161 S.W.2d 71 | Tex. | 1942
This case was born of stark tragedy. On the night of November 16, 1935, Emil J. McMahan and his friend, Carroll Jeffrey, were on their way to a dance in an automobile driven by the latter. Suddenly, as they neared the town of Mathis, the automobile ran into a train then being operated by the defendant on a switch track across the highway. Jeffrey was dead. McMahan, unconscious, was taken to a hospital, whence he emerged weeks later a wreck of a man. Is the railroad company, by reason of the physical aspects of the crossing and because of its failure to give special warning of the train's presence thereon, liable to McMahan in damages for his injuries? Basing his judgment on jury findings the trial court said "Yes." The Court of Civil Appeals said "No."
The jury's findings were (1) that the conditions surrounding the crossing were such as to render it more than ordinarily dangerous as a nighttime crossing; (2) that defendant failed to have the crossing lighted at the time of the collision, (3) that such failure was negligence, which (4) was a proximate cause of plaintiff's injuries; (5) that defendant had no flagman with a lantern at the crossing at the time of the collision, (6) that such omission was negligence, which (7) was a proximate cause of plaintiff's injuries; (8) that defendant had no warning or signal light in operation at the crossing at the time of the collision, (9) that such failure was negligence, which (10) was a proximate cause of plaintiff's injuries.
All the authorities seem to recognize that some such precautions as those outlined in special issues Nos. 2, 5 and 8, supra, are required of a railway company when a crossing is more than ordinarily dangerous for nighttime travelers. Because a crossing is more than ordinarily dangerous more than ordinary measures must be taken to apprise one approaching it on an intersecting highway that such dangers exist. See Missouri, K.
T. Ry. Co. v. Long (Com. App.),
The crossing in question was made by a switch track extending from defendant's line across state highway No. 12 to the line of the S.A.U. G., at the town of Mathis. As plaintiff and Jeffrey approached it on highway 12, the switch track was to their left and extended on to their right after it intersected said highway. Plaintiff's counsel asked him, "Did you or not see any train, engine or evidence of a train or part of a train, before you struck it?" To this plaintiff answered, "we noticed a train over on our left." Further questioned by his own counsel, plaintiff testified that they were about 100 yards from the crossing when they saw this train, that his attention was attracted to the engine because of the fire under its tender and because its headlight was "butted up against a boxcar or something"; that he then spoke to Jeffrey about it saying, "I just told him that there was a train out there and he'd better kind of watch out. I didn't know but what the train might be out on the switch" and that the speed of their automobile then "slowed up," doubtless indicating that Jeffrey understood and saw what plaintiff saw. Plaintiff further testified that he had lived at Tynan, seven miles from the scene of the collision, since he was seven years old, that the switch track had been there all the time, and that he had traveled over the road and the crossing at intervals before and had traveled it with Jeffrey prior to the night of the tragedy. Jeffrey's father testified he had lived at Tynan 13 years. Presumably, therefore, Jeffrey knew about the switch track and its location with respect to highway No. 12.
Assuming, then, that the crossing was more than ordinarily dangerous for nighttime use by travelers on the highway because of its being in a slight depression and because of the lights of the town of Mathis beyond and because of other facts, still the defendant's omissions in failing to warn of the presence of a train thereon could not be a proximate cause of plaintiff's injuries sustained in running into the train because, under *630 the testimony of plaintiff himself, both he and Jeffrey already otherwise knew either that it was there or that it might be there, from information they had gained a hundred yards away while driving about 25 miles an hour on a highway, which for 860 feet back from the crossing was straight, and in a car which, plaintiff said, could not run more than about 31 or 32 miles an hour.
Since there was a straight view down the road for 860 feet the fact that there was a signboard on the right side of the highway which partially obstructed the view of the switch track to the right would be immaterial, since plaintiff and Jeffrey had already seen the train, which, it later developed, was then occupying the crossing both to the right and left sides of the highway. Moreover, the signboard would be but one circumstance tending to render the crossing extra hazardous, which, as we have seen, makes no difference under the facts of the case. Nor would the amount of travel on the highway make any difference. And the same may be said as to the effect produced by the lights of the town of Mathis beyond the switch track.
We think Texas N.O.R. Co. v. Stratton (Civ. App.),
We think the authorities relied upon by the plaintiff are clearly distinguishable. For example, in Missouri, K. T. Co. v. Long, supra, there was no evidence that Long or any of his fellow passengers had any knowledge of the proximity of any train before they collided with it. The same is true in Gulf, C. S.F. Ry. Co. v. Picard (Civ. App.),
Our conclusion is based on what the plaintiff himself testified. We must assume, therefore, that the record would be no different in that regard were a new trial ordered. We think that brings this case squarely within the rule announced in Winiger v. Ft. Worth D.C. Ry. Co.,
It follows from what we have said that we agree with the conclusions reached by the Court of Civil Appeals. Hence, its judgment reversing the judgment of the trial court and rendering the same for the defendant is affirmed.
Opinion adopted by the Supreme Court March 25, 1942.
Rehearing overruled April 22, 1942.