Home/Court of Appeals of Texas/St. Louis, Southwestern Ry. Co. v. United Transports, Inc.

St. Louis, Southwestern Ry. Co. v. United Transports, Inc.

232 S.W.2d 241, 1950 Tex. App. LEXIS 2299
CourtCourt of Appeals of Texas
DecidedMay 19, 1950
DocketNo. 14227
StatusPublished
Cited by1 cases

This text of 232 S.W.2d 241 (St. Louis, Southwestern Ry. Co. v. United Transports, Inc.) 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 Ry. Co. v. United Transports, Inc., 232 S.W.2d 241, 1950 Tex. App. LEXIS 2299 (Tex. Ct. App. 1950).

Opinions

CRAMER, Justice.

Appellees, United Transports, Inc. and A. D. Easlon, driver of the truck involved, instituted this action against appellant to recover damages growing out of a collision between appellees’ truck and trailer loaded with four automobiles, and a -train of appellant Railway Company, which occurred at a public crossing in the town of Lavon in Collin County. The Texas Indemnity Insurance Company intervened, seeking recovery by subrogation for compensation and medical expense paid by it to Easlon. The Railroad, by cross-action, sought recovery for damage to its locomotive. Ap-pellees- pled that the crossing was an unusually hazardous and dangerous one; pled four specific grounds of negligence and discovered peril. Appellants pled eleven specific acts of contributory negligence. The jury found the negligence issues pled by appellees and the discovered peril issues against appellant; four sets of contributory negligence issues against appellees; and awarded damages of $9,750 to United Transports, Inc.; $5,332.83 to A. D. Easlon; and $817.17 to Texas Indemnity Insurance Company. On the verdict the trial court rendered judgment for appellees and against appellant for the several sums found by the jury. Appellant duly perfected this appeal and the cause is now properly before us for review.

Appellant assigns five points of error in substance, (1) appellee, having pled that it was a foreign corporation, was bound to plead and prove that it had a permit to do [243]*243business in Texas; (2) the definition of “discovered peril” under the facts here should have included the element of Eas-Ion’s ability to extricate himself; (3) insufficient evidence to raise the issue of dangerous crossing; (4) error in not limiting the jury on; the issue of discovered peril to a time immediately prior to the collision; and (5) error in not disregarding the findings and in not rendering judgment in its favor.

The first point is overruled on the authority of Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253. Appellees’ petition alleges an interstate transaction, to wit, the transportation of the automobiles from Memphis, Tennessee, to Dallas, Texas, and, the pleading not disclosing that appellees were doing an intrastate business, appellant, by not specially setting up in proper pleading the issue of intrastate business, waived the issue.

Point three raises the issue with reference to the crossing in question being a dangerous one, as pled by appellees and found by the jury. The jury found both appellant and appellees guilty of negligence which proximately caused the accident; and, in view of such findings, any error in improperly submitting such negligence issues, which could not have affected the result, was harmless since the judgment here can be upheld, if at all, only by the issues on discovered peril. Point three is overruled.

Points two, four and five assert that the definition of “discovered peril,” under the facts in this case, should have included the element of Easlon’s ability to extricate himself and should also have limited the jury to time immediately before the collision; and further that the court should have disregarded the jury findings to the issues and rendered judgment for appellant. The issues, 11 to 16, inclusive, on discovered peril, establish the following facts: (11) That prior to the collision A. D. Easlon and the truck were in a perilous position; (12) that the engineer of defendant’s train actually discovered that Easlon and the. truck were in a perilous position and realized the danger thereof; (13) within such time and distance as that by the exercise of ordinary care and the use of all means at his command, consistent with safety to himself and the train and the other persons therein, he could have avoided the collision; (14) that after discovering the peril of Easlon and the truck and after realizing their peril, he failed to exercise ordinary care and the use of all means available to him to avoid the collision, consistent with safety to himself, the train, and the other petsons on the train; (15) that such failure was negligence (16) which was proximate cause of the collision in question.

“Perilous position” was defined in the charge as follows: “In connection with the term ‘perilous position,’ you are instructed that, in order for a person to be in a perilous position, it is not necessary that bodily injury will certainly be suffered by him. He is in a perilous position whenever he is pursuing a course which probably will terminate in serious bodily injury to him.” Appellant’s objection to the definition was as follows: “Defendant excepts and objects to the definition of the ' term ‘perilous position,’ in that said definition as given ignores the necessary element that plaintiff must actually be in immediate peril, and, second, because said definition ignores the element as to whether or not the plaintiff will probably be able to extricate himself from such position of peril. In this connection, defendant tenders herewith a proper definition of ‘perilous position’ and requests the court to give same as Defendant’s Special Requested Instruction No. 1.” Appellant’s requested definition was as follows : “You are instructed that by the term ‘perilous position,’ as used in this charge, is meant that a person is then and there in danger of death or serious bodily injury, and from which position he cannot and probably will not extricate himself.” And its requested issue was: “Do you find from a preponderance of the evidence that immediately prior to the collision, and on the occasion in question, A. D. Easlon and the truck were in a perilous position?”

The railroad right of way and the crossing involved, under the record here, are correctly shown by the following drawing and picture, to wit:

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254 S.W.2d 843 (Court of Appeals of Texas, 1952)

Cite This Page — Counsel Stack

Bluebook (online)
232 S.W.2d 241, 1950 Tex. App. LEXIS 2299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-louis-southwestern-ry-co-v-united-transports-inc-texapp-1950.