*1 Tex.) GRAHAM v. HINES (240 S.W.) corporate embracing of Denton. limits “any expressly provided defined Agent, (No. 8104.) It that GRAHAMv. is HINES, et al.* road district now or hereafter to be described (Court Appeals of Civil of Texas. Galveston. Texas,” upon within state of defined 24, Rehearing March 1922. Denied “may organized established, being or May 4, 1922.) may .villages towns, munici- not include &wkey;o359(l) pal may, 1. Trial corporations,” “in addition required recon- —Court cile conflicts in answers on special debts,” by issues. all consent of the voters other duty It is the apparent court’s to reconcile expressed election, in an oth- “issue bonds or special conflicts in the answers on issues if it not to erwise lend its credit amount reasonably can be light plead- done in the valuation exceed one-fourth the assessed ings and the evidence. property terri- real district tory” maintenance, construction, and 2. — Findings Railroads accident, <®=o352 as to operation macadamized, graveled, held not contradictory. Special findings paved turnpikes, inor there- roads and aid that failed to re- motorcycle duce the Texas; of his of, 52, to six S, miles Article Constitution § hour, though an his view of defendant’s track express- 627-641, articles R. has been S. It obstructed, and that such failure was a ly held that—(cid:127) collision, cause of the and that he provision could “The constitutional referred to does avoided the collision after he discov- approach prohibit plácing ered the not of an additional burden the train the exercise ordinary upon property of to plaintiff that taxation held located not within to entitle defendant city already findings in view of has town reached its con- other indebtedness, was not speed, stitutional limits of bonded but unlawful up discovery ap- prohibits time of his mu- it nicipality words, bonded indebtedness proaching acting beyond ordinarily train he as an a certain limit. In other prudent person, discovering county city government train town frightened incapable he became so separate legal government tities, territory, that he was en- are and distinct prudent action, particular of defend- embrace a while each reasonably produce ant was yet separate distinct, calculated person ordinary pru- in the mind aof imposition in- of a tax one does not dence, and that under the circumstances he did other.” indebtedness Moore crease the degree person exercise the of care aof of or- County (Tex. App.) 849; Civ.
v. Bell dinary prudence; being not con- Lightfoot, 105 Tex. 146 S. Simmons tradictory, susceptible of construction that 872.W. plaintiff ized. proper exercised the care until terror- solely affirmed. proposed hibition tend to lished under the refers ute territory” road district court “thereafter” trict of the meaning established town town the tory” is bonded St. to be ton,” There “a defined district made, outstanding bonds, petition Supp. ground not under the in hand. of Denton was Consequently, boundaries considered. to and a town indebtedness Denton being no error “a sustaining road bonds road district do 1918. the article under the political “county” previously article sought not, already is acting “overlapping is presented, charter, act, prohibited limited to we general 637d, Further, is subdivision,” road district No. illegally embraced with “overlapping of district No. already in a road dis “of the town does provisions of the stat think, general at the time reckoning created under Vernon’s Ann. Civ. created. existing not reach nor alleged county,” the same independent territory show that considered. improvement demurrer created article 637d allegations, within and hav of Den- act estab other terri same road pro ex duce or lic street 30 feet “where ed either 820Z, 4. pable dence. no fault of his state of acts or omissions which occur failure to exercise juries. cumstances did not til he 3. Railroads with reference to he was 5. Criminal so iting contributory rider held motoreyde Negligence Vernon’s Ann. Pen. Code No Where frightened penal making discovered care incapable of such reason of acting hour at some statute. view of the said law not &wkey;>334 at obstructed toward an <&wkey;>72 approach or terror as to render him inca- will be held highway negligence. and terrorized on person driving track, negligent. <&wkey;-!3 own, of rational and ordinary partially,” avoiding preclude recovery — — unless there are vehicle not to exceed 6 railroad’s his mind is in driver of track at Acts Frightened with railroad —-Motor intersection responsible care under the cir- during fright Supp. 1918, not nearer than who fails to re- a motor vehicle vehicle law lim- when, through prudent action, discovery and became acting motorcycle is obscur- of a held void flagmen for his tracks, pub- pru- art. un- in- Digests KEY-NUMBER, topic other cases see s.me Key-Numbered &wkey;?For in all and Indexes May *writ of error refused 1922. *2 ,(Tex. REPORTER
n 240 SOUTHWESTERN ly guilty ringing clear, way rods gates showing the bell of the locomotive 80 to be uncertainty. misdemeanor, reaching crossing. held void for of before (d) negligence running That there in was &wkey;cl3— must define law Statute 6. Criminal through city of Houston and and certainty act or denounced. omission with question rat,e across speed, street in a “at crime, the act to a In order constitute wit, per hour, to 35 miles dan- and certainty with such must be defined condemned that the citizen is gerous might to others who and and were in from able to know advance crossing be then and there said rail- what is act or omission the written which is persons using road track other and to made criminal. crossing said street and to cross and about its track and in ordinance Court, violation Appeal Coun- Harris from District city of Houston.” Judge. Ewing ty; Boyd, (e) negligence failing That there was in to 'against D. A. Walker Graham J. Suit proper maintain propelling power control over the and motive Judgment Agent, Plines, fendants, de- others. and of said train while appeals. Reversed and through city of Houston and over and rendered. and streets, especially ap- across its and while proaching and said Runnels appel- street. King John, Houston, for Woods, & (f) negligence failing, That there in was lant. discovering perilous position Mobley, after Streetman, Logue Andrews, & W. child, Houston, and his wife and to use Bradley, then Cook, all of Palmer and L. for the means at hand them and to warn avoid appellees. injuring them. (g) negligence failing That was in there by ap- PLEASANTS, is a J. This suit C. maintain the Runnels street against appellee pellant dam- recover signal give watchman or device or bell to ages resulting his wife from the death of warning of trains and when injuries personal child, him- and. it was safe to cross said railroad and unsafe alleged self, were track. negligent operation of a train on rail- (h) negligence placing That there was Beaumont, Sour Lake & Western road Railway Company, 'upon adjacent a switch track north of and then and there which was long to extending main line line box cars being operated the Director General of line from from eastward government, Railways for the United States thereby obstructing said agent government, appellee, as said main line track eastward said Congress having been, ter- the act any -person approaching railways minating government (41 control southerly direction on said street. original 456), de- .substituted Stat. negligence (i) running That was there fendant. operating train at time and said substance, alleges petition partially being place, it after sunset then driving July mo- on headlight having dark, on the without torcycle a sidecar in attached which was lighted. train locomotive said daughter were and infant his wife which seated, petition Paragraph YXI elaborates the Beau- mentioned, negligence duty grounds above the relative mont, Railroad & Western Lake Sour maintain lookout Houston, city street, Runnels signals give proper to maintain and to baby him- killed and were wife and power proper motor and to over the control negligence injured, reason of the self signal device at a watchman agents i).nd of the Director servants crossing. passenger were General who again Paragraph al- deals VIII railroad. train said following leged negligence and uses allegations contained language: petition are as follows: duly (a) authorized servants and That employés agents, officers, “That said charge employes charge operat- pngine were said and cars “carelessly negligently train running great at a the same rate wife, daugh- plaintiff and per hour, with the collided speed, wit, about 35 miles contrary ter, side car attached said rate and nances unlawful violence,” great Revised Code of Ordi- thereto, in violation force and City year of Houston for the consisted later details chapter being 1914, said section 1022 of 35 of specified. ordinances, and under said ordinances it (b) That there engineer for an is unlawful other lookout. maintain a and careful charge the same of Houston at train run or drive locomotive or (c) That there corporate city within the limits of the customary warning legal, give signals proper, and greater rate than 6 by blowing continual- the whistle and hour.” Digests topic Key-Numbered @=»For and KEY-NUMBER cases see same in all Indexes other Ttex.) v. HINES GRAHAM I.W.) (240 Í rectly plain- crossing; that, alleges: toward said paragraph further This regain tiff was able to the control of said mo- charge engineer loco- “That said torcycle, placed the same had been locomotive train did not motive and and train under the control that an where a collision with said *3 proper control, and unavoidable; was inevitable and ordinarily prudent man would collision, in a frantic effort turn- to avoid circumstances and could had under the have motorcycle right, ed to in and di- running same, en- of said and the control the going, in rection which said train too was great gine and excessive cars at such and to collision late avoid the therewith.” per hour, namely, speed, and about 35 miles negli- any signals, in such careless and by general without The defendant demur- answered manner, gent the acts in of violation unlawful and general denial, by special plea rer and and City of of Ordinances the Code contributory negligence on the out, Houston, said as above set and of engine )in plaintiff approaching railway running great at cars and train and crossing keeping without lookout a plaintiff speed upon said time and at came approaching heeding trains and without thereby great suddenness, place and with warnings given safety by great him and put the lives of whistle for his life and fear of him in child, train, by headlight that if he his said wife and bell on the do, anything did, have that would to or omitted train, necessary by noise made collision, omission or avoided the running train. great fear he was due to the about commission plea charges plaintiff further with by brought under, those said contributory negligence in not, law, train, in and he is said crossing rapid speed, a reckless rate of at and responsible therefor.” point reducing speed in not his con- and to safety require- setting with with sistent and out details of pleaded ments law. plaintiff follows: as “In this connection further al- this defendant plaintiff, approaching crossing “That the said question leges plaintiff on the occasion street, southerly on Runnels tion, main line motorcycle direc- immediately prior resulting and in the death of his wife and proaching accident approximately when within of said 45 feet daughter ap- crossing, speed reduced public per intersection of street hour, to 8 10 miles intend- city speed of a ing the railroad, of Houston the tracks steam to further motor- when at said namely, Beaumont, making crossing; Sour Lake cycle said operated Railroad, point then and there & Western a ing plaintiff about 40 feet from the main line cross- Hines, approach Director General of Rail- Walker D. first became aware of the roads, tracks passenger coming the railroad and such street crossed train from the of towards said eastward crossing grade, crossing. at and the view of the said train when part, just emerging plaintiff and obscured either first seen not, attempting placed make did to aforesaid box cars on said behind track, being not nearer than said switch and was then and there speed track, speed, wit, mo- reduce the at an excessive rate of to feet run speed motorcycle per hour, ex- about 35 miles the rate of the tor vehicle per hour, but continued at bell ing rung, locomotive of said train was not be- 6 miles on the ceed rapid in excess of 6 nor whistle been sounded and reckless had same applica- crossing, train, per hour, the said law for said came violation miles ble running puffing said excessive rate under the circumstances. warning speed, suddenly and without emerged in this connection came “Further gate plaintiff’s flagman alleges this ther 'at ei- view as it behind into there was no train, indication, cars; that said was no box reason there employés way gate, by flagman was clear servants and that the plaintiff company operating cross, same was then railroad give by safe to compli- any warning approach thereof, duty, obligation there reducing law, to not of the defendant reason with the ance greater a watchman stationed at said a distance hour at have than 6 give warning approach track, and, crossing said had from the 30 feet less than suddenly unexpected- easily so, came avoided thus he could be done ly point when he was at a into the unfortunate accident have avoided would which approximately causing occurred, from the wife 40 feet the death of his thereby aforesaid, causing daughter.” to become and little safety alarmed for the of himself child, excited and and was submitted cause safety wife who acting upon below'upon special riding him; that, The issues issues. court submitted were impulse tuated by which the ing the moment and and ac- influenced there- and the answers fear and excitement occasioned pre- questions relevant to which peril and imminent of sudden appeal follows : are as sented rapidly near of said mov- employés of “Special Did the No. 1: suddenly placed in, plaintiff issue made charge the locomotive apply defendant occasion approaching brakes motor- effort to on the an exercise cycle, but in the moment excitement and ter- keep applying Runnels ror, brakes, as he in- instead persons and about do, applied accelerator, -for lookout instead the tended to crossing? answer will You thereby giving enter increase of you according not,’ ‘They propelled ‘They did gas, di- did’ or which caused same to be 240 SOUTHWESTERN REPORTER rqay command, find the facts to he.” the use of To the means at his “They answered: not..” avoided or did the collision? You answer ‘Yes’ will “Special you ‘No,’according you may issue If No. 2: have answered find facts to preceding special affirmative, the you issue in the be.” To which the answered: “No.” “Special issue; but, you ordinarily need not answer this issue No. 15: Would an you prudent negative, have answered same in the will under the same or cir- similar approached state: Was as in- the failure exercise cumstances have quired about, you of the col- the cause where believe the first lision? not,’ the approach- You will answer ‘It was’ or ‘it was became aware of and discovered the you find the facts to be.” To which train at the rate of the man- plaintiff? “It answered: was not.” ner as did the You answer ‘Yes’ will “Special you ‘No,’ No. in or 5: Was the locomotive find the To facts to be.” *4 question, approached jury as it the Runnels street answered: “Yes.” operated crossing, speed “Special plaintiff, aat in excess issue No. 16: Did the per crossing, of 6 miles hour at the time of collision? Runnels street discover not,’ approach will time, You cording answer ‘It was’ or ‘It was ac- the of the train in exer- you may ordinary as find the facts to be.” To cise the use of the means jury which the answered: “It was.” at his command to avoided the have collision? “Special you not,’ issue No. 6: If will have answered You answer ‘He did’ or ‘He did ac- foregoing special cording you affirmative, issue in the as the facts to be.” To which find only, you jury that event will answer this the answered: did.” .“He operation “Special plaintiff, issue: Was the of the locomo- issue Did No. 17: after per hour, approach train, tive in excess of operated, if 6 miles it was so he discovered the of the exer- proximate degree care, cause of the collision? cise the use of the means not,’ command, You will answer ‘It was’ or ‘It was ac- to have avoided the collision you may cording person ordinary prudence as To find facts be.” which a have would jury which the answered: “It was.” used under same or similar circum- “Special issue No. 10: Was the railroad You will answer Tie ‘He did’ or did stances? crossing the occasion in not,’ according you at Runnels street at the time as find facts be.” To question, jury under all the facts and which the answered: “He did.” circumstances, special “Special plaintiff, one of and unusual dan- issue No. Did J. 17%: ger persons traveling using Graham, over it while when he A. became aware and dis- approach You Runnels street? was will answer ‘It was’ or ‘It covered the of the become so not,’ may according you freightened capable spect as find the facts as him in- terrorized to render jury prudent to be.” To which the answered: “It was.” of rational and action re- you safety “Special family? If issue No. 11: have answered his own and that of his special affirmative, you may ‘No,’ issue No. 10 in the and in ‘Yes’ as You will answer or find you only, spe- jury event will that cial train over then answer facts to To which be.” answered: engaged operating issue: Would one a “Yes.” “Special you street under the If issue No. 18: have answered Runnels you, you ‘Yes,’ facts before ex- circumstances issue No. Was such then will answer: 17% ordinary any you terror, care as that has been ercise term or if you, found, proximately heretofore defined to maintained signal you watchman or said or other device at or about if the negligent? have found the defendant answer ‘Yes’ crossing particular ‘No,’ at the time of ac- You will ac- give warning cording you may cident in approaching as find the facts to be.” To jury trains? You will answer ‘Yes’ or answered: “Yes.” which the you may ‘No,’according you “Special as find facts to be.” issue 19: If No. have answered jury special ‘Yes,’ To answered: “Yes.” which the issue No. 18 and in that event you “Special you only, issue 12: If have answered then No. will answer: Was such special affirmative, part, existed, reasonably issue No. in the and in on his if or terror you spe- justified only, circumstances; is, that event will then answer this ordinary foresight pru- Was the cial issue: failure would watchman, signal, similarly fright- or other maintain a device to at or about Runnels ticular time dence ened situated have become par- terrorized? You will answer ‘Yes’or question proxi- ‘No,’ you of the accident in find the facts as to be.” To which the cause, jury as term has been mate defined, was’ or ‘It was the heretofore “Yes.” answered: “Special will of the collision? You answer ‘It issue No. 20: Was the view of said not,’ according you may as find either obstructed as jury you? facts be.” To which the answered: have been those terms will answer defined to You according you ‘No,’ “It was.” ‘Yes’ as “Special plaintiff, jury 13: Was issue No. the facts be.” To which find approached crossing in he the railroad “Yes.” time answ’ered: greater question, “Special at a issue Did No. 21: be- per attempting than 18 miles hour? You will an- make said fore and at not,’ according ‘He was’ or ‘He was swer as not nearer some than 30‘ feet of said you find the facts to be.” To which reduce main line track 6 miles ‘No,’ “He was not.” answered: hour or less? You will answer ‘Yes’ or “Special according you may find the issue No. Did as facts J. A. to be.” 14%.: any Graham, of warning from answered: receive To which the “No.” source approach “Special approached 22: of the train as issue No. Was failure to so cause of on Runnels street before he the colli- reach- you ‘No,’ ‘Yes’ You will answer ed the where believe he first became sion? accord- you may find the facts discovered the aware and be.” To time, exercise of answered: “Yes.” in the fendant ings a any recovery. court, did the ing terrorized, the occasion fact to under all family, tacked ant: did.” if ing not ant: train was which have bestowed entered which jury ant: the crossing a reasonable swer 'He did’ if the the lost answer find? To into consideration 800.» stowed cident if pensation if A. ments of red and his amount.” To which the aas direct any, of cause of attention, anguish 3500; (e) ed, Tex.) None of the “Special “Special “Special Appellant presents “Special After the return “Special “Special paid now, paid now, paid now, error. respect any, money hot,’ Graham, jury wife jury he occasion trains in accident value not,’ because of lost time from his value (a) answered: received (a) (a) first his might past in his any. be.” To which upon by stating with to have been Did the answered: answered: expended in question? Was or was the circumstances Did the damages, which issue No. to the rate issue No. issue No. daughter, wife, motion of the issue No. 25: What sum of of the loss you render result such sum or sums question? assignment court you question, on the occasion in would would would in -well make the and plaintiff physical suffering; future, You will child, respect he has plaintiff during the by him; order or ‘He did injuries find the facts question, findings appellant. “$8,000.” find the Eva plaintiff No. 24: direct No. 23: granting exclusively injuries alleged the amount.” loss of for the funeral be compensate and no others: compensate “He “He jury 3(a) 1(a) 2(a) requested Answer ‘He Katherine if plaintiff her to expended favor Graham, from not exercise with Answer received result of the any danger exceeding answer of complains fair and (b) this verdict determine injuries by fact to be.” To at the instant he lookout for did.” answered: exercise What minority, What not,’ as requested requested sum as he has jury defendant, the aid the the medical prior you respect the motion such sum sums he two denying plaintiff not.” plaintiff negligent from the date ordinary answered: he was would to himself ‘He the in question, the aid or benefits date of the ac- Graham, answered: approached be.” find? You sum of by stating <sum by plaintiff, if his favor and adequate to his becom- To which the following ordinary for this money safety? assignments work, was’ or ‘He you incurred any, expenses whether plaintiff of the rul- plaintiff if did’ him reeeiv-" or benefits to (a) “$1,000.” by GRAHAM v. HINES injuries, approach- of To the trial use any find the entered and that keeping surgical defend- defend- defend- care proven, money, *5 money, at the Mental money, refusing if taking would incur- which as he “$2,- com- care item first “He any, An- ‘He will you (240 S.WJ ele- de- be- of be- at- on on J. if . he became mitted the he dinary prudence to avoid the collision. was in ercise the to have avoided that he received no locomotive proper defendant’s that crossing, the collision injuries complained to his excessive was further about to second issues submitted to them employés 599. enth, such of the collision with about watchman that reconcile if Jordan and sufficiency the jury flicts reasonably reconciled, Strohmeir sustained. The set considered in the In In answer In answer to Having No an approaching the ordinary the pleadings approaching court in jury. out, that acting as an plaintiff, they response We the locomotive was and question unlawful to enter answers discovering ordinary care, lookout for findings can discovered pleadings incapable enter these find as we the motion of of apparent rate all stand Morgan (Tex. think thus degree in favor in his favor so was twelfth of the négligent warning discovered negligence, questions the interpreting in which negligent frightened that after thereon not negligent findings disappear, reasonably is the circumstances of the was not the determined the upon each the collision issues of the train he could interpret defendant Civ. find, light the next speed, raised evidence, any seeming ordinarily and evidence. Krenz v. of rational evidence conflicts questions, crossing. unchallenged. persons approaching of in his fifth, sixth, care of a of its time he assignment in App.) avoided submitted to jury plaintiff approaching approaching numbered speed, in jury proximate Civ. and plaintiff approaching trains, the issues by appellee plaintiff' effect, them, required done in the approach in time three issues it is in operated proximate to up 177 W. to sustain App.) jury prudent person approached that his terrorized that answers above set petition. and that the verdict charge warn, person the have, by received issues as to to the the exercise tenth, omission of S. that to discovered he did ex- to have -defendant should or can be then to render jury .answers, first raised cause but find the train he train he prudent them to persons duty keep a and 17 of the at of or- When cause when prior time elev- light find n 178; that sub- find out, con and any an be - REPORTER 240 SOUTHWESTERN
family
prior
when
ings,
parent
fendant,
tered a
all
der
the
his mind
because
negligence
ing
think
miles an
incapable
ings
rorized as to render
submitted to
result
mately
juries.
dence.
the
negligence
negligence
fendant
gence
sidered
such
of
the
a railroad
his vehicle
caused
teenth
ordinary
that such
avoided the collision after
cising
action
approach
ordinary
them,
crossing
discovered
nearer
his
was
contradictory
cumstances
only
sion,
[3]
In answer
[2] We
the care he was
answers
speed,
railroad,
complained
the circumstances. This
findings is,
collision
not
it can
a state
twenty-second questions
that
person
to the time
the
As
considered
he was
of the defendant
the care
proximate
from the
finding
conflict with
him to
than 30 feet
reasonably
is a
was obstructed in the
hour was a
before
defendant’s
by
which answers
cannot
statute
and that such
on the
the
required
connection with the
do
only
the
reasonably
requiring
reference to
sound
them at
care in the circumstances.
exercising ordinary
to the
the train
6 miles an
become
and that
negligence of the defendant
necessary
approaching
stated,
fright
mean that
found,
we
negligence
and terror
find that
irreconcilable,
be
avoid the
which he
cause
fact,
proximately contributed to
part
by
think these
construed
and well-settled
capable
became terrorized
think, clearly
construed
negligence. The seven
him
and terror
proximate cause of the
twentieth,
respect
reduce his
so
none
negligence of the de- acts or omissions which occur
that
calculated
the time he first en and other cases
his failure
light
finding
by
was under
hour at a
frightened and ter
failure on
for his
foresight
avoiding
incapable of
are that
terror in the mind
request of
*6
he discovered the
did
terror
the view
collision
plaintiff did use
of these
received
the
he was
train,
he could
to himself
construction of the
as a
main
exercising
collision.
not so reduce
special
submitted
guilty
further
for
findings are
produced
all
twenty-first,
exercise
purview
safety,
findings
speed to 6
defendant,
reasonable
when
finding by ordinary
care, but,
shown
exercised
is
principle
the find
alter
the
produce capable
he
exercis
rate of matter of
his in
comply
by
issues
proxi-
negli-
exer
colli- of
have been done.”
was,
find
pru- question
con
can required
cir-
un of the
de
ap
we
by
he
of in
jury,
is
as there stated has been
Railway
33 S. W.
he could
and
to 6 miles an
Union Assur. Co. Gulf
565;
Civ.
such
capable
and followed
statute,
could
statute
than 30
Negligence,
is not
Civ.
Byrd (Tex.
gence
prudence.
state of
applied are
charged
his
would not have
under these
peril
our
ligent
Co.
opinion
thorities
he must-
no fault
no
cause
suffers
negligence,
(Tex.
ence of
“When
We
This rule was
Since
[5]
responsible,
obvious.
both civil
the terror
person
v.
action
154
plaintiff guilty
no
Supreme
App.)
Co. Muske
We
Yellow
App.) 54
are not
a state of mind
was, through
responsible, and
Neff,
Civ.
thinx
many
only theory
act of the
mind
the'decision in
requiring
adopt perilous
circumstances.
S. W.
v.
of a
who
another,
sustaining
of his
558;
for
consequence,
feet
for the reason that
App.) 168
&wkey;sFor