Home/Court of Appeals of Texas/Gulf, Colorado and Santa Fe Railway Co. v. Latham

Gulf, Colorado and Santa Fe Railway Co. v. Latham

288 S.W.2d 289, 1956 Tex. App. LEXIS 2126
CourtCourt of Appeals of Texas
DecidedFebruary 16, 1956
Docket12839
StatusPublished
Cited by3 cases

This text of 288 S.W.2d 289 (Gulf, Colorado and Santa Fe Railway Co. v. Latham) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulf, Colorado and Santa Fe Railway Co. v. Latham, 288 S.W.2d 289, 1956 Tex. App. LEXIS 2126 (Tex. Ct. App. 1956).

Opinion

*290 HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Harris County by appellee, C. R. Latham, seeking to recover damages for personal injuries sustained in a collision be-, tween a truck driven by such appellee and a train owned and operated by appellant. Appellee Latham alleged acts of primary negligence on the part of operatives of appellant’s train, and further sought to recover under the doctrine of discovered peril. Ap-pellee, Pacific Employers Insurance Company, which had paid disability compensation and medical expenses to appellee Lath-am, intervened, seeking recovery of the amount so paid by it. At the conclusion of all of the evidence, appellees abandoned all allegations of primary, negligence on the part of appellant and upon their request therefor issues upon the doctrine of dis- ■ covered peril only were submitted to the jury. • Upon findings made by the jury favorable to appellees, the trial court entered judgment in favor of appellee Latham in the sum of $130,000 and in favor of appellee Pacific Employers Insurance Company in the sum of $12,325, as assessed by the jury. Thereafter upon suggestion of the trial court, appellee Latham made and filed a remittitur in the sum of $29,507.64 and the judgment in hi§ favor was reduced by that, amount.

Such judgment is attacked by the ap-^ pellant in 15 points of error by which four basic contentions are presented. Appellant first contends that there is no evidence in ' the record properly raising the issue of discovered peril. Next appellant contends that there is insufficient evidence in the record to support the jury verdict upon the doctrine of discovered peril. Thirdly, appellant contends that counsel for appellee Latham made improper argument before the jury because of which the judgment entered should be reversed and remanded; and finally contends that the verdict of the jury awarding damages in the sum of $130,-000 was so excessive as to show bias and prejudice, thus necessitating a reversal and remand of the case.

These contentions will be treated in the order named.

Appellant’s contention that there is no evidence raising the issue of discovered peril is presented by its points 1 to 7, inclusive. After most careful consideration, this Court has concluded that such points are not well taken and must be overruled. Our reasons for so concluding require a somewhat extensive statement of the factual background of the litigation.

This collision occurred between a White trailer truck owned by the J. H. Rose Truck Line and being driven by the appellee, C. R. Latham, and a motor. car passenger train owned by the appellant, Gulf, Colorado and Santa Fe Railway Company, and being operated at the time by their employee-engineer, H. F. Vaughn. The collision occurred at the intersection of the-appellant’s railroad tracks and Highway No. 83 within the city limits of the City of Menard, Texas, on the 23rd day of September, .1950, at approximately 7 o’clock a. m. Appellee C. R. Lath-am was driving north on said highway and the train was travelirlg west. In order to facilitate our discussion of the facts, a plat which the parties have stipulated correctly represents conditions existing upon the ground is attached hereto as Exhibit A to this opinion.

Appellant's train consisted of two cars, the foremost composed of the engineer’s cab and motor at the front and a baggage express car section to the rear. Appellee’s truck was shown to be approximately 45 feet in length and of a weight, including its load, of between 47,000 and 48,000 pounds.

The following recitation of the material facts is taken from the appellant’s brief, wherein it is contended have been set forth all of the evidence bearing upon the issue of discovered peril.

Appellant’s engineer testified that on the morning of the collision he was coming into the station at Menard, which is located just west of the crossing where the collision occurred; that in his usual manner he had

*291

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Bluebook (online)
288 S.W.2d 289, 1956 Tex. App. LEXIS 2126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-colorado-and-santa-fe-railway-co-v-latham-texapp-1956.