Galveston, H. H.R. v. Sloman , 244 S.W. 268 ( 1922 )

The law of this case was declared by this court through a full bench on the former appeal (195 S.W. 321); that decision was upheld by the Supreme Court in its refusal of a writ of error, and was tracked by the court below in the trial from which the present appeal proceeds; unwillingness on the part of this member of this tribunal to now strike down that determination and set at naught both the solemn verdict of another jury and the deliberate and orderly action thereon of the trial court calls, under the statute, for this statement of the grounds of that dissent. In brief they are these: On a record of fact decidedly less potential for liability against the railroad company than is presented under a jury's findings in the present instance, this court before unanimously held the question of whether or not Sloman's peril was discovered by the operatives of the train in time to have avoided injuring him by the exercise of ordinary care in using the means at their command to be one for the jury; now, when a jury, pursuant to that opinion, has been allowed to find the facts leading to a solution of that inquiry, a majority of this court, on no better warrant, it seems to the dissentient member, than the casting into the discard of the evidence on which those findings rested and the adoption instead of testimony the jury refused to accept, have nullified the jury's verdict and determined the cause against liability themselves. Where lies authority for such action? The majority opinion recites:

"The only issues presented for our decision are: First, did the operatives of the train discover the peril of the deceased, Wiley Sloman, in time to prevent the collision, which resulted in his death, by the use of the means then reasonably at their command; and second, if such discovery was made, did said operatives thereafter use ordinary care to put in use all the means then reasonably at their command to prevent the collision?"

I respectfully suggest that those issues were for the jury to decide, not this court.

It is next declared:

"(1) There was no evidence showing that the operatives of the locomotive, after the discovery of the peril of the deceased, Wiley Sloman, if there was such discovery, could, with the means at their command, have prevented the collision; (2) there is no evidence to support the findings of the jury that at the time the peril of the deceased was discovered the locomotive was 385 feet from the point of collision, and that the automobile driven by the deceased was only 40 feet therefrom, and such finding is against the great weight and preponderance of the evidence." (The underscoring is my own.)

In sincere respect, but with much emphasis, both these conclusions are here challenged; on the contrary, the assertion is ventured that there lies in the body of the evidence ample support for each of the jury's findings, indeed, that it so strongly preponderates the other way as to leave this court without the power to set those findings aside. Of course, it is a question of law as to whether there is any evidence to support a jury's verdict, and the court may also interfere where the great weight and preponderance of it is so against the verdict as to make the result thereby reached clearly wrong, but how either of these conditions can be said to obtain here, in the state of this proof, I confess myself unable to see.

It is freely conceded that the issue on the facts was a close one, but no closer, indeed not so much so as before, when this court said there was still room for the exercise of a jury's province.

At the outset, I put behind me all question as to whether the operatives, with the means at hand could have prevented the collision, provided they discovered the peril when their engine was yet 385 feet away, because the undisputed evidence showed that in just about that same distance after the collision, when none of the controls were applied until almost the same instant it occurred, the train was brought to a full stop, and therefore, of course, they could have.

In the next place I affirm that the evidence was clearly sufficient to support findings: (1) That the operatives of the engine did discover the peril at a time when it was at least possible by the exercise of ordinary care in the use of the means at their command to have avoided the accident, and that they did nothing until it was too late; (2) that the circumstances as a whole were such as to justify a refusal to accept the versions of the occurrence by the unfortunate engineer and fireman, upon which, apparently, the majority so much rely in reaching their conclusion; (3) that it was at least possible, under a reasonable interpretation of the testimony adduced and the jury's verdict thereon, for the collision to have occurred as they in effect found it did, while it could not have happened at all, if the statements of the engineer and fireman are to be taken at face value.

A brief incursion into the evidence bearing consecutively upon these suggestions is invited:

The engineer, S. G. Works, swore:

"I don't remember that the fireman said anything to me previous to the accident; he did not call to me or yell to me previous to the accident, but did just as the accident occurred. I heard the crash almost the same instant that the fireman called to me — you might say the same instant. Then I applied the air and stopped the train. * * * My answer to that was, that the collision and the notification that I got was almost at the same instant. * * * I did not check speed for the crossing at all. * * * I think it was between 3 and 4 telegraph poles that the train was stopped; that we did stop — that is, air applied in emergency; that is my recollection; I would not say positively, but that is my recollection."

Mrs. Louise Smith testified:

"After the accident the train stopped almost in front of my door. I was about 1 1/2 blocks from the place when the collision occurred. * * * The train stopped as soon as it could after it struck the automobile, and stopped just in front of my door, which is about 1 1/2 blocks from the crossing."

It was otherwise shown that the telegraph poles were 110 feet apart, so the distance within which the train actually stopped after the accident was somewhere between 330 and 400 feet, a balance between which limits gives precisely the 385 feet the jury said the engine was distant on the other side when the discovery of Sloman's plight was made; on the other feature the engineer reiterates that he put no controls on until about the same instant with the collision. So the train could have been — because it actually was — brought to a full stop within 385 feet, and this takes no account of the other means at hand, such as warnings by bell, whistle, or the blowing off of steam.

It is but a postulate to say that there could have been no peril as long as the two conveyances were moving 60 feet apart along parallel lines in the same direction, nor until Sloman turned at the corner to start across the railroad track; at page 324, paragraph 5, 195 S.W., of this court's opinion on the former appeal, that was pointed out; the inquiry is accordingly so narrowed, What does the evidence indicate that the engineer and fireman then knew, discovered, or realized? Unmistakably they knew both that Sloman was at the turning point and such other circumstances as to reasonably indicate that he intended to cross the railroad track in front of the train; they admit it themselves, or at the very least such contributing facts as make that conclusion a justifiable if not a necessary inference. The words of their own mouths condemn them; the engineer testified:

"I occupied the position on the right-hand side in the cab of the engine, and I had a clear open view ahead of me. R. C. Paul was on the left-hand side; he was fireman on my engine. I saw an automobile ahead of us as we approached the crossing; it was probably 3 or 4 telegraph poles, a distance of 3 or 4 telegraph poles ahead of us when I noticed it. There are 50 telegraph poles to a mile, I believe, and that would make the poles 110 feet apart, and make the automobile between 400 and 500 feet ahead of us. I don't remember that the fireman said anything to me previous to the accident; he did not call to me or yell to me previous to the accident, but did just as the accident occurred. I heard the crash almost the same instant that the fireman called to me — you might say the same instant. Then I applied the air, and stopped the train. I was just about on schedule time — probably a minute late, if I remember correctly. That was a regular Sunday train. I ran on the roads at other times, and was familiar with that road and that crossing. That crossing was used considerably. * * *

"The fireman had a window in front of him, but I don't remember whether or not it was open. When the window was closed, he could see through the glass. The openings on my side of the locomotive were unobstructed. * * * That crossing is the same as where the accident happened. It is the only crossing that can be used there by automobiles, as I understand it. I don't remember any other auto than the one that I saw just at the time of the accident or just before the accident.

"Q. At a distance of 400 or 500 feet you have a clear vision in front there that extends even beyond the smokestack, does it not, to right and left? A. Do you mean directly on the track ?

"Q. I mean aside from the track. A. That depends on how far from the side. I presume 400 or 500 feet in front of the engine at the distance of 50 feet from the center of the track, a person could see an object.

"I was on the right-hand side of the engine, and that is the side the throttle is on; also the emergency brake, and I was looking forward out of the window. When you are looking down the track the field of vision is more extensive than merely the parallel lines of the track."

R.C. Paul, the fireman, testified:

"I saw the automobile first, I should judge, about a mile before we got to the crossing; some place about a mile. I could not say for sure; it has been so long. I never paid much more attention to it. * * * I did not say anything to the engineer at that time. The automobile was on my side of the engine. I noticed the automobile again when they turned right around the corner afterward. It had been going all along a little bit ahead of us all the way. * * * After I saw the automobile I did not pay any further attention to it until I saw it turn to the right to go across. * * * I don't remember whether the automobile top was up or down, but I think it was up. I could not tell you how far the automobile was from the crossing at that time; it was in front of the engine; it was ahead of us all the time.

"I was on the left-hand side, and when I first observed the automobile it was ahead of us; whatever the distance was, it was ahead of us and going in the same direction. After I saw the automobile I did not pay any further attention to it until I saw it turn to the right to go across. Right before they come to the turn they was looking back at us, and I never paid any more attention to it. We have things like that to occur every day; when they look back at us we don't pay any more attention to them. When they did look back I looked and observed the occupants of the automobile looking back at us; that was on my side; I did not notice them wave their hand or anything of that kind; I just saw them looking back, and I never paid any more attention to them. * * *

"I first spoke to the engineer or gave him warning when they turned the corner, at the same time they hit. I didn't say the automobile top was up; I said I thought it was. I could not tell if the automobile slacked speed there; they were running parallel with us. I could not say whether we were ahead of them or behind them because they turned the corner just as they hit us. They were ahead of us before we got to the crossing. I could not say how far ahead of us they were. Things happened so quick I never had time to realize anything. I should judge the automobile was 3telegraph poles ahead of the train when the parties in the automobilelooked back; I don't know who it was that looked back, but I could see them looking back. I did not see anybody alongside of the track at the time; I did not see Mr. Ayers, and I do not know Mr. Verbeck nor Mr. McNary. I might have seen them and waved at them, but I don't remember — so far as people going to and from that church. I did not see those men in the automobile wave; I don't know Mr. Ayers; I did not see the men in the automobile wave at anybody; I never paid any more attention to them,"

It is quite true that the engineer further said that he did not see the automobile turn the corner, but in view, among other circumstances, of his unobstructed view, his seeing it a mile up the track, the fact that he was looking down the track ahead of him at the time and when so doing, at the distance he said the automobile was ahead of him, he could see an object 50 feet on either side of the center of the track, the jury were not required to believe him. Neither were they compelled to accept the fireman's quoted statement that the occupants of the automobile looked back "right before they came to the turn," because this was negatived by the other disinterested eyewitnesses W. N. Ayers and the sole survivor of the accident, Henry A. Smith. These were the only excuses offered by these trainmen for their confessed failure to do anything until just about the same instant of the collision; the engineer that he did not see the automobile turning at the corner — although he had eyes with which to see, was looking, and from his position had a range of vision that extended further from the railroad than the automobile could possibly have been — and the fireman that he saw the occupants of the automobile look back just before they turned, and paid no further attention to them. If therefore the jury had the right, under all the evidence, to disregard these explanations, appellant stands without a defense in this court, unless the mathematical argument adopted by the majority affords one. As to that, comment is made hereinafter. At this point the circumstances attending the accident come also from disinterested onlookers, the witnesses Ayers, Anthony, Verbeck, Mrs. Louise Smith, and Henry A. Smith, whose statements not only tend to affirmatively support the jury's findings, but clash in a number of material features with those of the two trainmen referred to. Only excerpts bearing on the matters now under consideration are here quoted:

Anthony testified:

"I saw the collision between the train and the automobile that Wiley Sloman was driving at the time. I had crossed the crossing and gone about 100 yards down the road when I heard the usual rumbling noise made by a running train. So I looked around to the back from the direction in which I was headed, and as I did so I saw the approaching train fully 150 yards, or a little more, down the track from the crossing coming in the direction towards Galveston, Tex., and at the same time I saw the automobile about 40 feet from the main line railroad track that runs over the crossing. The automobile was also headed towards Galveston, moving towards the crossing at the time I saw it, and just coming into the crossing at the turn of the road which leads over the railroad track. * * * When I first saw the train it was fully 150 yards, or a little more, down the track from the crossing, and the automobile at the time I first saw it was about 40 feet from the main line track that the train was on and that runs over the crossing.

"It was apparent to me when I first noticed the automobile that it was in danger of being struck by the train, unless the automobile stopped, or unless the train stopped. * * * I heard neither the engine whistle nor the ringing of its bell as it approached the crossing. I don't think the brakes were applied; I am pretty sure they were not, nor was any effort made, as far as I could tell, to stop or check the speed of the train after it was apparent that the automobile was in danger of being struck by the train. The locomotive engine was not shut off until after the collision. * * * I think the automobile was going slow enough to be able to stop in the distance after it turned to the right approaching the crossing and before it reached the railroad track."

Henry A. Smith, a passenger in the automobile, swore:

"I do not know whether or not Wiley Sloman, or any of the others in the automobile, knew of the approach of the train until too late to avoid being struck by the train. I myself did not know it. I myself did not know that it was approaching the crossing where we were struck. I knew nothing of the train or its approach until it struck us, wrecking the machine and killing all but myself. I heard neither any whistle blown or bell rung on the train as it approached the crossing where the machine was wrecked. Had the whistle been blown I think I would have heard it. * * * No signal or warning was given of the approach of a train as we approached the crossing of the track. Had we known the train was coming, I think we could have stopped the automobile in time to avoid being struck by the train, but, as before stated, I did not know. The result of the collision between the automobile and train was the wrecking of the automobile and killing of five of its six occupants; I being the only one not killed. * * *

"I do not know just how fast the machine was traveling for the mile before we came to the crossing, but I judge at about 18 miles an hour, and, upon coming to the turn in the road to cross the railroad track, we slowed down sufficiently to make the turn in the road a safe turn. To my knowledge the automobile was not racing with the train. I do not know what was the condition of the automobile. To the best of my knowledge we were not going over 18 miles an hour at any time between Lamarque and the turn in the road.

"There was no warning or signal whatever given us with respect to crossing or not crossing the railroad track. No signal of any kind was given, either by a flagman at the crossing or from the train itself. If there had been a flagman at the crossing we would have seen him, and if any whistle had been sounded by the train we would probably have heard it."

Mrs. Louise Smith testified:

"I heard no whistle. I could have heard it had it been blown. I heard the crash of the collision. I did not hear the whistle or bell. I can always hear the whistle on passing engines when they are blown, and I did not hear this whistle being blown or the bell being rung. I was near enough to the train to hear or see the bell, if it had been rung continuously as the train neared the place of collision. I was in the front window of my house, and could have heard the bell had it been rung and the whistle had it been blown. * * * Said shell road and crossing are much used; there is a great deal of travel over the road. It is the main and only road in the vicinity, and the travel is very heavy, especially on Sunday. * * * There was no obstacle in the way of the engineer or fireman seeing the danger as Wiley Sloman approached the crossing."

Verbeck's observations were:

"I was about 1 1/2 blocks from the place where the collision occurred. The whistle on the engine was not blown as the train approached near the crossing. The bell on the engine was not rung continuously. I was near enough to the train to hear or see the bell if it had been rung continuously as the train neared the place of collision. I could have heard the bell had it been ringing. My hearing is fairly good. I saw the engine as it approached the crossing. Nothing was between the train and myself. There is no reason why I should not have heard or seen the bell, if it had been ringing. * * * There was no obstacle in the way of the engineer or fireman on the train seeing the danger as Wiley Sloman approached the crossing. There was nothing between the train and the automobile. There was no danger signal by whistle or bell as the engine approached near the crossing. * * * I could see the fireman; he was leaning out of the window. He was on my side, and was looking ahead. I cannot say positively whether the engineer did or did not slacken the speed of the engine until after the collision; I don't think he did. I don't think he did slacken the speed at all from the time he passed the whistling post until after the collision."

Charles T. Sloman, brother of the deceased, testified:

"That automobile was not in good running order on the date of the collision; it had loose running rods. I can honestly say that the automobile could not make over 18 or 20 miles, or 23, miles, because it was in a condition that the connecting rods was biting the side of the crank casing, because I had taken a man that morning to the John Sealy Hospital, and I had to slow up several times to let the connecting rods cool off on account of the heating up.

"The automobile had two brakes, a foot brake and an emergency, and the brakes were in good order. I should judge the foot brake alone on that car could have stopped the car when going at a speed of 20 to 25 miles an hour in about 30 feet, and with the emergency brake also between 20 and 25 feet. With the car going at a speed of 18 miles an hour the car could have been stopped with the foot brake alone at about 25 or 30 feet, as I say, something like that, and with the emergency brake between 20 and 25 feet, about takes the length of the car. * * * This automobile made a noise on account of the connecting rods being loose, and it had a cut-out on it; if the cut-out was open it made more noise, if you run with it open."

W. N. Ayers testified:

"As the automobile came into the turn there, making that turn for the railroad track, its speed was slackened. * * * My location at the time relative to this crossing was about 150 yards north of the crossing on the west side of the shell road near the railroad track. I had a clear view of the crossing and what occurred at the crossing at the time of this collision; I could see. When the train passed the whistling post she continued in a direction nearer to me; she approached me. I didn't hear any bell rung on the engine. My hearing is tolerably good. There was nothing between me and the train as it approached. The train passed as close as about 70 feet to me. I can hear a bell on a train at 70 feet distance. The whistle on that engine was not blown at any other time as it approached that crossing, except at the whistling post, and not thereafter.

"I was standing on the west side, northwest of the crossing about 150 yards of the crossing, on the other side, and I was talking to Mr. Fred Verbeck. He came up there on his motorcycle, and stopped there at the right of way fence, standing there talking. I didn't notice those parties coming in this automobile from up the road until the driver hollered at me and waved his hand; as he passed me he waved his hand. * * * Sloman, to have seen that train coming when he looked out and waved at me and was passing me, would have had to look back behind him to see the train coming. If he was sitting in the machine I would be on this side, and as he come along he would have to turn his head about like that to see that train. * * * After Sloman passed me I didn't see him look back, or anything just kept going ahead on right for Galveston or somewhere else; I didn't see him look back. * * *

"When Mr. Sloman passed me he saluted with one hand; I was west of the shell road and east of the railroad track; I was between the shell road and the railroad track; it is about 70 feet from the shell road, and he was going southeast; the railroad track was further that way, and as he passed he waved at me; he was then right opposite me, and the train was up by the whistling post, back behind; back behind the automobile. In order to see the train from the position he was in when he waved at me, Mr. Sloman would have to turn about halfway around. Facing this way, going into a southeasterly direction, he would have had to turn this way, about halfway around. The top of the automobile was up.

"When the automobile made the turn to cross the track it had to go about 30 feet or 40 feet to cross the first track where the collision occurred. The remark made that there was danger of a collision was made just as he turned, just as he was in the act of turning. * * *

"I know what positions the engineer and fireman occupy, respectively, usually; they are on opposite sides. They occupy such positions that either one or the other could have seen the automobile ahead of the train as it made the turn. * * * I do not know the exact rate of speed that the automobile was going or the train was going, and I am simply giving my best judgment. * * * The engine caught up with the automobile on the crossing at the time of the collision."

It thus appears from an abundance of the evidence that the jury were authorized to and no doubt did conclude that both the engineer and fireman saw the automobile when it turned the corner; confessedly neither did anything toward using any of the several means at hand to avoid the accident until it was too late; whether either of them had a right in the circumstances presented to assume that the automobile would not attempt to cross in front of the rapidly moving train was at the least a question for the jury; they certainly, in the absence of a scintilla of evidence indicating any such intention, could not speculate on whether it would stop or turn aside before reaching the crossing, but that is precisely what they did do; the rule so clearly stated by the Chief Justice of this court in Electric Co. v. Antonini, 152 S.W. 845, directly applies:

"That the motorman saw the boy approaching the crossing in time to have slackened the speed of the car and prevented the collision is clear from the evidence. If the manner in which the boy was driving was such as to reasonably indicate that he intended to cross in front of the car, it was the motorman's duty to at once use proper care to prevent the collision. He had no right to take any chance on the boy's getting across before the car reached him, nor could he speculate on whether he would stop or turn aside before he reached the track; there being nothing in the boy's action to indicate any such intention. In such circumstances we think ordinary prudence required that the motorman should act on the reasonable appearance of danger or peril to the appellee, and not wait until the danger was manifest and the injury unavoidable."

The judgment of this court was affirmed, and a writ of error refused.

The cases supporting this doctrine might be cited at length, but it is deemed unnecessary.

We turn to the final inquiry whether, with the proper use of the means at hand, it would have at least been possible to avoid the injury, for that is the measure of the requirement in this respect. Railroad Co. v. Sloman (Tex.Civ.App.) 195 S.W. 324, par. 6. This comprehends the included issue as to whether the accident could have occurred under the stated findings of the jury. There is no controversy over what the means were, nor their availability; these being the stopping or slackening the speed of the train, the sounding of the whistle, ringing the bell, the blowing off of steam. The remark of this court on the former appeal, applied to the present facts, by substituting the distance figures this time found, may appropriately be repeated here:

"Who can say that one shrill and almost instantaneous danger signal from either bell or whistle or both at the very moment the jury found the engineer or fireman realized or discovered that Sloman was thus approaching the crossing, and when they were about 385 feet apart, would not have averted the collision? Certainly this court cannot; and, as already stated, the jury have not. If such signal could have been both given and heard by Sloman at about that fateful moment, his automobile, under the undisputed testimony here, could have been stopped within half the 40 feet then intervening between it and that railroad crossing."

On this feature of the case the vice in the majority view, as occurs to me, is in assuming, in consonance with appellant's able arguments, that the minimum speed of the automobile after turning the corner, and with only 40 more feet to go, was 10 miles per hour. There is no such evidence; hence the conclusion rests upon a mere assumption. It stands in this record undisputed that the automobile slowed down for that cornersufficiently to make the turn a safe one, without specification of how slow a rate of speed that brought it down to. Moreover, the jury might well have found upon sufficient evidence, which has already been quoted here, that its speed for a mile before reaching the turn had not been over 18 miles per hour. Now I apprehend that if there is any state of facts in evidence under which the findings actually returned can be reasonably sustained, they will, in deference to the verdict, be deemed to have formed its basis. In connection with this consideration, there is no serious question with me that the 385 foot distance of the engine from the crossing found by the jury had ample support in the testimony; the bystanders, Verbeck, Ayers, and John Anthony, all fixed the distance at about 450 feet, and there is no wide variance between their estimates and the ones that must follow from the testimony of both the engineer and fireman; they each insisted that the automobile was ahead of the train, the fireman saying that it was about 3 telegraph poles, or about 330 feet, ahead just before it turned the corner at the 40-foot point, while the engineer put them 3 or 4 telegraph poles, or between 330 and 440 feet, apart during the time he saw the automobile. The jury had a right to reconcile these differences, and the resulting figure of 385 feet is neither unwarranted nor unreasonable.

That being so, the automobile could have been running after slowing down to make the crossing safely at a speed above 5 miles per hour, and yet the collision occurred, just as the jury found it did, under a rate of either 40 or 50 miles for the train, while, if the uncertain statements of the fireman and engineer are to be taken, there could have been no such occurrence. Neither of them fixed the speed of the automobile, but both said it kept ahead of them, the fireman saying he thought it was going about as fast as he was; hence, if at the time it turned the corner the train was even the minimum 330 feet of his and the engineer's estimate away and moving at either 40 or 50 miles an hour, it would have cleared the crossing before the train reached there.

Further discussion is deemed unnecessary. It seems to me that the verdict of a jury, although on special issues, should be construed as a whole, reasonably and liberally, and with a view that it should stand rather than fall. Dodd v. Gaines, 82 Tex. 429, 18 S.W. 618; Gulf, C. S. F. Railway Co. v. Baker (Tex.Civ.App.) 218 S.W. 7; Allison v. Chandler, 11 Mich. 542, 24 L.R.A. (N.S.) 70, footnote. The rates of speed and distance here involved were, from the nature of the case, estimates only, and not susceptible of mathematical accuracy, although stated by the jury in the terms of that exact science. They should therefore be so applied and harmonized as to uphold the obvious and well-sustained purpose of the jury, and that was to find, in obedience to ample evidence before them, that the exercise of ordinary care on the part of the trainmen in this instance both could and probably would have prevented the snuffing out of so many human lives.

In the firm conviction that substantial Justice has not been permitted to take its course in this cause, this protest over the refusal of this court to affirm the judgment rendered below is respectfully entered.