Hines v. Roan , 230 S.W. 1070 ( 1921 )

I give the following reasons for my dissent from the judgment of my Brethren, reversing this case:

1. Twice before (Railway Co. v. Harrington, 209 S.W. 685, and Railway Co. v. Peveto, 224 S.W. 552) we have reviewed the facts of this crossing. We there held that the question of contributory negligence was for the jury. The material difference between the facts of these three cases is that Mrs. Roan could have seen the train a greater distance from the crossing. If contributory negligence was a question of fact in the Harrington and Peveto Cases, I cannot escape the conclusion that it was a jury question in this case.

2. In setting aside this verdict, my Brethren are in direct conflict with all the holdings of this court on similar facts since I have been on this bench. The Harrington and Peveto Cases, above referred to, are in point on this proposition. The Patella Case, 222 S.W. 615, in which Mr. Chief Hightower wrote the opinion, is much more in point. In that case he said:

"We could not consistently, in view of the expression of Judge Phillips, hold that Patella was guilty of contributory negligence as a matter of law, although we conclude as a fact, from all the evidence of his companions who testified on the trial, that neither he nor any of them looked or listened for an interurban car that might be approaching the crossing at the time Patella and his companions were approaching and attempting to make the same, nor did they use any other efforts to ascertain whether they might approach and make said crossing with safety to themselves."

True, he also found that there were some slight obstructions to the view of the approaching car; for instance, a line of telegraph poles 150 feet apart — we have that in this case — and some small palms. But he further found that the mortorman saw the men in the car, saw they were not watching for his approach, and blew the whistle as a warning. If the mortorman could see the men in the car, it would seem that they could have seen him. He also found that —

"The evidence also showed that the automobile was an open car, and there was nothing about the car itself to prevent the occupants from seeing the approach of appellant's interurban to the crossing had they looked in that direction. The evidence further shows that the occupants of the car were doing nothing out of the ordinary while driving along in the direction of the crossing, but were conversing and acting as persons usually do in driving along."

I am sure that neither he nor Mr. Justice O'Quinn would assert the proposition that an obscured crossing relieves one approaching it from the exercise of due care. As appears from the above quotation, he found that Patella and his companions used no effort to discover the approach of the car, and yet sustained the verdict acquitting them of contributory negligence. I am not able to follow my Brethren in the logic which sustains the verdict of the jury in that case, and on the slight distinction in the facts of these two cases convicts this jury of "bias or prejudice or some other improper motive."

Let us concede that Mrs. Roan was guilty of negligence in all of the respects submitted under question 8. They could have so believed, and yet acquitted her of contributory negligence, on the ground that such negligence was not the proximate cause of her death. We held against this proposition in the Harrington and Peveto Cases, above cited, and also in the Pearson and Skinner Cases (224 S.W. 708 and 713, respectively), but the Supreme Court granted writs of error in the last two cases in such emphatic terms that we have followed their notation in Kirby Lumber Co. v. Scurlock, 229 S.W. 975, and Railway Co. v. Diaz, 234 S.W. 919. Neither of these cases has yet been officially reported. In the Scurlock Case he was found guilty of negligence by the jury in riding his velocipede on the railroad track ahead of an approaching train, knowing that, at the most it could be only a short distance behind him, but the jury found further that such negligence was not the proximate cause of his death. My Brethren joined me in sustaining that finding. In the Diaz Case we sustained the trial court in refusing a proper issue, submitting to the jury the negligence of Diaz, on the ground that it did not submit the issue of proximate cause. Diaz walked in front of an approaching engine, without the slightest obstruction to his view. The facts of that case may make a stronger defense against the charge of negLigence than the facts of this case, but on a finding of negligence I am unable to see any difference on the issue of proximate cause.

This reversal is against the great Weight of the current authority of this state on similar facts. Some of these cases I cited in the original opinion of this court. Sr. Chief Justice Hightower referred to the Trochta Case in his Patella opinion. The opinion of the Court of Civil Appeals in that case states that there was no obstruction to Trochta's view after he reached the railroad right of way. There was a small tree and telegraph poles, but they found it did not obstruct his view. On the facts thus summarized, Chief Justice Phillips said:

"The question as to whether, under all the circumstances, Trochta was guilty of negligence in not looking or listening for the train, was for the jury."

As I construe the facts of the cases cited in our original opinion, some of them are much stronger against the injured party than the facts of this case; yet able judges, with the express approval of the Supreme Court, have sustained the verdicts of the juries in those cases.

4. My Brethren have convicted this jury of "bias or prejudice or some other improper motive." On what grounds?

(1) Because the jury found that the whistle was not blown and the bell was not rung. They find there was no positive testimony to that effect. Our original opinion quotes in full the testimony of Hare on this point. It seems to me that what he said comes clearly within any definition that could be given of positive testimony. But suppose it was against all the testimony. In the Patella Case, above referred to, we held that one of the findings of the jury was against all the testimony, and instructed the trial court not to submit it on another trial, unless the facts were different, but we did not intimate that the jury which made that finding was prompted by "bias or prejudice or some other improper motive."

(2) Because of the excessive verdict for the death of the little boy. Too often we order remittiturs on the ground of excessive verdicts to convict this jury of such serious charges on that finding.

(3) Because of the finding of the jury on issue No. 12, which is given in the original opinion and in Justice O'QUINN'S opinion. In their criticism of this finding they have overlooked a presumption which the jury had the right to indulge. Judge Jenkins said in Railway Co. v. Price, 222 S.W. 628:

"If there were any facts or circumstances which might have existed, the existence of which was not excluded by the testimony, the jury might have been justified in indulging the supposition that such facts did exist."

This principle is well sustained by the following authorities: Railway Co. v. Fred, 185 S.W. 896; Railway Co. v. Petty, 145 S.W. 1195; Railway Co. v. Stalcup, 167 S.W. 279; Railway Co. v. Levyson, 113 S.W. 569.

One could scarcely think of a more extreme statement of facts than those revealed in the Price Case to which to apply this principle. In this case appellant has made no statement showing Mrs. Roan's view of a train approaching from the other end of the track. My Brethren quote no testimony showing such view. They have not considered this presumption. If necessary to sustain this judgment, we should indulge the presumption that such view was obscured, in the absence of an affirmative showing that it was not. The duty rested on Mrs. Roan to watch for a train from that end of the track, and if, in attempting to protect herself from injury in that direction, she was forced to approach so close to the track that she was unable, in the exercise of ordinary care, to avoid a collision from the train coming from the other direction, this judgment should not be impeached. This presumption raised this as an issue of fact, and it is sufficient, in my judgment, to save the verdict from the criticism made of it by my Brethren. Is this presumption against the admitted facts? Some of the witnesses testify that Mrs. Roan looked up the track towards the approaching train. As to when she did this, the testimony is a little uncertain. We cannot presume that she willfully committed suicide and murdered her, little boy and mother-in-law. Then, in the face of this record, as revealed by the statement given by Mr. Justice O'QUINN, the jury could have found that she looked in the direction of the approaching train when it was not within her view, or at a time when it was too late to avoid the collision.

(4) Quoting from Justice O'QUINN'S opinion:

"It was broad, open daylight, nothing to obstruct the view, nothing in the record to show bad places in the street or other things to require Mrs. Roan's attention away from the crossing where the train was approaching, nothing to prevent her from exercising ordinary care for her own safety that the law requires she should exercise."

Well, it was broad, open daylight in the Trochta, Kirksey, Patella and Price Cases, supra, with nothing at all to obstruct the view on the Price Case, and practically nothing in the Patella and Trochta Cases. No bad road was shown in the Kirksey Case, the only excuse offered being that his attention was called from the danger by some one who wanted to take a ride with him in his automobile. The facts given by us in our original opinion, under the first ground, excusing Mrs. Roan of contributory negligence as a matter of law, seem to me to present a stronger case in her favor than do the facts in the Trochta Case.

5. My Brethren have taken out of this case the issue that Mrs. Roan could have seen the approaching train, and in the exercise of ordinary care believed that she could cross in safety. Referring to this legal principle, they say (quoting from Chief Justice HIGH-TOWER'S concurring opinion):

"Such decisions, however, have no application in this case, either as made by the evidence or as found by the jury."

It is true the jury found against the issue, but, in my humble judgment, this issue was clearly raised, both by the testimony of Hare and by Miss Roan, quoted in the original opinion.