*1 objections filed longed. As no days com- ten after
Judge within Giles award, Judge Giles
missioners filed their final
accepted commissioners’ award as Art. accordingly. entered an order obvious, 3266, It un- is subd. V.A.C.S. 7, us, appellants
der the before record prosecution their
preferred undertake appeal County Law No. Court at holding knowingly risked adverse appellee’s question presented
on judgment. Under summary
motion for No. believe cause circumstances we County 2 was
188-B in at Law No. Court points
properly Appellants’ dismissed.
appeal are overruled. af- of the trial court judgment
firmed. LOUIS, RAILWAY SOUTHWESTERN
ST. TEXAS, Appellant, COMPANY OF
v. al., Appellees.
David DUFFY et 15223.
No. Appeals of Civil of Texas.
Court
Dallas.
May 17, 1957. Rehearing Appellant’s Nov. 1957.
On
Rehearing Dec. Denied *3 Touchstone, Dallas, Clyde
O. O. W. Roy Cosper, Tyler, ap- Fiddes and P. for pellant.
Turner, White, Atwood, McLane & Fran- cis Dallas, and McElroy, B. Thomas for appellees.
YOUNG, Justice. Duffy, minor, age David by a father friend, Duffy Martin as next and the latter individually, against filed this suit defend- ant Railway Company damages arising for personal injuries David, by suffered doctors, hospital also for medical ex- pense allegedly incurred the father as a result thereof. Basis of the action was an automobile standing collision February defendant on 16, 1955, by a 1941 Chevrolet automobile Duffy which David a passenger, operated Hoff, at the Irving time A. age Upon trial jury verdict, judg- ments Duffy were rendered for Martin $1,500 in the $50,000 sum plain- son; tiff’s subject which rendition appeal. of this place of accident attendant cir- physical otherwise, cumstances, both detailed; later but first to will be be stated jury summary, answers are the sufficiently reflect the material issues raised pleadings respective parties hour; speed per (28) 50 miles primarily con- excess of testimony (defendant however, upon driving as of the automobile with the record tending, lights (29) but peremptory negligence; in- dimmed was was entitled to whole it proximate such negligence surround- not the sole struction) (1) : That conditions collision; plain- question cause of failure of crossing in railroad ing the ordinarily tiff David warn the than driver render it more such as to crossing during danger dimmed driving nighttime dangerous was not said negligence; should failure of defendant switching operations; (2) passenger-plaintiff more driver to warn the known such approach nighttime ordinarily to the dangerous as than *4 plaintiff’s operations; (3) negligence; not to (34) failure during switching crossing request speed there reduce of signal device the driver to the a failure to have the question prior to collision approached the installed his automobile as he the cross- ing (36) was of negligence; failure was not failure and such negligence; (4) was collision; plaintiff (5) apprise and the driv- such to notice the proximate cause of a presence during of cross- or fuses er the on the throw flares to failure ques- ing negligence; (38) was night not failure operations on the switching proximate Hoff Irving apply a driver his brakes (6) A. negligence and was tion cause; negli- flagman at the time to avoid the collision was a (7) to have failure operations gence; (39) such not the on but failure was during crossing thereof; proximate (40) that negligence and sole cause question was night in the collision; un- (9) was not the of an the collision result proximate cause (8) a accident; Hoff, (41) $1,500 that would driver, on such Irving A. avoidable the that Duffy compensate plaintiff Martin for automobile at operate his occasion failed necessary hospital and and doc- reasonable speed was reasonable that a rate of bills; $50,000 (42) was that the sum of such failure tors (10) but prudent; that compensate minor reasonably colli- proximate would cause not the sole ap- pain, physical suf- sion; Duffy failed to David mental Irving A. Hoff (11) capacity fering was too close and loss of to work until ply his brakes train; money. failure was such earn (12) that but such proximate cause; (13) the sole
not driving of said Chevrolet collision occurred a automobile at railroad cross- ing in negligence; tires not north Dallas (15) County with worn was where Belt Line Road, public Irving a Highway, A. Hoff drove his at vehicle a crosses the tracks speed which rate of was defendant Railroad at grade; excessive and the cross- dangerous; (16) ing being such manner south of incorporated driv- mu- negligence; nicipality Addison, ing (17) was but that such small village or was negligence proximate the sole town. Line not Belt Road runs almost due accident; (18) west, Irving cause of the east and A. Hoff defendant’s tracks keep lookout; proper right angles; failed to the railroad (19) that running north proximate such failure was and south Addison not the sole with immediately north cause; (20) Irving A. Hoff and Dallas failed to to the south. proper Addison, railway, have the 1941 Chevrolet under At defendant’s con- Dallas ; branch, (21) trol such failure was intersects with negligence; its Fort Worth- proximate cause; but was Texarkana line railroad sole a Yin connec- Hoff, driver, (23) that negligently tion. Belt Line Road fail- is a asphalt two-lane wide, apply highway, ed to his brakes in 24 with time feet avoid 10-foot grav- collision; (24) shoulders, negligence such generally not the eled embraces Dal- cause; County. proximate Hoff, appellant sole las points .out, the driv- As there er, operating angles was not are no Chevrolet at a curves or on either highway
206 Vickery. proposed trip A Hoff Lewis- record. in this track involved or railroad ville, type County, 14.4 Denton a new see grade decline in slight elevation rink, cross- both four-door approaches leaving Hoff’s 1941 as one feet evident car, Line, proceeding Line beginning Chevrolet to Belt Road on Belt from the east feet; Road, via Preston at an a mile intersection 1,500 and defendant’s at a distance of crossing as and a half depict east of involved railroad exhibits moonless, some but Line east on viewed away. clear, is a cold no weather conditions that There feet visibility driving warning sign erected interfere on standard railroad highway on Commission or rain. As Highway Texas mistiness —such they approached Addison, according east of highway 489 feet right of such Duffy, statutory crossarm on Hoff car were crossing; grade also side, good, low beam good, brakes warning sign or south no at left way. Addi- highway. traffic on the present right Both on defendant’s knew there, north Road, having public highway, traveled son of Belt Line east looking feet before. testified to intersects Belt Line Road 150 *5 running straight Road, they crossing, ahead as along Inwood went at per hour, Line Dallas, accident, 50 miles intersects describing north “Well, viz.: as we neared crossing, 85 feet west of the some passed, as we I noticed sign I 318, destina- No. was involved train glanced to see ahead if I could notice a Dal- County, leaving Commerce, Hunt train or anything. tion The sign told me—it engineer, P.M., crew say at las 7:55 didn’t anything about a train. brake- conductor, rear head and fireman, looking to if I see could anything; see it approximately Addison at men, arriving seemed to me that just road went connection place the P.M., at which straight ahead, 8:30 straight ahead and then all 18, the train No. Worth Fort occurs of a sudden in about two or three seconds interchange of an stopping for trains two before it, we hit there big was a wall 'and consisting night, train 318 each cars freight (that) there was it.” To be noted is here locomotives, some Aleo diesel stipulation two parties between Hoff, night On the caboose. and a freight cars driver of car in plaintiff was a al- train Fort Worth question passenger, had testified deposition that up to the 318 drew train ready injuries there when because of suffered at time of the prepara- stopped point and junction collision he had memory no whatsoever of operations, with caboose tory particular trip or accident. cross- Belt Line Road car south appears automobile Hoff to have crossing and standing on car ing, one at a into train between the crashed This occupying same. partially another freight pavement north edge two cars crossing, immediately caboose, south practically such force and with reflecting green equipped with demolished, freight setting fire both car rear; interior at the sides and red three David automobile. and driver Hoff lamp. Only a oil lighted with thereof extricated, promptly but their were car elapsed (Engineer had two minute only with be moved aid of could a wrecker. engines just having detached Wilcox exhibit 19 (See defendant’s attached for one collision switching”), when do our “to car.) First view of wrecked on the scene occurred. conductor, Elliott, were Fred Irving Foley up A. Hoff who friend had driven on Belt Line David skating collision, earlier the from the west enthusiasts and Road before the stopping rink in suburban but at Inwood been at Road on account same *6 deputy crossing. requiring Two sher- crossing (Belt blocked block of the Line scene, testifying Road) freight both if the train greater iffs soon arrived at the be of length; night steps that on extending 36 accident train to automobile skidmarks cars, impact. 318 consisted forward Pictures taken of 39 with result photographer just after- several standing a free-lance cars were left south of and thus wards, blocking said exhib- He also testi- evidence numerous as fied that from its, Dallas to graphically portray Commerce the scene of accident; stops Addison, train undisputed only it the box being Plano color, Greenville, operations cars crashed into were red painted large blocking public with “Southern” require on side of a do lettering, points. white figures “11139.” two other Others highway at the “as train crew that sometimes stated plaintiff that fact the contention It is pass minutes or more” from the much 30as the circum- under raised questions stops at Addison until time the Dallas an extra-hazardous record of of this stances Line journey, its but that'Belt it resumes that defend- condition —a blocking is not for than two or Road “more in the known knew or should ant time, minutes” at a and that on three care; presented ordinary exercise of would of the accident Belt Road Line Appellant most through in issues min- have been cleared “three or four view, opposite asserting earnestly takes the connection, In utes.” the same Calla- C. C. question be crossing in if the in sum that way, operates re- filling who station and one, unusually dangerous determined adjacent Addison Road sides on any country crossing in the then “most right-of-way, defendant’s testified that extra- Texas” would be rendered State of blocked, prior Road was in 1955 Line points four hazardous. the first of error collision, every night you “almost insufficiency argues of the case made look out.” effect, plaintiffs law; a matter of sustain of no evidence adduced strong objection Over there defendant findings negligence proximate of either testimony of an accident and near- railroad; against cause uncon- experienced by accidents *7 highway travelers record troverted reflects that collision the prior at crossing February the either to solely by Hoff, negligence caused the of 16, 1955, days or a few thereafter. M.C. driver, plaintiff, both; the or either or Hindman, cabinet maker living at Carroll- total lack findings of evidence to sustain of ton west, shop several miles to the with proximate or negligence against case de- Addison, at frequent testified to be- travel fendant; (4) error in the court’s refusal towns; tween the part that the latter of jury to set findings aside 1-8 inclusive way he was on from Garland back to contrary because so overwhelming to Carrollton at 9:00 or night, 9:30 o’clock at weight preponderance of all credible ahead”, “looking straight when his wife evidence manifestly in the case as to be called attention to the train across the wrong. For due consideration of these highway, “and train, I had never seen the points, summary a of evidence relied on my and, for just went brakes of and I plaintiffs inis order. stopped right, all course, got we but I junction train that is a for the Fort at time within Addison couldn’t see trains, track, feet according Dallas hundred I know.” de- one Worth Carrollton, by depo- Money, engineer, testifying Roy train whose business fendant’s required ; necessitating nightly interchange delivering gasoline up traveling of of sition Road, down Belt Line testified operations, train 318 from cars cars”; seeing parked difficulty that running “from to 60 a train on the Dallas night crossing (no to the inter- on a dark fog, from rain or distance cars, good was about 33 car condition) Fort Worth line until secting Holloway, had intersection; obviously man same that of that unless close to the on collided with this freight a car a train at painted, newly new or headlights reflect the not account that on Callaway said Witness freight standing automobile. The his north, Road lining Addison structures been February had car on the standing of a portion see not one could red”. “dull witness as described another south to the part train, only across experience at the Rutledge T. W. told slope from that, due highway; nighttime, travel- crossing in 1949 at or ’SO at automobile east, an headlights of west; calling occupant car an of his train, making be lower than night would Line Belt across train to the attention way, from see bit hard to it a little he stopped, but Road; otherwise that he Roy to reflect.” “especially nothing have.” might not it or have seen “might condition, same Money also testified to happening a similar related George Meister that, approaching when accident; days three after the two or shine under night, “your lights would Line Road around traveling Belt west on * n * you get close train would have to having morning in the 6:00 o’clock * * * go under up lights would “and an abutment take to the over off side n * ad On he cross-examination safely on very that I landed I was fortunate having always seen trains in time mitted to my wheels,” incurring dam- four some car looking stop and that if motorist were a Belt Line age; that he was familiar with always he it. On train could see Road, having it for more than traveled witness, hand, Foley, other defendant’s year prior thereto, and that road conditions boys, rescuing had assisted in the two who respects had been in all C. C. similar. difficulty seeing testified having no Callaway observing testified similar crossing) (then moving train over years before; occurrences two or three yards away; from 100 the crash Holloway, that a man going same named approximately occurred after one minute car, direction as the Hoff run into both stopped; he and the train had also there; that, and before bunch of difficulty he had no in seeing the ca negro boys traveling gone east had into boose, lights, its and the conductor within. opposite the ditch on keep side to hit- train; ting County Engineer, also of a car going Brandes, west two Traffic W. C. nights after February generally en- the driver Line Road testified seeing train, applying through brakes, County, passing of his Dallas circles jumping curb on south side May of road and outlying towns. various heading car down the traffic right-of-way. had taken a capacity, Above in official instances Roads, accident Preston near-accidents Belt Line and count at *8 qualified having place subject as taken under of miles east the and one-half ques- by as in a de- following similar conditions the accident same letter to crossing; however, Callaway, 63, page signal lights tion. state- be suggesting that fendant facts, ment of describes the dark as set forth there. In Footnote1 is installed misty, when, years before, car, and correspondence. two particular a the 1. a volume of Line carries considerable Department vicinity. “Industrial in We actual this traffic showing St. Louis & Southwestern Railroad counts on record a volume volume typical 209 South Lamar St. in a 1700 vehicles 24-hour of over Dallas, point approximately day n Texas. at a miles crossing under east of discussion. “Gentlemen: point approxi- count at a Another taken very increasing mately “We of miles desirous west of here a shows vol- protection County per day. our vehicle more than 600 vehicles ume of using importance par- traffic Belt Line Road at of of the cross basis this On your ing directly of railroad south of Belt Line Road and the ticular number County using it, respectfully of the Town Our we Addison. vehicles re- of
2X0
itself,
objects proper
company
by
or
other
points of
primary
In
answer
above
themselves,
by
configuration
in
of
or
foregoing
error, appellees summarize
which,
land,
is
crossing
or that the
one
that
fact
testimony;
arguing
outline of
person
any reason,
prudent
reasonably
for
a
thereby presented relative
questions are
ordinary
in
could not
of
care
exercise
A state-
through
8.
to aforesaid issues
safety,
crossing
use with
that
is a
or
upon
sub-
principles bearing
ment of
one,
ap-
much traveled
and the noise of
be
first
ject-matter
should
under discussion
proaching
trains
rendered indistinct
stated:
ordinary
by
signals
heard
difficult
be
reason
recognized
of bustle
confusion incident to
universally
be
It seems
(1)
business,
by reason of
a train
railroad or other
charge of
that trainmen
determining
object
cause.
such
crossing with
some other
public
has blocked
car,
discernible,
a box
is extrahazard-
like
whether
railroad
easily
which is
traveling
rule,
be
case must
within this
each
ous
assume
right to
have a
light
own facts.” 74
of its
obstruction
viewed
approaching
highway and
728,
pp.
1351.
a rate
Railroads
and such
adopt
§
will
suitable
C.J.S.
Beard,
&
Co. v.
Tex.Civ.
bring his automobile Texas
N. O. R.
speed
he can
of
as that
A
App.,
(writ ref.).
been some two motorist to on the believe blocked, ex the cir obligation utes. take of to was not Defendant’s illusion, is include which traordinary precautions does not cumstances such created support finding not rail statutory against dangers enough to extra measures ordinary operation road known merely either knew or should have arising an from Callaway’s that such an result from of From illusion would (2) the railroad. existing Texas N. O. property up to the north circumstances.” & on Addison Road Davis, Tex.Civ.App., houses, R. Co. v. are structures 210 S.W.2d garages and other 318; 195, syl. part (4) history near-acci of train A of obscuring well east, to rail the dents is insufficient notice the to traveler from as leaving visible road, sought primary appellees, only of the on the issues here according a view to to be & O. R. Co. v. established. N. con Texas highway; cars on and south of the Davis, obstruction, supra. Also and of no to inadmissible and material stituting an probative was the crossing. force this connection nighttime dangerous issue of a Callaway concerning of the Hol However, the statement exhibit No. of defendant’s loway running into a train at herewith) from distance incident of (shown locale before, years the two circum east, ample of reveals view of feet the. entirely being houses, so far as known etc., stances the the north crossing; the to dissimilar. the Brandes Effect of except degree. The not a minimal visible to notice; involving letter as this case complained along Addison obstructions of approach blocked not a relevancy crossing and train Road, opinion, have in our would ing highway,. correspondence the only de to a vehicular collision caused advisabilty calls the to attention of approach the fendant’s train in its cross of be Callaway protection increased the ing Messrs. the north. vicinity that, heavy along cause of and in Money gradu travel testified due Road; east, manifestly Belt Line relates of slope al highway of from the auto warning to a rather approaching of trains lights go un are and would lowered precautions than to notice train, additional der not hit box cars upon already afforded cars up”; “until close latter testi witness signs, signals, warnings “The of use parked fying similarly of an automobile persons using purpose letting of is crossing, opposite blocked side of the presence highway know the of the meeting you are a car.” it “looked like approaching train crossing, and that a testify to not the describ David did highway. in this Under facts consequence phenomena that he ed case, completely after blocked thereby; Hoff misled or the driver highway lawfully passing over any who had nor one of the witnesses did highway, itself within sufficient experienced make reference near-accidents persons using warning highway testimony tend Neither was there thereto.2 O. R. beware the train.” Texas & N. knew or should that defendant to show Stratton, Tex.Civ.App., Co. v. 74 S.W.2d safety history from the (aside have known 741, 743. crossing and letter Brand- record il noted) raising described As the issue extra-hazardous es next plaintiffs dull, crossing, alleged “Proof of illusion that “The lusive factors. cognizant contrast, fact N. Texas & R. O. Co. v. 2. We Beard, plaintiff supra, Missouri, R. of Texas v. T. Co. herself K. & testified to shining Tex.Civ.App., lights Long, S.W. automobile account under train on testify occupants elevation, did not mis- railroad track thus car Temple City creating open leading illusion of an unob- effects beyond shining Notwithstanding this, above structed road. electric approached the was reversed and car cross- case of the rendered their on basis them relevancy does entire record. ing, but By way.of been raised. appear *12 high- lawfully on the was standing across box cars of defendant’s dark color a way. had on If trainmen vision the defendant’s plaintiff’s crossing obscured blending right reasonably careful to assume a night accident said of highway the man a driving of an on color automobile dark night adopt light at night lights would reflect the use such pavement failed road bring plain- speed such a of he could in which rate as that car headlights of of the dis- within the time his machine standstill sufficiently and a riding tiff was ap- by tance plainly could danger that he see apprise plaintiff of peculiar on a his machine car twelve a box ; presenting proaching” thus high highway reflected feet standing across similar danger of situation (cid:127) jury track, a on and com- case, motionless a railroad supra, where in the Davis pletely along obstructing passage situations a two The verdict sustained. straight or highway, black unobstructed then parallel. Two were not all perform defendant did not then involved omit were tank cars dark-colored any duty dark, pavement, by showing lights, giving wet not case, night the Davis other holding warning presence that even dark-colored; of Court on train.” put defendant did not conditions those hazard, nor did particular notice harmony In with the here- conclusions notice The the fact of near-accidents. reached, appel- inabove we sustain must of the issue to raise sufficient held there first, points, lant’s third fourth ren- contained crossing was dangerous extra dering unnecessary a consideration of deputy sheriff who testimony points judgment further of error. The previously collisions several actual detailed under is review accordingly reversed almost iden- under occurring at location appellant, here favor rendered in St. his- safety Absent tical circumstances. Louis, Railway Company Southwestern Court, noted, the Beaumont tory said just Texas. adjacent to the nothing on or “There plain- obscured could have highway which crossing, or distracted tiff’s view DIXON, Chief Justice. country adjacent to the The
his attention. opinion The rehearing on heretofore ordinary conditions Under road was level. submitted in this case withdrawn and hazard- visibility, opinion the following is substituted: ous.” my opinion appellees’ motion for injuries David suffered rehearing should be sustained. admittedly serious on the occasion equally is our serious lasting; and Appellee-plaintiff was guest pas determining matter of responsibility in the senger automobile driven another liability con- therefor. We defendant’s person. At about 8:35 P.M. on principle followed in Texas that the clude 16, 1955, February the automobile was driv Stratton, supra, is like- R. Co. v. & O.N. en almost head coupled on between two subject- of the instant controlling wise freight cars of train,, a standing freight there Antonio Court San matter. was blocking the crossing where Belt following approval language cited with Line Road crosses the railroad tracks. The Dillon, Philadelphia & R. R. Co. v. had', appellee was car in which a passenger 65, 62, 31 Del. A. W.W.Harr. proceeding been west Belt Line Road. prin- illustrative 15 A.L.R. then, “Here, company jury the railroad A found that ciple: the crossing was- plaintiffs ordinarily dangerous assume that the more than right to as night- way crossing during reasonable to avoid time switching operations;- act Railway Company, box cars and that the running into while appellant,.
215 a Railway Company, Southwestern which failing to have (1) negligent was failing tracks run At installed; in a north-south direction. signal device switching point a pending 1500 feet east of the cross- railroad throw or fusees flares failing ing Addison School House is located on operations night; at during highway. Opposite House, crossing Addison School flagman a at West, according failure Each Belt Road crosses night. Line switching operations at proxi- hill, over person a the crest of a and a driv- negligence was found jury road, daytime, The west gets even in mate of the collision. cause auto- his first view or of of the railroad tracks an also found that the driver particulars, object on them he negligent in comes to the crest of several mobile was proximate crossing. this hill 1500 feet from which the sole At none of n cause of the jury point begins slope made highway The this collision. down- ward, of had the effect the incline findings amounting further which to 14.4 feet in passenger, of appellee, guest (Appellant’s employee 1500 acquitting feet. Walk- er, on the (cid:127)contributory negligence. engineer, It was a civil whether this asked judgment “appreciable, jury slight, incline is 'basis of this verdict or or would appellee. eye notice was rendered favor it?” He said that it was a slight grade, “Well, your eye but also said judgment in favor of reversing the In it.”) point would notice At a about 500 feet rendering judgment favor .appellee and east of the crossing sign is a railroad opinion original in our appellant we held inches in standing diameter about four feet support evidence to there was no off ground, crossed arms and crossing more jury finding that “R” on each arm. ordinarily dangerous nighttime aas than Road, asphalt paved, Inwood also runs switching operations. during As crossing between the City Dallas and Belt Line holding consequence we then fur- of such Road in general parallel direction to the part duty no on the held that there was ther railroad, and comes to an end at Belt Line device, signal appellant furnish a -of Road about 85 feet west of railroad flares, warn motorists that flagman or a crossing. Road, asphalt Addison another freight blocking train was standing paved thoroughfare, begins at n Line Belt Road about 165 feet east myself agree unable to that there I find and runs north into the Town of Addison. jury in favor of the no evidence verdict. -was About 1000feet north of the railroad cross- my opinion probative there is evidence of ing at Belt depot Line Road is the railroad record, and it is sufficient to force in the for the Town. support jury verdict. To (cid:127)support the such plat to scale mapA drawn West necessary opinion becomes for me to set It shows that two put in evidence. portions material in some detail the -out Louis, Southwestern of the St. branches jury supporting the the evidence verdict. Addison. Railway at One of these meet West, County Worth, Surveyor Addison to Fort Robert H. runs from of branches County, Texas; other runs Addison Dallas testified Line Road branch n isan point asphalt paved highway which, Dallas, meeting Texas. about prior is about feet years to the date of branches north two this trial the two 1956), crossing Belt had been widened at Line Road. {February and re- the railroad tracks right-of-way so that it has including surfaced 100 There are several pavement begins track, “Y” about averages and a which feet wide feet highway Line at Belt Road. A .24 in width. this from the feet buildings are shown along and west. At the south edge runs east number of n Road, incorporated the high- beginning Town of Addison of Addison west side Louis, located near and way facing crosses the tracks of St. a service station minutes, longer Road Belt Line than half intersection of Addison four or four and a they but there is other Line Road runs west from the evidence that some- Road. Belt Town Carrollton. times take 25 minutes or more. At intervals crossing toward the plat during operation A herewith. this copy of the is submitted *14 blocked, Brandes, County Engi- involved is often Traffic here as it was William C. County, night collision, by string He standing also testified. of this neer of Dallas fact, Callaway, encircles the freight Line Road cars. In C. stated that Belt C. operator, County, outer-loop going grocery clear around service station store May adjacent County property through towns. whose lies to the railroad most of right-of-way traffic he a count vehicular at the railroad caused adjacent Pres- Ad- Belt Line Road between also to Belt Line Road and to be made on Road, crossing, at a dison that the block and the Railroad testified trains ton Road every night.” miles east Belt Line Road about “almost 1½ volume crossing. This count showed Appellant switching opera- asserts that no day. typical 24-hour over vehicles progress pro- tions were in or had been about three miles At count taken another gress at time of the accident and that per vehicles further west a volume of 600 operations” “switching ought not to be figures in- day was These shown. brought into the record. I am unable appellant in a letter Brandes sent to cluded agree appellant point. on this copied railroad, will which letter opinion. later in this discussed train, engineer of the Dallas W. J. Wilcox, by deposition. testified His train the tak- Brandes also testified that since at P.M. left Dallas 7:55 o’clock and arrived count, the amount of traffic of the above at Addison at about 8:30 o’clock P.M. The on Line Road has increased virtue Belt ordinarily train Dallas includes from 30 to County of the fact that the towns been usually Fort 60 cars. The Worth in- population, especially growing greater in cludes to 70 cars. Sometimes 20 or 30 goes through. Belt Line Road towns that cars are switched at Dal- Addison from the further that in March 1955 He testified train, Fort las train to the and a num- Worth counts, traffic on took other two ber of cars switched from the Fort crossing, of the railroad but clos- each side train to the train. Worth Dallas The dis- year before. er it than the counts tance from the Fort line to Worth the Belt showed a volume These later counts crossing on Line Road the Dallas line is 33 crossing on the railroad Belt traffic west of length. night or 34 cars’ On the of the ac- and east of the Line Road of 1736vehicles cident there were 39 cars in Dallas train. day. vehicles in a 24-hour crossing of 1670 train, after it Thus Dallas came to a stop, four, extended or six five cars on the respect to the volume of traffic in With side crossing. other of the Belt Line Road crossing, appellant’s vicinity wit- train, Wilcox, engineer of the testified ness switching Wilcox also testified as to the thorough- Line Road is a “main Belt procedure usually actually followed fol- traffic”, and “much that Inwood fare” with on lowed the accident. The “paved street” and that there is Road is a Fort train as usual was the Worth first to “much on it. traffic” at arrive Addison the Dal- When Junction. every night stopped shows that las train arrived with four or The evidence two five Addison, extending cars across the Line meet one from or six trains freight Worth, diesel Texas and other from Dal- locomotive on Dal- Fort stop place las, permit trains las train was detached and took These two its Texas. “Y” One” track of the freight cars between them. the “Short while the switching of appellant’s from the Fort evidence from trainmen locomotive Worth train did There operations switching. The do not last the actual cars be switch- these *15 in: faded, dirty something; part Dallas front somewhat were on the ed words, light.”" loco- reflect the the Dallas train’s other it wouldn’t while train. It was One” standing on the “Short motive stated, already auto- As westbound accident occurred. “Y” that the track of the must, mobiles, crossing, approaching the testimony is corroborated of Wilcox 14.4 feet slope of gradual travel down a Robinson, Boyd, witnesses substance a distance 1500 feet to the also trainmen. Slayton, who part head- At the beam from the least of cars exchange Though the actual under goes of such automobiles place several other took to the one train witness- boxcars. connection the this Line Road hundred feet north Texas,, Carrolton, Roy Money, a resident the trains and crossing, stopping of Belt Line testified that familiar part crossing were blocking Road, many to- times having had occasion operation. overall up driving gas- go night and down it at contains evidence of record also as- testimony His continued oline truck. copy a weather following: A certified : follows report of the ac- showed that on the night. “A. up there at went Appellee Duf- moon.” cident there was “no *16 the lights Your would shine under night.” fy “dark, it a cold testified that was train; parked a there would be car it Callaway The testified that was witness like and it looked on the other side night. a dark * * * you meeting were a car— Elliott, the Dallas (2)Ray conductor on what his Court: Let state “The him accident, night of testified that train the the was; experience everybody not what boxcars involved in the accident were the * * * else’s was. lettering. color with a dull red white C. “ * * * Callaway C. testified: along “A. I went there and with asking you I think about Court: he is parked you a train there and would it, your experiences about Mr. Wit- own up- get lights have to close would —the ness, night, the same kind of a the same you go under train and before this what, your experience night, a kind of could see it the car on the other up respect seeing to there on it, lights of when their side would come track, you whether or not dif- the well, it difficult see. is to underneath — Well, A. ficulty seeing it. the fairest “Q. McElroy) (By Mr. Would that, way I could answer it by your lights be reflected the box- * * * plain They are not too to see. happened cars which to be on the plain; nothing on the too there is cars No, A. crossing? it wouldn’t hit always them, very I see it is reflect—like boxcars; lights it would—the would dull, see, I it is more or less hard to * * * go under. words, your say. In other would train; lower, say, I would than are (By McElroy) “Q. you Mr. Are way, be a little hard from that it would your personal testifying experience,. especially, nothing to reflect. That Money? personal experience Mr. Your my way description of it.” immediately the road in the weeks on speaking Hindman about his near M.C. February 16, 1955? prior A. That’s “ * * * crossing, testified: at the accident personal my experience.” right, your by lights of reflected car Were Appellee Duffy the defendant? A. Not the testified as follows: boxcars “Well, crossing. crossing, It as we neared the directly was the one I directly right passed, sign glanced noticed the and I we one "if I newly painted car, to see could notice a new ahead train or was which sign anything. The say itself told me—it one at was didn’t which nightly Addison, its looking I result at and that as a anything about train. was Road; frequently anything; seemed trains Belt Line I it see if see blocked could ahead, phases also straight light just there are dark and me that the road went question moon, a sudden all of that the straight ahead and then dark, hit moonlight. we before without about two or three seconds it, it.” big wall and there there was a way “Q. He And my opinion undisputed further testified: evi looking at you Bing appel supports Hoff dence the conclusion that A. sign? you passed warning time lant either knew or should have known if ahead; looking to see Straight I tending the cross other factors to make Q. tracks. there wasn’t train on On ordinarily dangerous. more than Yes, A. May 10, 1954, train? looking County Engineer You were for a sir, just anything; County, acting through but couldn’t see Dallas County C. Engineer the road.” looked like Traffic William Brandes, ap following letter to sent the injuries stipulated (5) It pellant : automobile suffered the driver of the accident, so memory of the (cid:127)obliterated all increasing very “We desirous testify. he did not protection County our vehicle at using traffic Line Road Hindman, Callaway, witnesses directly your south col- Rutledge and Meister testified County Our Town Addison. near collisions lision and several Belt Line considerable volume carries a Belt Line Road vicinity. of traffic in this We together with set out The evidence above *17 actual record show- volume counts on facts, seems other record of .evidence ing a volume over 1700 vehicles in of rail that the support jury verdict me to point ap- typical day a 24-hour at a ordinarily crossing more than road was 1 cross- proximately miles east ½ during dangerous nighttime as a ing under discussion. Another count sup switching operations. This view finds point approximately 3 at a miles taken Gulf, & S. port following C. cases: in the shows of more west here a volume Picard, 147 Tex.Civ.App., Ry. F. v. Co. per day. On than 600 vehicles 303, v. N. R. & O. Co. and Texas S.W.2d importance par- this of the basis 384 Dickson, Tex.Civ.App., 72 S.W.2d and the number ticular Line Road ; & Den Ft. operations) Worth (switching it, respectfully using we of vehicles Tex.Civ.App., Looney, City Ry. v.Co. ver proper request rail- consideration of 322; R. v.Co. Texas & N. O. 241 S.W.2d equip this road officials 195; 210 Davis, Tex.Civ.App., S.W.2d type with the automatic Long, Missouri, & R. of Texas v. T. Co. K. flashing signals. you Will (accidents 401 Tex.Civ.App., S.W.2d approval please official advise us as to accidents; background and near and probable installation date of such and Ry. illusion) ; Gulf, &C. S. F. an producing equipment.” & N. O. Picard, supra, R. and Texas Co. v. appellant replied August On traffic). Dickson, supra (amount of Co. v. study prepared stating that had been $4,223.76 Railway Company showing estimated cost of for an Appellant signal lights at the knowledge of the cross- and the installation notice charged with appellant stating that crossing. ing, did at the It but further permanent conditions knowledge bear and not feel it should all cost of with notice charged is also installation, inquiring per- and temporary exist what conditions such of some County Dallas was crossing, willing cost such as cent of the near ing at operations bear. conducted it fact County alleges En- Point No. six that the award 8, 1954, September On $50,000.00 plaintiff appellant was excessive.
gineer by informed letter appellee The evidence David bear shows that County position “to was not years protection age and a senior expense provide signal County High School at the time of the accident. Dallas crossing. at this In fact expectancy years. 48.32 He duty.” His life Railway’s feels that this is the planned to and become enter the Air Force correspondence admissible The above pilot. had During summer vacations he of notice the issue evidence on stand, a milk worked at watermelon & Denver Railway Company. Worth Ft. truck, boy grocery package and as a "at a Tex.Civ.App., Ry. Looney, City Co. v. injuries: Appellee store. As had to his appel- over S.W.2d 322. was admitted bone; It compound thigh of his fracture left limitation— objection, lant’s without but bone; he jaw had a his fracture of the requested. purpose was no limitation as to crushed; left cheek bone was he suffered Railway certainly put my opinion it injuries lungs internal to his chest inquire obligation to Company under an kept being which necessitated his under investigate the conditions about weeks; oxygen tent for about two when think past happenings at the his oxygen under tent he thrashed duty to do so. Some time; was its some- arms and moaned much of the C. C. testimony of that nature came out; great times he would black he endured operates the serv- Callaway, the man who pain through suffering; he a tube next grocery store ice station his tube nose to his stomach and another easily accessible crossing. He was bladder; given through to his fluid inquiry. veins; his general because of his condition he could given general not be anesthetic it, have overruled As I see we should 1955; placed until March a wire was one, and four. appellant’s points Nos. three knee; just leg he was below the kept eight traction for six to weeks Appellant’s point of error No. two asserts hospital; after he first entered the later reflects that record that the uncontroverted placed spica cast, he was in a double damages sole- were caused the accident *18 goes from the lower chest down one entire by ly negligence of the driver leg point just and down to above by have plaintiff. As we automobile or leg; knee on the other casts wore above, sup- pointed there is evidence out 20; braces; July until afterward he wore appellant-de- port jury’s finding that x-rays August 25-degree taken in show a Point No. two negligent. fendant was also femur; angle in his leg is almost an should be overruled. other; per- inch shorter than the he is manently crippled; he must wear a heel or is that the trial Point No. five court wedge, great or add a deal of strain to his appellant’s objection overruling erred back; days going he was in bed 140 after eight Nos. special one to inclu- issues home; weak, leg gives every is his out appellee-plaintiff’s issues These sive. while; hospital once in a his medical appellant’s alleged negligence. regard to' father, expenses, paid by his were $2030.20. appellant’s copying said issues or Without Space permit does not further details con- objections, simply I lengthy shall rather cerning injuries. Appellee David Duf- present seem to the issues the fact say that fy, Duffy, his father Driggs Martin Dr. properly in connection with the questions Kipp and Dr. length testified at them. about I the cases down in cited laid as law say I damages cannot that the were exces- one, points Nos. three in connection Appellant’s point sive. No. No. should six Point five be over- should be four. overruled. ruled. says says point eight appellant In No. appellant point No.
In seven overruling their the trial court erred in through acting by and appellees, appellant’s objections special Nos. with, issues hindered attorneys, interfered inquire in and 42. as to the appellant to These issues suppressed right indulged by Martin damages amount of sustained jury vestigate whether the Duffy, Duffy’s father, appellee in their delibera David prejudicial misconduct (2) by Duffy, injured boy, “as a letter David claim is of this tions. The basis the in proximate the trial direct and result jurors after sent to each juries, Duffy any, by David sustained attorneys said: appellee’s in which if * * Appellant complains because representatives of anticipate “I inquire damages suf- issues did not Defendant, probably agents, claim proximate result fered “as a direct and contacting you will in an effort be negligence, any, if defendant nature lawsuit and the talk about the railroad.” (Emphasis supplied.) may You talk your deliberations. complete specifically worded issue as choose, you but or not as to them damages names the elements of proper me to advise is correct and jury may take into consideration. Then purpose talking you that their follows these words: “all a direct and as by you upset your verdict will be to proximate injuries, any, result of the if you jury miscon- trying convict by sustained David on the occasion stand, I duct. want verdict this question” (Emphasis supplied.) too, and you I do am sure that im- you do not want it to be I am wording aware that a similar to you peached, asking if and I am charge that used in court’s has been representatives of by are contacted cases, objectionable in held several includ railroad, you will tell them that Reichart, ing Anderson v. 116 S.W.2d your you will discuss the case and Paving Pyle, Standard Co. v. S.W. deliberations, all, only with the if at 2d both the Fort Worth Court of present, attorney Plaintiff so for the the, Appeals. Nevertheless, Civil under cir misunderstanding. that there will be no case, of this I cumstances do not believe arrange- make Then in that event will wording of the issue as submitted con any present ments to time stitutes reversible error. The issue as necessary.” discussion is felt expressly compensation drawn limits injuries sustained on the occasion in my opinion appellant In has not shown question. jury further limited error in reversible connection language damages issue to such place, appellant first No. seven. *19 may preponderance it find from a 327, comply Rules did not with Rule Texas jury evidence. The “ was also instructed: The record not of Civil Procedure. does * * * arriving your in at answers to appellant sought introduce show that questions you submitted cannot take jurors from the evidence or affidavits any into consideration fact or circumstance jury In others of misconduct. the second brought testimony not out before place, say I cannot the letter itself you.” attempt suppress right constitutes an appellant investigate and to determine paraphrase language by To used jury guilty mis whether the had been Gardner, v. 159 in Scott 121 court S.W.2d Bros., Ross, Younger v. Tex. conduct. Inc. (ref.w.m.), also the Fort Worth Court 4; Civ.App., 621, syl. 151 S.W.2d Goldstein Appeals, it is difficult for of Civil me to Cowen, Tex.Civ.App., Mfg. Hat Co. v. 136 jury imagine how the in this case could 867,syl. supposed, 16. S.W.2d have under ever the actual 222 what, your experience evidence, night, kind of a view of
charge given, respect up seeing a there with train inquiring about the court track, you any dif- by David whether or not of those received damages outside ficulty an- riding seeing it?” witness Duffy in which he the car when Well, way that at swered: “A. the fairest appellant’s freight against ran that, plain Feb- I could that it too night of answer is not Crossing on the Belt Line them, myself, I always to see. have seen The verdict elsewhere ruary 1955. has. everybody but I don’t mean that else between connection established causal you I don’t had rather me collision know how appellant negligence of it, depends upon I fast injured. answer how Duffy but that appellee in which you plain; prior going. They are are there no evidence find in the record I nothing inter- is to reflect —like on the cars “closely connected infirmities always them, very dull, it is it is injuries suffered see mingled” see, say. In pres- more or I less hard to would Therein on that occasion. lower, words, your lights from Dallas other I would may distinguished ent case say, train; Ector, Tex. than little Ry. 131 be a & Terminal Co. v. ap- opinion my way, especially, hard from with noth- 116 685. In S.W.2d way of my be over- eight reflect. That would be pellant’s No. should description of it.” ruled. my opinion, In under the circumstances relate to and fourteen Points nine it was not error reversible to admit evidence
alleged in admission into error testimony. letters, men heretofore the Brandes discussion of my in connection tioned (b) Callaway Witness was also four; one, admission points three and permitted accidents, testify to prior as count, also discussed said of the traffic saw, which he and as to accident points should I think these (cid:127)connection. nights February which occurred two after said, already As 'be overruled. 16, 1955, saw, also which he under con issue of under the are admissible letters prevailed ditions similar to those at Ry. City & Co. v. Denver Ft. Worth notice. collision; time the instant he further Tex.Civ.App., 241 322. Looney, S.W.2d as testified occasions when the other determining is a factor in Volume traffic blocked. has The witness more than a railroad whether operated a service station next to the cross Ry. (cid:127)ordinarily Gulf, & dangerous. C. S. F. 1946. ing since He has lived in Addison Picard, Tex.Civ.App., S.W.2d v. Co. 1901. He testified since had driven 303; Dickson, R. Tex. & N. O. Co. v. Texas thousands over of times. The Civ.App., S.W.2d testimony was admissible. 13, 16, 10, 11, appel- points (c) Money The witnesses admit- the court erred in contends lant Rutledge testified to conditions and to their testimony certain into evidence ting experiences crossing. Money follows: “maybe week, traveled road once a Callaway Rutledge a month.” (a) witness C. C. twice testified to an *20 years experience previously about ten approaching driver when whether a asked was stopped at the warning find difficult he time it to see crossing would the passenger. until he was He further parked the fellow testified “if on interpreted my it, I hadn’t called attention it. The court he to don’t very close might seen it or I might as follows: know —I have not the witness question for the I you asking not believe that I think he is have.” do admission of Court: “The error, it, testimony certainly experience was about not re your Mr. the own about the night, the error under Witness, kind of a same versible circumstances. the same
223 prejudicial so a mistrial should that testified Hindman (d) witness Appellant objected been the declared. when at the to a near accident Appellant objection was then avoid sustained. barely in time stopped he his car mistrial, request moved for a but did not warning from only a collision after a jury that disregard the the had instructed He wife, passenger. who a fellow was witness’s Under circum- answer. within was time he not seen train at the stances, judgment not do that think I think a hundred feet of reversed should be on account of the unre- Nos. testimony Points admissible. sponsive answer witness. 434 Rules 11, 16, 10, 13, 18 be overruled. 17 should 503, T.R.C.P.; Em- Walker v. Texas court alleges ployers Tex., Ass’n, 12 that Ins. 291 Point No. S.W.2d objection appellee’s 15 Point No. sustaining should be overruled. erred to the witness question propounded certain speed Callaway respect with to the complains Point No. because 19 Callaway, a service station automobile. objection appellee’s court sustained know he did not operator, had that testified preferred testimony certain of the witness trav speed at which the automobile sheriff, Harding, deputy regard to the have been know must but that did eling speed question just of the automobile in be way. that pretty to demolish it going fast collision, fore the judging the skid “Now, question: if he was asked this Then pavement. per marks on the The court eight a hundred and feet he skidded testify witness mitted the that the car was paved surface and wheels that locked on high speed, going at a but rate of not that, in would that like was demolished permit speed the witness to estimate at speed you about the anything else to dicate per number definite of miles hour. not sustain going?” It was error to it was court, record shows before sustain
objection
question
at the
to the
because
appellee’s
objection,
listened to testi
question
asked there was no
time
mony
length
at
touching
considerable
automo
the court that the
before
evidence
qualifications of the witness. Whether a
108 feet
locked
had skidded
bile
qualified
opinion
give
witness is
evidence
wheels;
already
witness
(2) the
question which
largely
is a
rests
in the
opinion
speed
about
given his
of the trial court. 19
discretion
Tex.Jur.
12
be overruled.
Point
should
car.
449,
134;
458,
32
Evidence
86
pp.
§§
C.J.S.
say
We
and 99.
cannot
court abused its
No. 15 asserts that the court
Point
here.
reversible
discretion
No
error
is
appellant’s
overruling
motion to
erred
State,
shown. Wallace
v.
Tex.Cr.R.
Hind-
after the witness
a mistrial
declare
596,
Point
Point No. 30, 32, re the contrary 36 appellant’s 34 and were to submit refused the court 18, weight overwhelming 20 in of the evi- 19 and credible quested numbered issues inquired the being dence. These issues whether brakes the regard alleged defective negligence sub the was the sole the The court driver Hoff sole collision. cause collision; proximate application of cause of whether question the mitted the miles 12 and Nos. Hoff drove his car in excess of 50 11 and issues Nos. brakes in per hour; appellee is and David 24; and These whether Nos. 38 23 and and appel guilty of unfavorably negligence. sues answered Without were detailing evidence, further the appellant’s witnesses Hard I am of the lant. Moreover testimony opinion testified, the of the jury and their answers were ing Vines and contrary overwhelming contradicted, marks not weight the tire skid 32, the evidence. Points car. This 33 about 108 feet and 34 should extended certainly be overruled. the brakes indicate only It is the evidence were not defective. I reached the conclusion that none question find particular I on that bearing appellant’s points appeal on disclose re- No. 23 should be record. Point it, versible I error. As see for motion overruled. rehearing be should sustained and judg- ment of the trial court should be affirmed. 24 to 31 inclusive relate Points Nos. ap- refusal to submit certain the court’s CRAMER, J., concurs the views above issues; pellant’s requested points and Nos. expressed agrees and for motion complain inclusive of the court’s 35 to 41 rehearing should sustained and judg- requested instruc- submit certain refusal to ment of the trial court should be affirmed. requested is- Appellant submitted 93 tions. requested sues 10 instructions. Chief DIXON, 42 special issues Justice. charge consists of court’s Is- a number of definitions. together with Since CRAMER concurs me Justice inquires condi- about worn sue No. 13 expressed, my dissenting in the views above Nos. tires on the tion automobile^ opinion majority opinion becomes the on speed 25-26 about 15-17 and rehearing. automobile; Nos. about Appellant’s points appeal on are over- Hoff, automobile; driver of the lookout judgment ruled. Our heretofore entered car; about control Nos. 20-22 Nos. reversing judgment trial court’s lights; driving with dimmed about 28 and judgment appellant rendering for is set negligence 30-37 about on Nos. and issues judgment aside is here affirm- entered Duffy. appellee David It seems part of judgment. court’s trial fully ap- charge submits me pleadings under pellant’s defenses YOUNG, (dissenting). Justice requested Appellant’s issues are evidence. support in the evidence or without either adhere to conclusions in the reached phases different other or submit seek to respect opinion points original requested instructions issue. the same discussed. there since the case inapplicable especially — special on issues, not Appellant’s Rehearing. Motion for On was submitted requests Appellant’s charge. general 1957, 8, November we with On 279, 271, 274 and T.R.C.P. Rules untenable. opinion September majority 27, our drew 24-31 35-41 are Nos. points Appellant’s majority opinion 1957, in which we had sus overruled. By appellees’ rehearing. motion tained opinion withdrawing setting our jury’s aside assert that and 34 Points judgment September of affirmance of 10, 12, 17, our Nos. issues answers *22 1957, made the withdrawn 27, of course we in- aside judgment we set
opinion and the for and effect
operative and of no force appellant had
purpose But whatsoever. rehearing. for a motion
meantime filed opinion and
Upon withdrawal of our appellant’s judgment,
setting aside of our rehearing for also be- pending motion
then inoperative and of no force or effect.
came way pass we on said motion
So did another, overrul- sustaining neither nor
ing it. 8, 1957, substituted
Also November we opinion again majority in which we new rehearing, appellee’s motion for
sustained judgment our affirming entered judgment.
trial court’s 22,1957, appellant duly and
On November
timely rehearing, for des- filed its motion “Appellant’s Re-
ignated Second Motion for
hearing”, against directed our substituted judg-
opinion of November 1957 and the that date.
ment of affirmance of
Appellant’s rehearing desig- motion “Appellant’s
nated Second Motion for Re- is overruled.
hearing” REDDEN, Appellant,
H. T.
v. al., Appellees.
Mrs. Gert HICKEY et
No. 3514. Appeals
Court Civil of Texas.
Waco.
Nov. 1957.
Rehearing Jan. Denied