Summary
applying Rogers and Knight to sight restrictions caused by weeds and bushes along the right-of-way
Summary of this case from Missouri Pacific v. LimmerOpinion
No. 3480.
June 7, 1928. Rehearing Denied August 2, 1928.
Appeal from District Court, Cass County; R. T. Wilkinson, Judge.
Action by Irene Oden and others against the Texas Pacific Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed.
The surviving wife and parents of Milburn Oden, deceased, brought the suit against the railway company for the recovery of damages for the alleged negligent killing of Milburn Oden at a grade crossing. Mr. Oden was driving an automobile in a westerly direction, and upon reaching the crossing he was killed by a passenger train running in a southerly direction across the public roadway. The roadway intersected the railway track at a point about one-half mile beyond the town of Queen City. The negligence alleged was: (1) In permitting bushes and shrubbery to grow and remain on the embankment of the right of way, obstructing the view of a traveler on the roadway of trains approaching the crossing from the north, and in running the train at an excessive rate of speed, under the circumstances, at the place; (2) failure to comply with the statutory provisions of warning of ringing the bell and blowing the whistle at crossings; (3) failure on the part of the operatives of the locomotive to keep a proper lookout in approaching the crossing; (4) discovered peril.
The defendant set up acts and derelictions on the part of the deceased in approaching and using the crossing constituting negligence causing and contributing to cause his death. It was particularized that he knew of and was familiar with the crossing, and plainly saw that his view of the track on the north was obstructed, and did not stop and look to see that the crossing was safe before undertaking to drive upon it, and failed to use reasonable care to avoid the emergency then confronting him.
It appears that the railway runs practically north and south by the town of Queen City. Leading out of Queen City, on each side of and parallel with the railway track, are two public highways. The one on the east side of the track is called the Springdale road, and the one on the west side of the track is the Atlanta-Texarkana highway. At a point about half a mile north of Queen City a public road running in an easterly and westerly direction and leading from the Springdale road to the Atlanta-Texarkana highway crosses the railway track at right angles. This road is wide, smooth and gradually upgrade from the Springdale road to the railway track which it crosses. This is the railroad crossing involved in the present suit. It is 50 feet from the Springdale road to the railway crossing. The crossing itself is plainly visible to the traveler on the intersecting roadway, and is entirely unobstructed to the view of such a traveler. Some 25 feet or more from the road was a sign on a pole, in black letters, reading "Railway Crossing." On the pole was painted: "Look Out for the Cars." From the crossing north the railway track runs in a straight line for several hundred yards through a cut; and on the east there is an embankment on the railway right of way, consisting of earth removed in making the cut. The embankment is about 4 1/2 feet high, and extends down for some considerable distance along the right of way and the north side of the public highway. On the embankment were persimmon and sassafras bushes about two feet high, and high weeds and grass, which practically entirely obstructed the view of a train approaching the crossing from the north until a person traveling on the roadway reached a point within three yards of the crossing.
The deceased was killed under substantially the following proven circumstances: On September 7, 1926, about 4 o'clock in the afternoon, the day being bright and clear, Milburn Oden and M. C. Glass left Queen City in an open touring car, Mr. Oden driving the car. They traveled north on the Springdale road until they reached the road leading west over the railway crossing to the Atlanta-Texarkana highway, when they turned to the left on that road. Upon turning on that road, and before reaching the railway crossing, they slowed down to a rate of speed of about five miles an hour. The crossing was straight ahead and unobstructed and plainly to be seen. At a point within three yards of the crossing they discovered a passenger train nearly to the crossing, and both jumped from the automobile in which they were riding. Mr. Glass miraculously escaped injury, but Mr. Oden either fell or jumped upon the railway track and was instantly killed. The automobile was wrecked. The passenger train was the fast mail, running 15 minutes behind schedule time and at the rate of 40 miles or more an hour. Mr. Glass testified that he and Mr. Oden before going on the crossing listened for an approaching train, but did not hear one. It was undisputed that they never stopped the automobile before going on the track. It was shown that Mr. R. W. Carter, a farmer, who was traveling in a two-horse wagon and going south on the Springdale road, heard the train coming and stopped his team just north of where the road passing over the crossing leaves the Springdale road. Mr. Carter saw the deceased as he was driving his car and approaching the track, and saw the collision when it occurred. According to the testimony of Mr. Carter, the train whistled in approaching the crossing, and he heard it and stopped. The evidence, however, was conflicting as to whether the operatives of the locomotive rang the bell and blew the whistle in approaching the crossing. The evidence of Mr. Glass, the surviving occupant of the car, as material, may be quoted:
"For two or three hundred yards before we approached the crossing the railroad was on our left. * * * On the side of the road we were traveling the embankment of the railway was grown up with bushes, weeds, grass and brush that obstructed the track at the crossing; that is, you could see it (the track) before you got to it. But when you got closer to the crossing you could not see it (the track) so well, for the bushes and weeds were too high. It is about 50 feet from the point where you turn in the road to go on the crossing that you cannot see a train approaching the crossing because the high brush and weeds on the railway embankment are in the way. You could not see an approaching train until you reached within three yards of the crossing, and then you could look up the railroad and see it. We were traveling about five or six miles an hour when we drove on the crossing. I don't remember whether I was looking to see if a train was approaching. If there had been a train coming we could not have seen it at all until we got within a short distance (three yards) of the crossing. We were nearly on the track (three yards off) when we first saw the train; and the only thing we could do was to jump, and we did that as quick as we saw the train. At the first point where I could see the train I saw it, and jumped immediately. I jumped and then ran ahead of it off the track. Mr. Oden got out the same door I did, and he fell and didn't have time to get up before being struck by the train. I did not hear any bell ring or whistle blow. While we were driving the car we were not doing anything at all; we were not making any noise nor laughing; there was no conversation between us. * * * We didn't stop and we didn't slacken the speed (of five miles an hour). The curtains of our car were up. * * * I knew that was a railroad crossing. I knew that a great many trains ran over it. I knew that this train was a regular passenger train, and that it was about time for it to be due."
It was proven that Mr. Oden, the driver of the car, was in the employ of the Allday Motor Company as salesman. The garage of the motor company is located at Atlanta and one block from the railway track. The crossing in question is about 2 1/2 miles from Atlanta. The deceased, it appears, was practically reared in Atlanta. It is not contended in the evidence that he was unfamiliar with the crossing and the surroundings.
The case was submitted upon special issues. The findings of the jury as to alleged negligence of the company are substantially that (1) the operatives of the locomotive rang the bell and sounded the whistle and were not guilty of negligence in failing to ring the bell and to sound the whistle; (2) the operatives of the locomotive by the exercise of ordinary care could not have discovered the deceased in time to prevent his death, and they did not fail to exercise ordinary care to avoid killing him; (3) the company was guilty of negligence, proximately causing the death of deceased, in permitting its right of way "to become grown up with weeds and bushes to such an extent that it obstructed the view of the deceased and prevented his seeing the approaching train"; but (4) the train was not operated at an excessive and negligent rate of speed, and it was not negligence to operate the train at the rate of speed done. The issues submitted and findings of the jury as to negligence of the deceased are:
"Special issue No. 14. Did the deceased, in approaching the railroad crossing in question, fail to use such a degree of care that a man of ordinary prudence would have used under the same or similar circumstances to discover the approach of the train and avoid collision therewith? Answer: Yes.
"Special issue No. 15. If you answer special issue No. 14 `Yes,' then was such failure negligence upon his part? Answer: Yes.
"Special issue No. 16. If you have answered special issue No. 15 `Yes,' then was such negligence a contributing cause of the collision and resulting death of the deceased? Answer: Yes.
"Special issue No. 17. Would an ordinarily prudent person under the same or similar circumstances which surrounded the deceased, Milburn Oden, when he was approaching the crossing at which he was killed, have stopped the car in which he was riding and driving before going upon said crossing in order to ascertain if a train was approaching such crossing? Answer: No.
"Special issue No. 18. Could the deceased, Milburn Oden, by stopping the automobile in which he was riding and driving before going upon the crossing where he was struck and killed have discovered the approach of the train which struck and killed him in time to have avoided injury therefrom? Answer: Yes.
"Special issue No. 19. Did the failure of the deceased, Milburn Oden, to stop the car in which he was riding and driving and look for the approach of the train at the crossing at which he was struck and killed before going thereon proximately cause or contribute to cause his death? Answer: Yes.
"Special issue No. 20. Could the deceased, Milburn Oden, by the exercise of ordinary care to listen for a train which might be approaching the crossing where he was killed, have discovered the approach of the train which struck and killed him in time to have avoided injury therefrom? Answer: No.
"Special issue No. 21. In approaching the crossing where he was killed, did the deceased, Milburn Oden, before going thereon, fail to exercise ordinary care to listen for the approach of a train to the crossing where he was struck and killed? Answer: Yes.
"Special issue No. 22. Would an ordinarily prudent man, under the same or similar circumstances which surrounded the deceased, Milburn Oden, when he was approaching the crossing at which he was killed, have, before going thereon, exercised ordinary care to listen for a train which might be approaching such crossing? Answer: Yes.
"Special issue No. 23. If you have answered special issue No. 21 `Yes,' then did failure, if any, of the deceased contribute to cause his death, or proximately cause his death? Answer: Yes.
"Special issue No. 24. Could the deceased, Milburn Oden, by the exercise of ordinary care to look for a train which might be approaching the crossing where he was killed, have discovered the approach of the train which struck and killed him in time to have avoided injury therefrom? Answer: Yes.
"Special issue No. 25. In approaching the crossing where he was killed, did the deceased, Milburn Oden, before going thereon, fail to exercise ordinary care to look for the approach of a train to the crossing where he was struck and killed? Answer: Yes.
"Special issue No. 26. If you have answered special issue No. 24 `Yes,' then did such failure if any, of the deceased proximately cause, or contribute to cause, his death? Answer: Yes.
"Special issue No. 26a. Would an ordinarily prudent man, under the same or similar circumstances which surrounded the deceased, Milburn Oden, when he was approaching the crossing at which he was killed, have before going thereon, exercised ordinary care to look for a train which might be approaching such crossing? Answer: Yes."
The court entered judgment on the verdict in favor of the defendant company. The plaintiffs have appealed.
O'Neal Harper, of Atlanta, for appellants.
King, Mahaffey Wheeler, of Texarkana, for appellee.
The appellants insist that the answers of the jury to the issues submitted to them are so contradictory and inconsistent with each other as to afford no proper basis for judgment in favor of either the plaintiffs or defendant. It is contended, first, that the company and the injured party both were found guilty of negligence, and that the negligence of each "proximately caused the injury"; that the finding that negligence of both parties was "the proximate cause of the injury" is inconsistent and amounts to no determinative finding of fact. It is believed that the trial court correctly determined that the appellants were precluded from recovery upon the findings of the jury as reasonably intended to be made by them. The jury made affirmative and unequivocal finding that the operatives of the locomotive blew the whistle and rang the bell in warning of the approach of the train to the crossing, and that the death of deceased did not proximately result from a failure of warning in these respects. There is evidence to support the finding. R. W. Carter, a farmer, who was traveling in a two-horse wagon and going south on the Springdale road, had already heard the warnings of the train's coming and had stopped his team just north of where the road passing over the crossing leaves the Springdale road. There is other evidence as positive as that. The jury next made affirmative and unequivocal finding, having support in the evidence, that the operatives of the train could not, by the exercise of ordinary care, have discovered the deceased was about to cross the track in time to prevent his death, and that there was no negligence on the part of the operatives of the train in that respect. The further issues, as submitted, read as follows:
"Do you find from a preponderance of the evidence that the defendant permitted its right of way on the date of the injury, and at and near where the injury was received, to become grown up with weeds and bushes to such an extent that it obstructed the view of the deceased and prevented his seeing the approaching train? Answer: Yes.
"If you answer such issue `Yes,' then state if such act constituted negligence on the part of the defendant. Answer: Yes.
"If you answer such issue `Yes,' then was such negligence the proximate cause which resulted in the death of the deceased? Answer: Yes.
"Do you find that the train which struck and killed the deceased was at the time running at a dangerous and excessive rate of speed? Answer: No."
The jury then further answered that the rate of speed at which the train was operated did not constitute negligence and was not the proximate cause of the injuries which resulted in the death of the deceased. Therefore the findings of the jury, reasonably construed as a whole, are to the effect that while the obstruction to the view of the railway track constituted negligence on the part of the railway company, and was the proximate cause of the injury, yet there was no negligent failure of the operatives to blow the whistle and ring the bell, and the train was not operated at a negligent rate of speed under the surrounding circumstances. Separated from these specific findings of absence of negligence in warning of the approach of the train and in the rate of speed, the further finding of negligent maintenance of weeds and bushes on the right of way near the crossing in such manner as to obstruct a view of the track, although the proximate cause of the injury, would not independently and of itself constitute actionable negligence to the traveler approaching the crossing. Railway Co. v. Rogers, 91 Tex. 52, 40 S.W. 956; Railway Co. v. Knight, 91 Tex. 660, 45 S.W. 556; Cowles v. Railway Co., 80 Conn. 48, 66 A. 1020, 12 L.R.A. (N.S.) 1067, 10 Ann.Cas. 481. In other words, in order to the establishment of the proposition that the negligence was the legal cause of the injury received, the several culpable acts or causes must concur to produce the injury, namely, negligent conditions in obstruction of the view, and negligent omission of precaution, in failure of warning of the approach of the train and in operation of the train. If there be no negligent failure of precaution in warning of the approach and in operation of the train, there is nonexistence of a legal connection between the negligence and injury. For the company's negligence only in obstruction of the view of the approaching train becomes merely a condition, as opposed to the efficient cause of the injury. It was plainly stated in the case of Rogers, supra, that:
"There is no law which declares it to be the duty of a railroad company to keep its right of way free from obstruction, and therefore the failure to do so cannot be declared as a matter of law to be negligence. It was a question of fact to be submitted to and found by the jury, whether under the circumstances the obstruction was such as to constitute negligence on the part of the railroad company and whether under the conditions existing then and there the railroad company exercised due care in the operation of its train for the protection of persons passing over its road."
In that case there was approved the following quotation from Cordell v. Railway Co., 70 N.Y. 119, 26 Am.Rep. 550:
"The obstructions in this case may, and perhaps should, have had a material bearing upon two questions: First, as to the contributory negligence of the plaintiff. If they prevented his seeing the approaching train until he arrived at the track, he would not be negligent for not seeing it before, and secondly, the fact of the existence of those obstructions, with the other surrounding circumstances, were proper to be considered upon the question of the degree of care and vigilance which the defendant was bound to exercise in the running and management of its train, and in giving warning of its approach. It cannot be an independent ground of recovery."
Again, in case of Railway Co. v. Knight, 91 Tex. 660, 45 S.W. 556, it was firmly stated that:
"In the case of Railway Co. v. Rogers [ 91 Tex. 52], 40 S.W. 956, we held that it is not negligence for" a railway company "to put on its right of way obstructions to the view of one approaching a crossing, whether the obstructions be placed there by" the railway company "for its own use, or by another, by the railroad's permission, to be used in connection with the business of the road; but it is merely a matter to be considered on the question" of "negligence in the operation of the train at the crossing."
Hence none of these findings of the jury may properly be considered as contradictory and inconsistent upon the preliminary issue of negligence vel non or upon the efficient cause of the injury. This ruling is decisive of the contention of appellants. If actionable negligence on the part of appellant may not be predicated upon the findings of fact made by the jury, as just determined, then any contradiction in the findings upon contributory negligence vel non would be immaterial.
It is true that in the findings of the jury on contributory negligence there may be apparent conflicts, but this was respecting only certain specific acts of the deceased. The controlling finding, as viewing the surroundings and the entire conduct of the deceased, was: "Did the deceased, in approaching the railroad crossing, fail to use such a degree of care that a person of ordinary prudence would have used under similar circumstances to discover the approach of the train and avoid a collision therewith?" To which the jury answered that the deceased did not use reasonable care, and that he was guilty of negligence which was "a contributing cause to the collision and resulting death of the deceased."
Thus, in effect, the jury were to determine, as a question of fact, in view of all the surroundings, whether the deceased was guilty of negligence in failing to look and listen for the train. The evidence amply warranted this standard of care on the part of the deceased in undertaking to use the crossing, and the jury found that he failed to look and listen to such an extent as was required under the peculiar circumstances. So that if the obstructions on the right of way was a proximate cause of the injury it was not the sole cause; and the deceased's derelictions, as found by the jury, contributed to the collision resulting in the tragedy of his death. The rule that contributory negligence bars a recovery is founded on the mutuality of the wrong.
One of the attorneys for the plaintiff made the opening argument for the plaintiff before the jury. At the conclusion of his argument the attorney for the defendant announced to the court, in the presence of the jury, that he would not avail himself of the privilege of arguing the case to the jury, but would merely submit it upon the charge of the court and the evidence without argument by him. Whereupon one of the attorneys for the plaintiff, who had not argued the case before the jury, requested the court to permit him to make further opening argument in the case. The court denied the request, and error is predicated thereon. It appears from the bill of exception that in the opening argument before the jury the plaintiffs' counsel "discussed fully the charges of negligence upon which the plaintiffs relied for a recovery, and the issues presented by the court for the jury to determine upon those points." In the circumstances the matter of permitting plaintiffs' attorneys to make another argument after the defendant's attorney had refrained from arguing the case was within the discretion of the court, and no abuse of such discretion is shown. An absolute right in appellants to have such further argument did not exist, in view of rule 36 of the district court. The rule reads:
"In all arguments, and especially in arguments on the trial of the case, the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side."
We have considered the other assignments of error, and think that they should be overruled.
The judgment is affirmed.