Home/Court of Appeals of Texas/St. Louis, Southwestern Railway Co. of Texas v. Duffy

St. Louis, Southwestern Railway Co. of Texas v. Duffy

308 S.W.2d 202
CourtCourt of Appeals of Texas
DecidedNovember 8, 1957
Docket15223
StatusPublished
Cited by7 cases

This text of 308 S.W.2d 202 (St. Louis, Southwestern Railway Co. of Texas v. Duffy) 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
St. Louis, Southwestern Railway Co. of Texas v. Duffy, 308 S.W.2d 202 (Tex. Ct. App. 1957).

Opinions

YOUNG, Justice.

David Duffy, a minor, age 18, by father Martin Duffy as next friend, and the latter individually, filed this suit against defendant Railway Company for damages arising from personal injuries suffered by David, also for doctors, hospital and medical expense allegedly incurred by the father as a result thereof. Basis of the action was an automobile collision with a standing train of defendant on night of February 16, 1955, by a 1941 Chevrolet automobile in which David Duffy was a passenger, and operated at the time by Irving A. Hoff, age 19. Upon trial and jury verdict, judgments were rendered for Martin Duffy in the sum of $1,500 and $50,000 for plaintiff’s son; which rendition is the subject of this appeal.

The place of accident and attendant circumstances, both physical and otherwise, will be later detailed; but first to be stated are the jury answers in summary, which sufficiently reflect the material issues raised in pleadings of the respective parties and [205]*205the testimony (defendant primarily contending, however, that upon the record as a whole it was entitled to a peremptory instruction) : (1) That conditions surrounding the railroad crossing in question were such as to render it more than ordinarily dangerous as a nighttime crossing during switching operations; (2) defendant should have known that such crossing was more than ordinarily dangerous as a nighttime crossing during switching operations; (3) the failure to have a signal device there installed prior to the collision in question was negligence; (4) and such failure was a proximate cause of the collision; (5) failure to throw flares or fuses during switching operations on the night in question was negligence and (6) a proximate cause; (7) failure to have a flagman at the crossing during switching operations on the night in question was negligence and (8) a proximate cause of collision; (9) that the driver, Irving A. Hoff, on such occasion failed to operate his automobile at a rate of speed that was reasonable and prudent; (10) but that such failure was not the sole proximate cause of the collision; (11) Irving A. Hoff failed to apply his brakes until he was too close to such train; (12) but that such failure was not the sole proximate cause; (13) that the driving of said Chevrolet automobile with worn tires was not negligence; (15) that Irving A. Hoff drove his vehicle at a rate of speed which was excessive and dangerous; (16) that such manner of driving was negligence; (17) but that such negligence was not the sole proximate cause of the accident; (18) Irving A. Hoff failed to keep a proper lookout; (19) that such failure was not the sole proximate cause; (20) that Irving A. Hoff failed to have the 1941 Chevrolet under proper control ; (21) that such failure was negligence; (22) but was not the sole proximate cause; (23) that Hoff, the driver, negligently failed to apply his brakes in time to avoid the collision; (24) such negligence was not the sole proximate cause; (25) Hoff, the driver, was not operating his Chevrolet at a speed in excess of 50 miles per hour; (28) his driving of the automobile with the lights dimmed was negligence; (29) but such negligence was not the sole proximate cause of collision; (30) failure of plaintiff David Duffy to warn the driver of the danger of driving with the lights dimmed was not negligence; (32) failure of said passenger-plaintiff to warn the driver of the approach to the railroad crossing was not negligence; (34) plaintiff’s failure to request the driver to reduce the speed of his automobile as he approached the crossing was not negligence; (36) failure of such plaintiff to notice and apprise the driver of the presence of the train on the crossing was not negligence; (38) failure of the driver Irving A. Hoff to apply his brakes in time to avoid the collision was negligence; (39) but such failure was not the sole proximate cause thereof; (40) that the collision was not the result of an unavoidable accident; (41) that $1,500 would compensate plaintiff Martin Duffy for reasonable and necessary hospital and doctors bills; (42) that the sum of $50,000 would reasonably compensate the minor David Duffy for physical pain, mental suffering and loss of capacity to work and earn money.

The collision occurred at a railroad crossing in north Dallas County where Belt Line Road, a public Highway, crosses the tracks of defendant Railroad at grade; the crossing being south of the incorporated municipality of Addison, a small village or town. Belt Line Road runs almost due east and west, crossing defendant’s tracks at right angles; the railroad running north and south with Addison immediately north of the crossing and Dallas to the south. At Addison, defendant’s railway, Dallas branch, intersects with its Fort Worth-Texarkana line of railroad in a Y connection. Belt Line Road is a two-lane asphalt highway, 24 feet wide, with 10-foot graveled shoulders, and generally embraces Dallas County. As appellant points .out, there are no curves or angles on either highway [206]*206or railroad track involved in this record. A slight decline in elevation or grade of 14.4 feet is evident as one approaches the crossing from the east on Belt Line, beginning at a distance of 1,500 feet; and defendant’s exhibits 1, 2 and 3 depict the crossing as viewed from the east on Belt Line some 500, 200 and 100 feet away. There is a standard railroad warning sign erected by the Texas Highway Commission on the right of such highway 489 feet east of the grade crossing; also a statutory crossarm warning sign at left or south side, was present on defendant’s right of way. Addison Road, a public highway, to the north intersects Belt Line Road 150 feet east of the crossing, and Inwood Road, running north from Dallas, intersects Belt Line some 85 feet west of the crossing.

The train involved was No. 318, destination Commerce, Hunt County, leaving Dallas at 7:55 P.M., with crew of engineer, fireman, conductor, head and rear brakemen, arriving at Addison approximately 8:30 P.M., at which place the connection occurs with Fort Worth train No. 18, the two trains stopping for an interchange of freight cars each night, train 318 consisting of two Aleo diesel locomotives, some 38 freight cars and a caboose. On the night in question the Fort Worth train was already there when train 318 drew up to the railroad junction point and stopped preparatory to switching operations, with caboose and one car south of Belt Line Road crossing, one car standing on the crossing and another partially occupying same. This caboose, immediately south of crossing, was equipped with lights reflecting green on three sides and red at the rear; interior thereof lighted with an oil lamp. Only a minute or two had elapsed (Engineer Wilcox having just detached his engines “to do our switching”), when the collision occurred.

David Duffy and friend Irving A. Hoff were skating enthusiasts and earlier the same night had been at a rink in suburban Vickery. Hoff proposed a trip to Lewis-ville, Denton County, to see a new type rink, both leaving in Hoff’s 1941 four-door Chevrolet car, proceeding to Belt Line Road via Preston Road, at an intersection a mile and a half east of the involved railroad crossing. The night was moonless, but cold and clear, no weather conditions that would interfere with visibility in driving on the highway — such as mistiness or rain. As they approached Addison, according to Duffy, the lights on the Hoff car were on low beam and good, brakes good, with no traffic on the highway. Both knew the railroad crossing was there, having traveled Belt Line before.

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St. Louis, Southwestern Railway Co. of Texas v. Duffy
308 S.W.2d 202 (Court of Appeals of Texas, 1957)

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Bluebook (online)
308 S.W.2d 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-louis-southwestern-railway-co-of-texas-v-duffy-texapp-1957.