Charles Jack Barr instituted this suit in a district court of Dallas County, for damages sustained by two automobiles, and for personal injuries, alleged to have resulted from (1) a collision of an automobile driven by appellee and appellants' train, and (2) a subsequent collision, at some distance from the first, of another automobile driven by appellee, and a telephone post. It is alleged that the first collision occurred at the railroad crossing on Ervay Street, in the City of Dallas, as the result of defendants' negligence; and, that the injuries appellee there received were the direct cause, some hours later, of his losing consciousness and becoming incapable of operating and controlling the automobile in which he was then riding, resulting in the second collision, and further personal injuries and damage.
The specific acts and omissions of the defendant St. Louis Southwestern Railway Company, its agents and employees, alleged to have been negligent, proximately resulting in the accidents, are: (1) Operating the train involved across a public thoroughfare of the City of Dallas without adequate warning of the proximity and approach of such train; (2) no warning signal of any kind was maintained at said crossing, and no watchman or flagman stood there to advise the traveling public, and particularly the plaintiff, of the approaching train; and (3) no sounding of a
bell or whistle, or any other signal, or indication of any character, was given to warn of the approach of such train.
The defendants (appellants) answered by general denial and plea, in general terms, of contributory, inexcusable negligence of the plaintiff.
The case was submitted to a jury on special issues embodying the alleged specific negligence of the defendants and such contributory negligence of the plaintiff, as reflected by evidence and defendants' answer. The jury found defendants guilty of negligence, in the following respect: That, on the occasion in question, no employee of defendants gave any warning of the approaching switch engine and box cars, and that such failure was the proximate cause of the accidents; also found that defendants' employees in charge of the switch engine did give warning of the approaching engine and box cars, by ringing a bell and blowing a whistle. The jury acquitted plaintiff of all contributory negligence and assessed his damages at $1,400, apportioned — $1,320 for personal injuries, $45 damages to the automobile involved in the first collision, and $35 damages to the automobile involved in the second collision. On the verdict of the jury, the court entered judgment in favor of plaintiff for said sums, from which defendants have appealed.
The court's charge, in submitting issues 1, 2 and 3, embodying negligence proximately causing the first collision, in that no employee of defendant gave warning of the approaching train, is challenged as being too general to advise the jury of the nature of the inquiry. This was called to the court's attention by appropriate exceptions, before the charge was read to the jury. The issues read: "Special Issue 1. Do you find from a preponderance of the evidence that at the time and on the occasion in question there was no employee of the defendant giving any warning of the approach of the defendant's switch engine and box cars?" to which the jury answered "Yes"; then, special issues 2 and 3, whether such failure was negligence and proximately caused the first collision; to which, the jury answered "Yes".
It will be observed that issue 1 and the answer thereto embody in general terms all acts and omissions of negligence alleged against defendants, resulting in the collision of the trian and plaintiff's automobile, to the effect that defendants' employees failed to ring the bell, blow the whistle, give adequate warning, or maintain signals, watchman and flagman at the crossing. From such question and answer, manifestly, it cannot be determined readily in what particularity the jury found defendants' employees guilty. If the implication is that defendants' employees were guilty of failure to ring the bell and blow the whistle (and such interpretation evidently could be made of the findings), then such would be in conflict with the jury's further findings in response to special issues 4, 5, 6 and 6a, to the effect that defendants' employees were not guilty of negligence in those respects. The generality of the question submitted is the basis of appellants' assignment and, in our opinion, presents reversible error.
Appellants further assign error on such findings, as presenting the irreconcilable conflict. This is evident, and our conclusion finds support in appellee's brief, seeking to excuse the ill effects of such inconsistent findings, states that there is no evidence to sustain the special issues, and that questions 4 and 6a, relating to defendants' employees' failure to ring the bell and blow the whistle, were inadvertently submitted by the trial court. Absent objections to the court's charge, appellate courts must presume that the trial court acted in accordance with the evidence; therefore, in the light of the record, we must sustain the trial court in the submission of the issues.
A liberal interpretation of the evidence justified a jury finding on an issue of "unavoidable accident". In due time, appellants submitted an appropriate special charge embodying such issue, which was refused by the trial court. Unavoidable accident having been raised by the evidence, we think the court erred in refusing to submit the issue. The jury, having acquitted plaintiff of all contributory negligence in approaching the crossing where the collision occurred, could have, with due regard to the evidence and with propriety, acquitted the defendants of all negligence in the operation of its trian and maintenance of a watchman or flagman at the crossing. There is evidence that the train was backing toward the crossing at a rate of not more than 3 or 4 miles per hour; that the trainmen were keeping a proper lookout; that a flagman or switchman was standing at, or near, the intersection, and gave warning of the approaching train.
The track was clear to vision for 71 to 250 feet, according to distance away from the track at the intersection; no obstruction, under the control of the defendants, was there to prevent a person desiring to use the crossing from seeing the approaching train. On the other hand, appellee's version of the accident presents no negligence on his part; he was unable to see the approaching train until he was within 10 or 12 feet of the track, due to his view being obstructed by buildings, a large truck, and another automobile stationed near the track and between him and the approaching train. He testified that as soon as he saw the train, he applied his brakes and brought his car to a stop within a distance of about 12 feet; that he kept a proper lookout; and that he used ordinary care in approaching the crossing. Therefore, under such circumstances, the jury could, quite logically, have concluded that the collision was an unavoidable accident, that neither party was guilty of failing to exercise due care, and that the obstructions, over which neither had control, resulted in the collision.
If the evidence supports the finding that the collision was the result of some unknown cause, or in some manner which is not explained, or under circumstances differing from those relied upon and constituting a part of plaintiff's case, and which circumstances rebut the charge of alleged negligence for which defendant is responsible; and the jury could have found that neither party was negligent, then the issue of unavoidable accident is presented and should have been affirmatively submitted. Wichita Falls Traction Co. v. Craig, Tex. Civ. App.
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Charles Jack Barr instituted this suit in a district court of Dallas County, for damages sustained by two automobiles, and for personal injuries, alleged to have resulted from (1) a collision of an automobile driven by appellee and appellants' train, and (2) a subsequent collision, at some distance from the first, of another automobile driven by appellee, and a telephone post. It is alleged that the first collision occurred at the railroad crossing on Ervay Street, in the City of Dallas, as the result of defendants' negligence; and, that the injuries appellee there received were the direct cause, some hours later, of his losing consciousness and becoming incapable of operating and controlling the automobile in which he was then riding, resulting in the second collision, and further personal injuries and damage.
The specific acts and omissions of the defendant St. Louis Southwestern Railway Company, its agents and employees, alleged to have been negligent, proximately resulting in the accidents, are: (1) Operating the train involved across a public thoroughfare of the City of Dallas without adequate warning of the proximity and approach of such train; (2) no warning signal of any kind was maintained at said crossing, and no watchman or flagman stood there to advise the traveling public, and particularly the plaintiff, of the approaching train; and (3) no sounding of a
bell or whistle, or any other signal, or indication of any character, was given to warn of the approach of such train.
The defendants (appellants) answered by general denial and plea, in general terms, of contributory, inexcusable negligence of the plaintiff.
The case was submitted to a jury on special issues embodying the alleged specific negligence of the defendants and such contributory negligence of the plaintiff, as reflected by evidence and defendants' answer. The jury found defendants guilty of negligence, in the following respect: That, on the occasion in question, no employee of defendants gave any warning of the approaching switch engine and box cars, and that such failure was the proximate cause of the accidents; also found that defendants' employees in charge of the switch engine did give warning of the approaching engine and box cars, by ringing a bell and blowing a whistle. The jury acquitted plaintiff of all contributory negligence and assessed his damages at $1,400, apportioned — $1,320 for personal injuries, $45 damages to the automobile involved in the first collision, and $35 damages to the automobile involved in the second collision. On the verdict of the jury, the court entered judgment in favor of plaintiff for said sums, from which defendants have appealed.
The court's charge, in submitting issues 1, 2 and 3, embodying negligence proximately causing the first collision, in that no employee of defendant gave warning of the approaching train, is challenged as being too general to advise the jury of the nature of the inquiry. This was called to the court's attention by appropriate exceptions, before the charge was read to the jury. The issues read: "Special Issue 1. Do you find from a preponderance of the evidence that at the time and on the occasion in question there was no employee of the defendant giving any warning of the approach of the defendant's switch engine and box cars?" to which the jury answered "Yes"; then, special issues 2 and 3, whether such failure was negligence and proximately caused the first collision; to which, the jury answered "Yes".
It will be observed that issue 1 and the answer thereto embody in general terms all acts and omissions of negligence alleged against defendants, resulting in the collision of the trian and plaintiff's automobile, to the effect that defendants' employees failed to ring the bell, blow the whistle, give adequate warning, or maintain signals, watchman and flagman at the crossing. From such question and answer, manifestly, it cannot be determined readily in what particularity the jury found defendants' employees guilty. If the implication is that defendants' employees were guilty of failure to ring the bell and blow the whistle (and such interpretation evidently could be made of the findings), then such would be in conflict with the jury's further findings in response to special issues 4, 5, 6 and 6a, to the effect that defendants' employees were not guilty of negligence in those respects. The generality of the question submitted is the basis of appellants' assignment and, in our opinion, presents reversible error.
Appellants further assign error on such findings, as presenting the irreconcilable conflict. This is evident, and our conclusion finds support in appellee's brief, seeking to excuse the ill effects of such inconsistent findings, states that there is no evidence to sustain the special issues, and that questions 4 and 6a, relating to defendants' employees' failure to ring the bell and blow the whistle, were inadvertently submitted by the trial court. Absent objections to the court's charge, appellate courts must presume that the trial court acted in accordance with the evidence; therefore, in the light of the record, we must sustain the trial court in the submission of the issues.
A liberal interpretation of the evidence justified a jury finding on an issue of "unavoidable accident". In due time, appellants submitted an appropriate special charge embodying such issue, which was refused by the trial court. Unavoidable accident having been raised by the evidence, we think the court erred in refusing to submit the issue. The jury, having acquitted plaintiff of all contributory negligence in approaching the crossing where the collision occurred, could have, with due regard to the evidence and with propriety, acquitted the defendants of all negligence in the operation of its trian and maintenance of a watchman or flagman at the crossing. There is evidence that the train was backing toward the crossing at a rate of not more than 3 or 4 miles per hour; that the trainmen were keeping a proper lookout; that a flagman or switchman was standing at, or near, the intersection, and gave warning of the approaching train.
The track was clear to vision for 71 to 250 feet, according to distance away from the track at the intersection; no obstruction, under the control of the defendants, was there to prevent a person desiring to use the crossing from seeing the approaching train. On the other hand, appellee's version of the accident presents no negligence on his part; he was unable to see the approaching train until he was within 10 or 12 feet of the track, due to his view being obstructed by buildings, a large truck, and another automobile stationed near the track and between him and the approaching train. He testified that as soon as he saw the train, he applied his brakes and brought his car to a stop within a distance of about 12 feet; that he kept a proper lookout; and that he used ordinary care in approaching the crossing. Therefore, under such circumstances, the jury could, quite logically, have concluded that the collision was an unavoidable accident, that neither party was guilty of failing to exercise due care, and that the obstructions, over which neither had control, resulted in the collision.
If the evidence supports the finding that the collision was the result of some unknown cause, or in some manner which is not explained, or under circumstances differing from those relied upon and constituting a part of plaintiff's case, and which circumstances rebut the charge of alleged negligence for which defendant is responsible; and the jury could have found that neither party was negligent, then the issue of unavoidable accident is presented and should have been affirmatively submitted. Wichita Falls Traction Co. v. Craig, Tex. Civ. App. 250 S.W. 733; Colorado S. R. Co. v. Rowe, Tex.Com.App., 238 S.W. 908; Russell v. Bailey, Tex. Civ. App. 290 S.W. 1108; Dallas Railway Terminal Co. v. Garrison, Tex.Com.App., 45 S.W.2d 183; Texas P. R. Co. v. Edwards, Tex.Com.App., 36 S.W.2d 477; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519; Orange N.W. R. Co. v. Luther Harris, 127 Tex. 13,89 S.W.2d 973.
Assuming that the Railway Company had no watchman or flagman at the crossing to warn the public of the approaching train, as may be implied by the jury's response to issue 1, — that "no employee gave any warning", under settled rules of law in this state, such would not, in our opinion, preclude a necessity for submission of unavoidable accident, if raised by testimony. The error of the trial court in refusing to submit the issue is not cured by findings of the jury that defendants were negligent, and that such negligence was the proximate cause of the accident. Glazer v. Wheeler, Tex. Civ. App. 130 S.W.2d 353; El Paso Electric Co. v. Hedrick, Tex.Com.App., 60 S.W.2d 761; Dallas Ry. Terminal Co. v. Garrison, Tex.Com.App., 45 S.W.2d 183.
Appellants raise the further question that there is not sufficient evidence of liability of the Railroad Company for the injuries and damage to plaintiff in the second collision; and that the trial court erred in refusing to submit special issue limiting liability to the first accident. Plaintiff, apparently without personal injury, drove his automobile from the scene of the first collision to his father's home, located several blocks away, rested, ate supper, and, while there, experienced some pain and headache which were allayed by sedatives. Thereafter, for the purpose of driving some two miles, or more, to his home, he entered another automobile and while enroute, lost consciousness and collided with a telephone post. There is no showing that plaintiff was suffering any ill effects from the first collision at the time he entered the second automobile; he entered it of his own free will; there was no urgency; he was under no compulsion or necessity to travel under such circumstances. There is no evidence that his unconsciousness, resulting in the second collision, was caused by the first collision, or that same was not superinduced by sedatives, or other causes. The independent intervening events leave to conjecture any causal connection between the two collisions. We think the jury should have been instructed specifically, in accordance with the charge requested by defendants, that no injuries sustained in the second collision could be considered in arriving at their verdict. The plaintiff, seemingly, did not know what occurred at the second collision. All expert medical testimony was, in effect, that plaintiff's injuries resulted from both accidents. The argument is not sound, which seeks to trace the immediate cause of plaintiff's injuries to the second collision, through previous stages of mental abnormality, physical suffering and medical treatment, following the first accident. Texas N. O. R. Co. v. Murray,63 Tex. Civ. App. 340, 132 S.W. 496.
On another trial, if the evidence is the same as here presented, liability of the defendants should be limited to the first accident by appropriate charge of the trial court.
The judgment of the court below is reversed and cause remanded.
Reversed and remanded.