119 S.W.2d 714 | Tex. App. | 1938
This appeal was by writ of error but the parties will be referred to as appellants and appellee. It was perfected to the San Antonio Court of Civil Appeals and transferred to this court by orders of the Supreme Court. The action was by appellants, Conrad Haney and his father, J. S. Haney, against appellee for damages suffered by Conrad Haney in a collision between appellee's train and a truck in which he was riding, on the 3rd day of December, 1933, near the town of Edinburg, Hidalgo County. The truck was being driven at the time of the collision by Vollie Adair, and Conrad Haney was riding in the truck and, as found by the jury he was not on "a joint adventure". Conrad's damages were assessed by the jury at $8,000, and no damages were awarded in favor of J. S. Haney. Several acts of negligence were found in favor of plaintiff and against the defendant but judgment was entered in defendant's favor on the answers to the following questions answered as indicated:
To which the jury answered "No".
To which the jury answered "Yes".
To which the jury answered "Yes".
It is our conclusion that an irreconcilable conflict exists between the answers to questions Nos. 16, 17, and 17-A and the answers to the following questions:
To which the jury answered "Yes".
To which the jury answered "No".
The jury also found by its answer to question 15 that Vollie Adair did not fail to keep a proper lookout for the crossing.
The only possible way, under the evidence in this case, by which appellant could have discovered appellee's train, as the truck approached the crossing, was by keeping "a proper lookout". By answers to questions 14 and 14-A, the jury found that appellant failed to keep a proper lookout, but that such failure was not negligence. A finding that he was not guilty of negligence in failing to keep "a proper lookout" conflicts with the finding that he was guilty of negligence in failing to discover the approach of the train.
The jury's finding that Conrad Haney was not guilty of negligence in failing to keep a proper lookout for the crossing was very probably based on a belief that Haney did not know that the truck in which he was riding was approaching a railroad crossing. He so testified. He had been riding in the truck for many hours on a trip of several hundred miles. He had been along that road and over the crossing in question only twice before. The *716
accident occurred in the night time and a heavy fog prevailed. He was not driving the truck. Now, if Haney was justifiably ignorant of the fact that the truck was approaching a railroad crossing, then he could not have been negligent in failing to discover the approach of the train. A traveler unfamiliar with a locality and excusably ignorant that he is approaching a crossing is under no duty of keeping a lookout for trains. 35 Texas Jur. Sec. 335a, page 508; Texas P. Ry. Co. v. Chapman,
The issues in this case have given us grave concern. Our judgment, previously entered without written opinion, affirming the judgment of the lower court is withdrawn, and now, for the reason stated herein, the judgment of the lower court against Conrad Haney is reversed and the cause remanded for a new trial; the judgment of the lower court against J. S. Haney is affirmed.