*1 T. RY. CO. et al. ST. LOUIS, S. F. HOUZE.
No. 3408. Appeals Texas. Amarillo. Civil April 30, 1930.
Rehearing June Denied *2 drove his automobile onto the cross-
husband
ing
a
and was killed
the train as
result
maintaining
negligence
dangerous
con-
said
dition.
a
alleges
negligence,
further
she
As
acts
being operated
ex-
train
at an
that the
cessive rate
speed;
that deceased’s view
crossing and
was obscured
bushes,
weeds,
etc.;
track
was con-
ob-
a
cut
structed on
curve and in a
deceased;
scured the view of the
tain
so constructed
that cer-
Quanah
buildings
were
in the town of
background,
to form
as
a dark
ap-
making it difficult
see
train as it
proached
operatives
crossing;
said
keep
approach-
persons
failed to
ing
lookout for
alleged
crossing,
and further
peril
servants of the
discovered
prevented
ac-
of
cident if
deceased
time to have
properly
at
used the means
command;
failed
their
to blow the whistle and
that the defendants
ring
the bell for
answered, alleging,
in sub-
defendants
carefully operated
stance, that
train was
by competent servants;
the whistle
law;
required
rung
blown and the bell
that
perilous
discovering
after
deceased’s
position, all
of said
means
the command
accident;
avert
servants were
that there were no
used
weeds, bushes, or
trees
the view and
obstruct
would interfere with
cut
curve
ability
see
proaching train,
failed
but that
deceased
going on
exercise
care
look
injuries complained
track;
proximate result
de-
were the direct
contributory negligence;
ceased’s
ceased
lived
had crossed it
the schedules
crossing,
knew the condition of
sight
mile of
within a
long
daily
knew
for a
while and
of its trains.
upon spe-
submitted
resulted in
The case was
to a
against
cial issues and
alone,
Quanah,
Railway
&
Acme Pacific
Hamilton, Matador,
E.
G.
Y.
and C.
judgment
en-
based
the verdict was
and
tered
Welch,
appellants.
Quanah,
$9,500
appellee’s
reason
favor for
husband, for
$419.90
of the death of
Gossett,
Berry, Stokes, Warlick &
of Ver-
expenses,
with interest thereon
funeral
appellee.
non, for
damages
3, 1928,
$410
au-
October
tomobile.
HALL, C. J.
special issues,
response
appellee,
Mrs.
sued
the St.
substance,
Railway
found,
Louis,
pany
way
follows:
Com-
Francisco Texas
San
Quanah,
& Pacific Rail-
Acme
guilty
(1)
of con-
That P. E.
damages
Company
recover
tributory
rail-
$24,000for the death of her
track.
road
injuries
automobile,
damages
to an
(2)
That
condition which
defend-
expenses,
funeral
as the
which dam-
$419.90
crossing at
maintained
time
ants
the death
alleges
ages
resulted
from accident
she
of Houze constituted
highway
at a
her husband
killed
which
crossing
Quanah
(3)
from collision
That
near
passenger
dám-
death of Houze
trains on the 3d
one
alleges
October,
ages
day
the automobile.
She
(4)
traveling
blow
condition for the use of the
cross- public,
whistle within such distance
ing
but notice
defective condition
complain-
in such manner
Houze rea-
such road is not
unless the
*3
approach
ing party
penalty
sonable notice of the
of the train.
seeks to
recover the
per
provided by
week
such article.
(5)
the whistle
That such failure to blow
negligence.
said,
constituted
In
will
addition what has been
we
reasonably appears
state that it
ord
tual
rec-
from the
(6)
proximate
awas
such
.That
appellants
ac-
had
officials
in-
Houze and of the
the death .of
crossing at
notice
the condition of the
juries to the car.
the time of the accident.
(7)
and did
did not see
That the
language
“Do
The
issue No.
when,
1 is:
peril Houze in time
not discover the
you
light of
find from the"evidence and in the
power,
by
every
the use of
means within
attending
was,
P.
circumstances that
E.
safety
train, the
consistent with
of the
driving upon
track, guilty
railroad
accident could have been avoided.
contributory negligence^
has
as that term
operatives
(8)
of the train failed to
The
you?”
been defined to
from
blow the whistle 80 rods
(9)
By proposition
That such failure was
asking
the dam-
and of
contend that
the
they
cause of the death of Houze
court erred
light
jury
tending circumstances,”
ages
whether
“in
of at
to the ear.
found
it authorized
(10)
$9,BOO, paid now,
That
be fair
go
outside of
the evidence
con
con
compensation
ry
pecunia-
attending
sider all
circumstances.
This
loss sustained
her in
the death of
para
tention is without merit.
In the first
husband.
graph
charge,
of the
shall
the court said: “I
(11)
auto-
That cash
value of the
market
you
questions
you
ask
an
certain
will
immediately
mobile
$450.
before the accident
you may
swer as best
from the evidence
from
heard on the trial of the case and
(12) That
reasonable
its
market value
cash
* * *
.
question
that alone.
Answer each
$40.
after was
having regard solely to
of mat
the truth
(13)
That
reasonable
fun-
inquired
amount of the
nearly
ter therein
about
may
eral
was $419.90.
be able to ascertain it
the evidence
from
charge
admitted on the trial of
(14)
operatives
case and from
this
that alone.”
engine sang
point
the bell
rods
at a
crossing
kept
ringing
until
al.,
bell
In
the case Walcott
Brander
v.
et
crossing
charged
was reached.
jury:
the court
“That
may
proved by circumstances,
fraud
that
be
is contended
must
look
therefore
to all the cir-
permit
was error for the court to
it
refuse
cumstances connected with the transaction.”
prove,
plain
them to
on cross-examination
urged
The same
here
was made to
tiff,
knew
condi
that she and deceased
charge in
the
commonsense
they
that case.
said: “The
The court
crossing
while,
tion of
never
all the
but
meaning
language
is that
any complaint
de
made
to either
proof,
are to look to the
circumstances
its
or commissioners’ court about
fendants
by juror, of
and it would be so understood
condition.
ordinary understanding.
It would be a forced
Statutes,
6320,provides
Bevised
article
construction,
say
and strained
author
right
a railroad has the
to construct its line
go
testimony,
ized them to
outside of the
highway,
of road across a
and that such cor
proof;
look to circumstances not in
and to
poration
highway
shall restore the
to its for
ground,
claim a
to ask this
on such a
reversal
would be
such state as not
unneces
mer state
sarily
Court,
merely possible
as it was
impair
usefulness,
keep
and shall
very stupid
man
have misunder
repair.
crossing
duty imposed
The
Judge,
ought
stood the
therefore
this
requires
this article
the statute
such cor presume
misunderstood,
that he had been so
poration to take notice of the condition of
charge,
judgment.
in his
and reverse the
crossings
such
as to
and to
informed
times
very
rule
correct
reverse.” Texas & N.
Galveston,
therein.
defects
& S.
H.
Ry.
O.
v. Diaz
tion, insists that verdict lant made no jury Jones, Goldstein, Grambling, Hardie & being excessive, failure Paso, appellant. El mental an exclude elements of court to Vowell, Paso, appellee. Yowell El ap guish, sorrow, etc., is available to pellant. passed This contention was supra, Case, identical Gant in which the the question WALTHALL, J. Key, disposed by Judge who brought personal injuries This ais suit for in an instruction could such an error by George Mattingly, minor, by though regarded harmless, his next defendant be made friend, against Mattingly, complaint Mrs. John Marie ex Cocke, appellant. cessive. by appellee None of the cases cited July 31, 1929, George Mattingly On urged point upon motion. matters in the riding motorcycle street, his north Piedras on Wyoming Appellee at or near its intersection with the correctness does city Paso, Tex., pointed street, holding El his our other errors motorcycle original opinion, and, with an while the came collision automo- out Cocke, bile, by accompanied entirely Mrs. driven John raised free is defendant, Cocke, doubt, John motion. we overrule the going ly street, south Piedras and "wassevere- on injured. petition alleges plain- demolished, motorcycle completely tiff’s damage; stating compelled thei he was pay hospital bills, charge, to doctor’s an ambulance stating each; bills, items of pain physical and mental he suffered —all v. MATTINGLY. damage COCKE stated. No. 2427. a number of While the court submitted negligent act Appeals Texas. El Paso. of Civil submitted, assigned by May22, 1930. complains, which defendant series of issues submitted. The issue reads: *7 May 29, Rehearing Denied “Question pre- find from a 3: Do
ponderance of evidence that the fact that give the automobile did driver way motorcycle right of to the rider of the injury com- plained answered, issue the of?” To the “Yes.” excepted issue, The defendant ground made the basis of his contention pleading upon that there is no which here is charge. “plaintiff’s to base such any pleading fails to set out traffic code or any contents of traffic code which Question founded, No. 3 could be any constituting facts a viola- fails to set out traffic code tion founded.” No. 3 could be petition might only part of the alleging “the driver of considered as be the right automobile did not motorcycle,”,is as follows: rider of the says “Plaintiff north that he street, exercising due care for on Piedras others, had no himself and warning opportunity to avoid the collision automobile.” with the defendant’s Then follows: