Home/Court of Appeals of Texas/Missouri, K. T. R. Co. v. Long

Missouri, K. T. R. Co. v. Long

293 S.W. 184, 1927 Tex. App. LEXIS 50
CourtCourt of Appeals of Texas
DecidedMarch 11, 1927
DocketNo. 7079. [fn*]
StatusPublished
Cited by16 cases

This text of 293 S.W. 184 (Missouri, K. T. R. Co. v. Long) 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
Missouri, K. T. R. Co. v. Long, 293 S.W. 184, 1927 Tex. App. LEXIS 50 (Tex. Ct. App. 1927).

Opinion

BLAIR,'J.

g. H. Long was killed when an automobile he was driving ran into appellant’s freight car passing over the grade crossing at the intersection of the Meridian highway and appellant’s railroad, about 100 feet southeast from the city limits of Temple, Tex. His widow, for herself and their children, sued appellant for the resulting damages, alleging in substance that the Meridian highway was a much-used thoroughfare, and that the crossing was a more than ordinarily dangerous one for all travelers, and especially so for automobile travelers in the nighttime: First, because it was in a depression and flat, the highway approaching it downgrade both from the east and the west; and, second, because only a few feet to the west of it electric lights in the city of Temple were constantly burning at night, and were faced by automobile drivers going toward Temple as deceased was, which conditions rendered it very difficult for them to see the crossing, or a freight train or other cars passing over it on a dark night in time to avoid running into them. Long’s death was alleged to have been caused by the negligent failure of appellant to keep a light at the crossing so that travelers could see it, or see any freight train or other cars which might be on it in the nighttime.

Appellant filed a general denial and a plea that deceased was guilty of contributory negligence in several particulars which caused his death.

Four of the five issués submitted, and the jury’s answers thereto, are as follows:

“1. Do you find from a preponderance of the evidence that the conditions surrounding the crossing in question were such as to render that crossing more than ordinarily dangerous as a nighttime crossing?” Answer: “Yes.”
“2. Do you find from a preponderance of the evidence that the defendant, in failing to have a light at the crossing in question, was guilty, of negligence?” Answer: “Yes.”
“3. Do you find from a preponderance of the evidence that such negligence of the defendant was a proximate cause of the injuries to the deceased, S. H. Long?” Answer: “Yes.”
“4. Do you find from a preponderance of the evidence that the deceased, S. H. Long, failed to keep a proper lookout, or was driving a car with insufficient headlights, or with insufficient brakes, or was driving the automobile at a high rate of speed, without sufficient brakes to stop the car within the distance the headlights would light the road; or that he failed to stop the automobile within the distance he would have discovered the presence of the train on the road by the headlights in the exercise of ordinary care; and that in either of said particulars, he was guilty of contributory negligence?” Answer: “No.”

By the fifth issue the jury found damages in the sum of $17,500, for which sum the court rendered judgment for appellee.

The appeal is predicated upon sixteen propositions, eight of which, Nos. 1, 2, 3, 5, 6, 10, 11, and 12, complain in one way or another that the jury’s answers to issues 1 and 2 are without any evidence to support them, or to sustain the judgment based thereon. That is, it is contended: First, that there is no evidence showing a more than ordinarily dangerous nighttime crossing; and, second, that “since the laws of the state do not require lights to be maintained at grade cross *186 ings of public roads and railroads * * * unless conditions were such as that without a light the crossing would be thereby rendered more than ordinarily dangerous,” appellant was therefore not guilty of negligence for failure to maintain a light. These propositions correctly state the tests or rules which fix liability and control the case.

The Supreme Court held, in M., K. & T. R. R. Co. v. Magee, 92 Tex. 616, 50 S. W. 1013, that—

“If that particular place was so peculiarly dangerous that prudent persons could not use the public road in safety, unless the company employed * •* * extraordinary means, * * * then, in such event, it was incumbent [upon the company] to employ such extraordinary means.”

In the case of Tisdale v. Ry. Co. (Tex. Com. App.) 228 S. W. 133, it is held :

“Whether or not any given state of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger on extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonaable minds.”

The authority 33 Cyc. 944, holds:

“Whether or not it is negligence to fail to provide such flagman, lights, or gates is a question for the jury, depending upon the circumstances of the particular case.”

The eight propositions under consideration simply attack the sufficiency of the evidence to support the verdict and judgment* admitting the tests or rules announced as the proper ones to fix liability. We are clear in the view that while the evidence may not conclusively establish a more than ordinarily dangerous nighttime crossing, it abundantly supports the jury’s finding that it is so; and also supports the jury’s finding on the issues of negligence and proximate cause.

“In determining whether the evidence is sufficient, an appellate court must reject all the evidence contrary to the verdict and consider only evidence sustaining it.’’ Fort Worth Benev. Assn. v. Jennings (Tex. Civ. App.) 283 S. W. 910; also, Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696.

The Meridian highway is a main thoroughfare traversing this state, and is much used for all kinds of travel, and especially' for automobile travel. The crossing here involved intersects appellant’s tracks practically at a right angle, and is about 100 feet southeast from the city limits of Temple. The only signal, notice, or devise maintained by appellant at this crossing to warn the traveling public of the proximity of the crossing, or of a freight train or other cars that might be passing over it in the nighttime, is the ordinary cross sign required by statute to be maintained at all grade crossings. It is located to the right of the highway and served but little purpose, if any, as a warning to automobile travelers in the nighttime either of the proximity of the' crossing, or that unlighted freight trains or other cars might be passing over it. The crossing is in a depression or flat, the highway approaching it downgrade both from the east and west, as is shown by the following drawing:

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293 S.W. 184, 1927 Tex. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-k-t-r-co-v-long-texapp-1927.