Smith v. Galveston-Houston Electric Ry. Co.

265 S.W. 267, 1924 Tex. App. LEXIS 1009

• Court: Court of Appeals of Texas
• Decided: June 21, 1924
• Docket: No. 8453. [fn*]
• Status: Published

Opinions

PLEASANTS, C. J.

This suit was brought .by plaintiff in error Smith against the railway company to recover damages in the sum of $25,000 for personal injuries alleged to have been caused by the negligence of the defendant.

Plaintiff was injured in a collision between a motor truck which he was driving along a public highway of Galveston county, and an electric car which defendant was operating on its railway track across said highway.

Plaintiff alleged that defendant was a trespasser upon said highway at the time of the collision, it not having theretofore obtained the consent of Galveston county to place its track and operate its cars thereon. Negligence was alleged in the failure of the defendant to properly guard the public from the danger of collision at said crossing, and in the manner in which the car was operated at the time of plaintiff’s injury.

The grounds of negligence presented on this appeal are thus alleged in the petition:

“(a) The defendant was negligent in failing to have at said crossing an electric bell, gate, or other devise to warn persons traveling along said public road and across defendant’s tracks, of the approach of its cars, said crossing being on the main Galveston-Houston road, a muchly traveled thoroughfare, said crossing being obstructed and rendered more dangerous, due to trolley poles which obstruct the view and make it difficult to see approaching cars on said track, and said track and said crossing being rendered more dangerous due to the angle at which said track crosses said road.

“(b) The defendant was negligent in operating its car, which struck the truck and injured the plaintiff, over said crossing, at an excessive rate of speed, to wit, 50 to 60 miles an hour. * * *

“(d) Defendant was negligent in failing to keep a watchman at said crossing, which was a muchly used and dangerous crossing, in order to warn persons who had occasion to pass over the track of the defendant at that point of the approach of its cars, said crossing being on the main Galveston-Houston road, a muchly traveled thoroughfare, said crossing being rendered more dangerous due to trolley poles which obstruct the view and make it difficult to see approaching cars on said 'tracks, and said crossing being rendered more dangerous due to the angle at which said track crosses said road.

“(e) That defendant was negligent, in that it discovered plaintiff in a position of peril or danger, on or near to, and approaching, the track, in time to have stopped the car or lessened its speed and have avoided the collision, and it failed to stop the ear or control same in time to avoid said injury, although it could have done so with the means at hand, in the exercise of ordinary care.”

Defendant answered by pleas in abatement, general demurrer, general denial, and by way of special answer alleged that the plaintiff was guilty of contributory negligence in the following manner:

“(1) That plaintiff was driving an automobile truck approaching said crossing, and approached said crossing and went upon the track immediately in front of defendant’s cars without looking or listening for the approach of said car.

“(2) That plaintiff was driving an automobile truck immediately before said accident, and approached said crossing at an excessive and dangerous rate of speed.

“(3) That plaintiff took no care for his own safety in that he approached and went upon said crossing immediately in front of one of defendant’s cars without watching where he was going, and without looking for, any approaching'car, and in fact generally acted as if he were asleep, and that had plaintiff looked or listened, or exercised the slightest degree of care for his own safety, he would have seen or heard said approaching car, and consequently avoided the accident which took place.

“(4) That plaintiff in approaching the intersection of the highway upon which he was driving, with the track of this defendant, the crossing being at grade, did not at some point nearer than 30 feet from said track, reduce the speed of the motor truck or vehicle which he was driving to a speed not exceeding six miles per hour; which acts defendant alleged proximately caused the' collision and resulting injuries to the plaintiff.”

At the conclusion of the evidence the trial court submitted the case to the jury upon special issues, the only ground of recovery submitted being the alleged negligence of the operators of the car in failing to use proper care to prevent the collision after they discovered the peril of the plaintiff.

Upon this issue the jury found in favor of the defendant. On the return of this verdict, judgment was rendered in favor of the defendant, that plaintiff take nothing by his suit.

The appeal is based upon the following propositions:

“No. 1. There was sufficient evidence to require the submission to the jury, the issue of negligence of defendant in failing to have a watchman, electric bell, or gate at the crossing where the collision occurred.

“No. 2. There was sufficient evidence to require the submission to the jury, the issue of negligence of the defendant in operating its cars under the circumstances, at the rate of speed it was operating same at the time it neared the crossing at which the collision with the truck driven by plaintiff occurred.

“No. 3. The evidence did not show conclusively that the plaintiff was guilty of contributory negligence in any particular, or that any contributory negligence of plaintiff was the proximate cause of plaintiff’s injury.

“No. '4. The court erred in excluding, over objections and exceptions of plaintiff, evidence offered by plaintiff, to the effect that the collision between plaintiff’s truck and defendant's interurban car occurred at the intersection of a public highway of Galveston county, Tex., and that the defendant had no permission nor authority from the county' commissioners’ court of Galveston county, nor from any other authority, to lay its rails or right of way on or across said public highway, nor to operate its interurban cars on or across same, said testimony being relevant and material to showing the rights of plaintiff and defendant, respectively, at the point where the collision occurred; said evidence showing that defendant was a trespasser upon said public highway and liable absolutely for all damage and injury to plaintiff occurring by reason of said trespass.

“No 5. The court erred in admitting in evi-denee, over objections and exceptions of plaintiff, all evidence with reference to the payments by Black Hardware Company to plaintiff during his disability and subsequent to bis return to work, amounts equal to his wages, and compensation prior to the injury, and payments in behalf of plaintiff in doctor’s bills, hospital bills, and similar expense accruing by reason of injury to plaintiff, as the undisputed evidence shows that such amounts were made as advances to plaintiff, charged against his account, and evidence of such payments was immaterial, irrelevant, incompetent, and prejudicial to plaintiff, as said payments were not made on behalf of defendant or for defendant’s benefit, and said defendant was not entitled to any offsets on account of said payments.

“No. 6. The court erred in allowing defendant’s witness Stelter, the motorman of defendant’s interurban car, to testify over objections and exceptions of plaintiff, that he did all he could to stop the interurban car and avoid injury to plaintiff after discovering the peril of plaintiff, said evidence being immaterial, irrelevant, and incompetent, and the mere conclusion and opinion of the witness on a matter of fact and of law, and the very issues in controversy in the case, same being solely within the province of the jury.

“No. 7. The court erred in admitting in evidence, over 'objections and exceptions of the plaintiff, the statement made by witness Zolbe, as follows: T cannot see why a man in an auto, if he had been paying any attention at all, could not see and hear the car.’ Such evidence being immaterial, irrelevant, and incompetent to prove any issue in this cause, and such evidence being but a conclusion oj. the witness, such witness not having shown himself to have sufficient knowledge to qualify him to render his opinion, the evidence being a conclusion of fact and of law by the witness on the very issue to be decided by the jury, viz., contributory negligence of the plaintiff at the time of the injury complained of, and negligence of the defendant in the particulars set forth in plaintiff’s requested instruction.”

The crossing at which the collision occurred is in the open prairie across the bay, and some 8 or 10 miles beyond the limits of the city of Galveston, and 3 miles beyond the railway station at Virginia Point. There is not a house or a tree in the vicinity of the crossing. Vehicles going along the highway and cars operated on the railway are in view of those traveling in both conveyances from Virginia Point to, and for a.mile or more beyond, the crossing. The railway crosses the highway at an angle of 41 degrees. The railway runs practically east and west, and the highway north and south. Such being the relative positions of the railway tracks and the highway, it follows that a person approaching the crossing on the highway from the south as he nears the crossing-might be so far in advance of a car approaching from the east that he could not see the car without turning his head and looking somewhat to his rear. It was also shown that at certain points on the highway near the crossing the view of a car approach ing from the east would be obstructed by the alignment of the poles conveying the electric wires of the railway company. The distance of the car from the crossing where this obstruction occurred would vary with the distance the traveler on the highway would be from the crossing when he looked down the track. There was also evidence that a sign standing between the highway and the railway track on the east side of the highway and about 40 feet distant therefrom, and when directly in the line or between a person on the highway and a car on the railway track, would obstruct the view of the car.

At times there is much travel on this highway. It is the main highway between Galveston and Houston, and the intermediate towns between these cities, and is daily used by quite a number of people, and in the summer season on the last days of the week and on holidays many vehicles pass thereover. There is no evidence that at the time this accident occurred there was a number of persons using the highway; on the contrary, the plaintiff was the only person shown to have been on the highway in the vicinity of the crossing.

We agree with the trial court that these facts do not raise the issue of negligence on the part of.appellee in failing to have a watchman, electric bell, or gate. at the crossing to warn travelers on the highway of the approach of cars on the railway track. There was nothing in the situation disclosed by the evidence to render the crossing specially or unusually dangerous, and in the absence of any statutory requirement of such precautions against possible injury to persons using the highway, such duty would not arise unless it was shown that the crossing was more than ordinarily dangerous. We think the evidence wholly fails to establish this fact. As we view the evidence, the conditions surrounding the crossing at the time plaintiff went upon it were not such as to make it specially or unusually dangerous, and an ordinarily prudent person would have had no special or unusual difficulty in discovering the approach of the car before going upon the crossing.

Such being the situation, we think the ruling of the trial 'court that this issue of negligence was not raised by the evidence is sustained by all of the authorities. Tisdale v. Railway Company (Tex. Com. App.) 228 S. W. 133, 16 A. L. R. 1264; Ry. Co. v. Pearson (Tex. Civ. App.) 224 S. W. 708; Ry. Co. v. Zumwalt (Tex. Civ. App.) 226 S. W. 1080; Hines v. Hodges (Tex. Civ. App.) 238 S. W. 349.

The rule announced in the cases cited applies with equal force to the question of negligence on the part of defendant in the speed at which the car was being operated as it approached the crossing. We have no statutory regulation of the speed at which

railways may operate cars over their tracks, except the requirement of city ordinances as to the speed of trains when operated within city limits. In the absence of such statute, the question of negligence in the speed at which a railway train or car is operated outside of an incorporated city is one of-fact. Unless the facts in a particular case show that the situation was such that ordinary minds might differ as to whether the rate of speed at which the train was operated was negligent, that issue is not raised.

The speed at which the car that collided with plaintiff’s automobile was being operated as it approached the crossing is estimated by the witnesses at from 30 to 60 miles an hour. This was not shown to be an unusual rate of speed. The evidence shows nothing in the situation and circumstances surrounding the crossing which suggests that ordinary prudence would have required the operators of the car to have approached the crossing at a less rate of speed, other than the presence of the plaintiff on the highway. There certainly could have been no negligence in running the car over the crossing at a speed of 40 miles an hour, the view of the highway for miles on either side of the crossing being unobstructed, and the track being in good condition, if no one had been on the highway at the time.

The undisputed evidence shows that the motorman saw plaintiff as he approached the crossing, and long before he reached a position of danger. The jury found that when the motorman realized plaintiff’s danger hé used proper care to prevent the collision. The finding that plaintiff was not in peril up to the time that the motorman applied his brakes necessarily involves the finding that the car was not being run at a rate of speed which would render the crossing dangerous to persons approaching it.

The entire question of negligent operation of the car so far as plaintiff was concerned was submitted to and passed upon by the jury in answering the issue of discovered peril. No complaint of the manner in which this issue was submitted, nor of the verdict ■of the jury thereon, is made by plaintiff.

As the case is presented by this record, the issue of contributory negligence, as such, is not raised. We think the undisputed evidence and findings of the jury acquit the defendant of negligence. If the plaintiff was negligent, such negligence was the sole and not the contributing cause of his injury, and it is unnecessary for us to decide whether the evidence convicts him of negligence as a matter of law.

We do not think article 6735 of Vernon’s' Sayles’ Civil Statute can be construed as requiring interurban railway companies to obtain the consent of comity authorities before placing their tracks across a public road; such consent is only required when the railway track is constructed “along and upon” a public road. If, however, the consideration of the track across the road could be held unlawful, such trespass upon the highway could not be regarded as the proximate cause of plaintiff’s injury, but at most ■would constitute a nuisance of which only the public could complain.

There is no merit in the objection to the admission of the evidence with reference to payment of plaintiff’s wages by his employer during his disability caused by his injury. The evidence was pertinent, under the provisions of the Workmen’s Compensation Act (Vernon’s Ann. .Civ. St. Supp. 1918, art. 5246 — 1 et seq..) in fixing the amount of i>lain-tiff’s recovery if he had been found entitled to any recovery. If inadmissible, this evidence could have no possible effect upon the verdict of the jury, and could not authorize a reversal of the judgment.

The testimony of the witnesses Stelter and Zolbe complained of in propositions C and 7, before set out, if inadmissible, was harmless. The witness Stelter testified fully as to what he did to stop the car and avoid the injury after he discovered plaintiff’s peril. His further statement that he did all he could to stop the car and avoid the injury is, v'e think, a statement of facts rather than the expression of an opinion. The statement of the witness Zolbe, who was present at the time of the collision, and saw the plaintiff as he approac-hed the crossing, that, “I cannot see why a man in an auto, if he had been paying any attention at all, could not see and hear the car,” was material only upon the question of plaintiff’s negligence, and as that issue under the undisputed evidence and •finding of the jury became immaterial, the evidence, if inadmissible, was harmless.

The majority of the court are of opinion that judgment should be affirmed, and it has been so ordered.

Justice GRAVES dissents from the conclusion of the majority upon the question of whether the evidence raises the issue of negligence in the speed at which the car was operated.

Affirmed.