account of the long string of freight cars. He states that if he had not gone into the ditch he would have hit the train. The place of the accident was outside the city limits of Beaumont and forty miles an hour was not an unlawful rate of speed. The driver testified he was looking straight ahead and did not look to the right. The driver also testified that the car at the end of the train was about the same color as the pavement. As it was dark at the time, this fact would be an additional explanation as why he did not see the train sooner. It was a question of fact for the jury, under the evidence in this case, as to the distance from the crossing the driver and injured party should have commenced exercising some care to discover whether a train was about to cross the highway. Barron v. Houston E. W. T. R. Co., supra, and cases therein cited.
It is now too well settled to admit of argument that it is not contributory negligence, as a matter of law, for a person to fail to stop, look, and listen before going upon a railroad track. It is contended that the driver of the automobile was guilty of negligence which contributed to the accident in failing to look to the west of the highway. He says he was watching the road ahead. It is our opinion that in keeping a close *Page 576
lookout ahead, under the facts and circumstances of this case, his conduct was more in keeping with the conduct of a careful man than a careless man. In any event, we believe it was an issue for the jury. We think our conclusions are supported by the following authorities: Trochta v. M. K. T. Ry. Co. (Com.App.) 218 S.W. 1038; Lancaster v. Browder (Tex.Com.App.)
The cases relied on to support the instructed verdict are not, in our opinion, in point as applied to the facts of this case. In Robinson v. Houston Belt Terminal Ry. Co. (Tex.Civ.App.)
In the case of Texas Mex. Ry. Co. v. Hoy (Tex.Com.App.)
In Murphy v. Milheiser (Tex.Civ.App.)
In Missouri-Kansas-Texas R. Co. v. Cheek (Tex.Civ.App.)
The case of Texas N. O. Ry. Co. v. Adams (Tex.Civ.App.)
The plaintiff in the case under consideration alleged negligence on the part of the defendant railroad in failing to have a flagman on the end of the train and in moving the train into the highway without being able to observe that persons using the highway were approaching the crossing, and failing to have any light, fusee, or sparkler at the end of the train, and other acts of negligence, alleging that the defendant used no precaution to warn people using the highway that a train was about to cross. The evidence was sufficient to raise an issue as to one or more of these acts of negligence alleged, and that such negligence was the proximate cause of the injury.
Believing that the issue of contributory negligence was one for the jury, we, therefore, are of the opinion that the judgment of the trial court should be reversed, and the cause remanded for a new trial.