Smith v. Texas & Pacific Railway Co.

186 S.W.2d 232 | Tex. | 1945

This cause is a companion case to that of Atchison v. Texas Pacific Railway Company this day decided by this court. (This volume 466, 185 S.W.2d 228.)

It is an action by the petitioner, Edgar Smith, against the respondent, Texas Pacific Railway Company, to recover damages for injuries sustained by his wife, Mrs. Elva Smith, when the automobile she was driving collided with that of a third party upon a highway adjacent to respondent's railroad while the highway was enveloped in smoke from a grass fire alleged to have been negligently started by respondent on its right of way. The trial was before the court without a jury and judgment was rendered for petitioner in the sum of $1,497.50. The Court of Civil Appeals reversed such judgment and rendered one for the railway company. 183 S.W.2d 182.

This cause and the Atchison case are substantially the same. They both arose from the same collision. In all material aspects the pleadings, the evidence and the findings of the trial court are identical in both cases. The same questions are presented in both cases and our conclusions and holdings in the Atchison cases are controlling herein. We therefore adopt the opinion of the Atchison case for our disposition of this case.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion adopted by the Supreme Court March 14, 1945.

Rehearing overruled April 11, 1945.