On Motion for Rehearing. Having made a careful review of the statement of facts and the facts recited in our opinion, the majority of this court have reached the conclusion that testimony of the witnesses Gladys Hargraves and others with reference to the question as to whether appellee could have seen and heard the approaching train which struck him, by the exercise of ordinary care, and other evidence of the same import, is not fully stated in our original opinion, and, as appellant by motion for rehearing complains of such statement, we here make the following additional statement.
It is shown by the undisputed evidence that the railway track of appellant, for several miles to the south of the public road crossing at which the accident occurred, runs practically north and south and parallel with, and a few hundred feet west of, said public road; that said public road, after running parallel with said railway for some miles, and about 250 feet east therefrom, turns westward at almost right angles and crosses the railway. On the day of the accident appellee was traveling said public road; going north toward the city of Houston. It is shown that said crossing is in the prairie, and that there were no trees nearer thereto than 300 or 400 feet, all of which were to the north thereof. It is shown by the photographs, introduced in evidence which were taken about 60 days after the accident occurred, together with other evidence given in connection therewith, that there was a right of way fence on the east side of and about 50 feet from the center of said railway track. The photograph marked "C" for identification shows a part of the public road just east of the railway and the cattle guard across the railway just north of the public road crossing. It shows that all the bill boards at this point were situated east of the right of way fence; that is, all the sign boards were east of the right of way of the railway company, thus placing them more than 50 feet from the railway track.
In view of appellant's complaint that the findings of fact as set out in the original opinion are unfair, in that parts of the testimony of several witnesses are copied into the opinion as a basis for the affirmance of the judgment rendered against it, and that parts of the same witnesses' testimony modifying, explaining, or changing the effect of those parts so copied are omitted, we here copy parts of the several witnesses' testimony omitted from the opinion as follows:
Miss Gladys Hargraves, after testifying that, after she made the turn to cross the railway track at the point of the accident, she could see an approaching train, said:
"I had come to Houston the morning of the day the accident occurred. I don't know just what time I left Pasadena, but I always left between 8 and 11. * * * I recall passing that crossing that morning. As we approached the crossing and got to it, a train passed over the crossing. * * * We had to wait for the train to pass. We were right near the crossing, just waiting for the train to pass. Mr. Gunn was just bringing me in here to Houston to take a music lesson. We were riding along in an automobile, and Mr. Gunn and I were talking. I say we ran up there one morning; we stopped and waited for the train to pass. I don't know how close it was to the track when Mr. Gunn decided to stop, but it was pretty close to the track. It was somewhere right in there after we made the turn, of course I don't remember just where, but it was pretty close. The road runs parallel with the railroad track, and just before you get to the crossing it makes a turn to the left. Just after Mr. Gunn and I had made this turn to our left we stopped and waited for the train. We saw the train coming. We were always looking for it. It was hard to see it. When we looked for it we saw it — in some places. Well, no, I never passed there *Page 990 when there was a train coming when I looked for it and did not see it. We could see if we would take our time, and would always look for it, but there was some places you could not see it at all. If it was very close we could see it lots of times. I don't suppose I have ever passed there in my life when there was a train coming but what I saw it. I suppose every time I passed that crossing and there was a train coming I saw it. I don't know, I think I have. When Mr. Gunn and I got to this crossing we looked for a train. We were expecting one. When I reach a railroad crossing and see that there is a railroad crossing, sometimes I expect to see a train, but some crossings you have to get almost upon the crossing before you see the train. I tried to always look before I got on it. In some places I saw it when I looked and in some places I could not. I never got hit at El Buey crossing. I have crossed there lots of times and seen trains coming. Every time I got to that crossing and there was a train coming I always saw it. I saw it that morning that Mr. Gunn and I were coming in. We stopped just after we made the turn to let the train by. We stopped because we saw the train, but we couldn't see it very plain. I knew what it was. I saw the train; I know it was a train. I knew it would hit us if we didn't get off the track in time, or if we kept on going, and we stopped and let it by. We did not stop that morning and take into consideration how close we were to the track — to see how close we could get to the track and stop. We never thought about how close we ran to the track, because we knew it was a safe distance. Of course we were close. We were close when we were riding along there parallel too, but not as close. We never had an occasion to measure and see how close we stopped that morning; never thought about it that morning to see how close we stopped. We were just driving along and looked down and saw the train, and stopped and waited until it went by. We saw the train just as we got there. We were driving very slow. No, it didn't get us. When we saw the train, we stood there and watched it, and it went by. Of course we saw the train a little before we stopped. I think Mr. Gunn saw the train. He was driving, and it was a left-hand car. Those trees down there on the bayou do keep you from seeing the train a good ways off; oh, you can't hardly see it from there; it seems to blend in some way; it is always dark. After we got close up, they didn't keep us from seeing that engine. The trees that are behind the engine didn't keep us from seeing it; you cannot usually see it as plain; it is always dark — but that didn't keep us from seeing it. There was one large one, and I think two or three small ones. Some were near the Sinclair fence, but some were on the right-hand side of the road. The road turns, there is another road goes straight out to a house in the field, and there is a big gate in the Sinclair fence. West from the Sinclair gate, that is, towards Houston, is where the signs were, the ones I am speaking of, not at the gate, but between there and the railroad fence (meaning the gate). I said just then I think there was two or three small ones, and I know there was one large one."
Mr. L. L. Hargraves testified as follows:
"In September, 1920, there was quite a bit of underbrush grown up there on the right of way, and there is right now, poison oak is what I call it, on the fence. It is, I judge, about 5 feet high now. I guess you would call that fence the Sinclair fence; it might be a railroad fence. In September, 1920, coming from Houston to Pasadena, as you approach that El Buey crossing going towards Pasadena, there were some signboards in there that obstructed or tended to obstruct your view of trains that approached the crossing from towards Houston. There was also the high fence and then that underbrush. These signboards I am talking about are on this cross fence between the cattle guard and the Sinclair fence. I mean there were sign boards on this cross fence here right near the fence; they were near the fence between the cattle guard and the Sinclair fence. I don't know exactly how far they were from the cattle guard. I don't know how many signboards or billboards there were between the cattle guard and the Sinclair fence on this cross fence; there might have been two, three, or four; I never paid much attention to them at the time. That looks similar to the billboards and signboards as they were in 1920. I judge those boards were 7 or 8 feet high. I couldn't say whether they went to the ground or not. I don't know how long they were, I didn't have occasion to measure them. If you get up close to anything that is 9 feet high, or anywhere near it, you cannot see. That jog (meaning the jog in the fence), where the vines are, is about 25 or 50 feet from the crossing. Standing in the public road, and looking west and seeing vines 9 feet high, you can see part of the engine that is 14 feet high. If you are looking for an engine, you can tell what it is. If you are looking for it, you can see enough of it to tell it is an engine and not a playhouse. Putting the time between 8 and 11 o'clock, and then putting it between 4 and 6 o'clock in the evening, with the sun shining, coming down this road from Pasadena, when you strike those dark, gloomy, brown trees down there, you can see from the window of the engine up. You cannot see from the window down because this underbrush will hide it. After the engine passes over that little creek, and comes up a little way from that and gets between those trees and that crossing, regardless of those trees back down there, if you are looking for the engine you can see it, if you are looking for those trees you can see them. Those trees would not keep you from seeing an engine, if the engine was between you and those trees. Standing there in the road anywhere, after the engine passes those trees and gets out, you can see from the window up of the engine. I mean that is the window where the engineer and fireman sit. If you are looking for an engine, you can see enough to tell you it is an engine. If you are looking for an engine and see that window, and see that cab and the window in that cab, that is enough to tell you that a locomotive engine is coming. If you look, you can see it."
Mr. R. A. Burch testified as follows:
"In traveling from Pasadena towards Houston, I have had occasion to observe the condition existing at the right of way as you come towards Houston. Along about September 2, 1920, at the time of this accident, there were some signboards there. (Counsel explained the different points on the blueprint heretofore used.) *Page 991 This from `G' to `D' and on represents the Sinclair woven wire fence. I suppose those signboards I saw were right along there (at point marked `O'). There were also some signboards sitting back along in here (towards Pasadena) along this line of fence. I don't know whether they were on the other side or this side. There were also two or three signboards right along here together; then there was one farther down, just about straight with this road here (county road, referring to photograph marked `C'). Those are some of the signboards I saw on the date of this accident. I am pretty sure there was more signboards there than I see in the picture; in fact, I am sure there was. There were two or three signboards; I don't know how many there were, but scattered all along, different signboards. (Counsel explained the location of Sinclair and right of way fence on blueprint). Well, I am pretty sure there wasn't any signboards inside of this fence; they were right along about the corner.
"Q. Right at the corner back of the Sinclair fence — this shows it here, if you will look — there is one there that shows the corner post of the right of way fence, and those others are back right in there where you mark. Now, isn't that practically correct as you remember it (referring to picture marked `D')? A. Evidently that is true. I am sure there wasn't any bill posts from the right of way to the cattle guard. Before going out there I had no idea how far a man could see an engine; I had never had occasion to see a train, but after I went back and made the actual experiment, standing in the road and looking to the left of the right of way fence, I could see an engine 150 yards. Standing there, I could see that engine all the way as it came up the track. You could see the engine as far one place as you could another; I saw it all the time. When I came in 20 feet of the track, I could see it right down the track nearly to Simms Bayou."
Mr. J. G. Brill testified as follows:
" * * * It bothered me; it did one time. That was about a month before this happened. I suppose that was some time in August. When I say it bothered me, I will tell the jury what I mean: It was a short train, looked like a switch engine, it may have had one car on it, but not over that; it was coming, and it got in there before I seen it; I was going, I expect, 20 miles an hour, and it was already in that space before I knew it. I saw I could not make it across, and I went straight, and as I did I hooked up in the sign right there, that is where I went. I turned to the right, and went right down by that sign. I say I was going about 20 miles an hour that time I got bothered. I didn't see the train coming; you couldn't see it. After I got right up on it, I seen it and went straight, you see. If I had made the turn, I might have made it across the track, but I did not make the turn; I went straight, almost to that sign there. I saw it before I got to the turn. The engine was probably 300 feet, from the crossing. The turn is right at the crossing. Yes; that is it. I said 30 feet from the fence. Yes; it is more than 30 feet from the road to the crossing, but I did not take the chance of turning, I landed down here. It may be 75 or 80 feet from there to there (indicating), but it didn't seem to me that day. I just went dark background of some trees down there at Simms Bayou. I saw it when I was just about 100 feet from the crossing; the train was about 300 feet from the crossing. I did not want to take a chance of making that 100 feet while the engine was making 300, and I went straight on; I took my chance with the billboard rather than an engine. That bothered me. I know I won't get bothered any more. I will never forget it."
Plaintiff, Max Freeman, testified:
"When I was in 10 feet of the track, I was not in any danger, if I could see the train. Of course I was not in any danger. If when I was in 6 feet of the track if I had seen the train I would not have been in any danger. Absolutely, if I had seen the train, I would have stopped. When I was within 10 feet of the track, the billboards were there to keep me from seeing it. Naturally all that stuff you had there, it would keep anybody from seeing the train. The billboards and what you had there combined kept me from seeing the train in 10 feet of the track. I don't know what kept me from seeing the train. I looked, and I did not see the train. I could not say how many feet I was away, but I looked for the train, and did not see it. I could not say the number of feet, but anywheres in that neighborhood your view was obstructed. You could not see a train if you tried."
Notwithstanding, however, the additional finding of facts, we are not prepared to hold that the judgment is so against the weight and preponderance of the evidence as to be clearly wrong. To the foregoing conclusion we all agree.
By its motion for rehearing appellant also insists that this court erred in refusing to sustain its assignment complaining of the refusal of the trial court to submit certain special issues, requested by it in writing, and in due time, among which was its special requested issue No. 12, which reads as follows:
"Could the plaintiff, Max Freeman, when within a sufficient distance from the track that he could have stopped his automobile before reaching the track, by the exercise of ordinary care, have seen or heard the approaching train by looking or listening for same?"
Following the request for the submission of its group of issues, shown to be 11 in number, appellant requested the court to give to the jury the following instruction (same being numbered 13):
"If you have answered special issues 1, 2, 3, 8, 9, 10, and 11 in the affirmative, or either of them, then you will answer the following question: Was such failure upon the part of the plaintiff a contributing cause to plaintiff's injuries ?"
Special issue No. 9, submitted by the court with reference to the care used by the plaintiff in an attempt to discover the approach of the train, was in general terms as follows: *Page 992
"Did the plaintiff in approaching the railroad crossing on the occasion in question fail to use the care that a man of ordinary prudence under the same or similar circumstances would have used to discover the approach of the train and avoid collision therewith?"
In due time appellant filed its exception to such charge, "in that it submits the issue of contributory negligence in the most general way possible, and that, the case having been submitted on special issues, the defendant is entitled to have the court submit each issue of fact affirmatively that goes to constitute the plaintiff's negligence, and the court cannot submit contributory negligence in general terms."
It is clearly apparent, we think, that counsel for appellant intended by its requested charge No. 13 to cover all of his special requested charges, including his No. 12, which is shown by the group to be the eleventh requested charge. It could but have been so understood by the court. There is no ground, we think, for any other conclusion.
The majority of the court feels constrained to sustain the complaint so made and to grant the motion for rehearing, and, for reason of such error of the trial court, to set aside our former order of affirmance and to now reverse the judgment of the trial court and remand the cause.
The undisputed evidence shows that the plaintiff knew that he was approaching, and was about to cross, a railway track at a point where many trains pass daily. Under these circumstances it was his duty to use ordinary care to ascertain whether a train was approaching the crossing before he went upon the track. A failure to look and listen for such train, at such time and place, as he should have reasonably expected to ascertain whether there was, or not, a train approaching before going upon the track, would constitute an act of negligence which, if it contributed to and was the proximate cause of his injuries, would bar his recovery, unless he could recover under proof of discovered peril.
It is well settled, we think, by a uniform holding of our courts, that if one about to cross over a railway track over which he knows trains frequently pass fails to look or listen for a train which might be approaching, at some point where he might reasonably expect to discover the same, such failure would constitute an act of negligence which would bar his recovery for an injury which he might receive by being struck by such train, unless he might do so under proof of discovered peril on the part of the railway company.
There was much evidence, we think, which would support a finding that, had the plaintiff looked or listened for the train which struck him, at some point where he could reasonably have expected to discover its approach, he would have seen the same in time to have stopped his automobile and have avoided the accident. The majority of this court therefore thinks that the trial court erred in refusing to submit to the jury appellant's requested issue numbered 12 but which was in fact No. 11, hereinbefore set out.
It was the duty of the trial court upon request so to do to submit separately each group of facts relied on by defendant under the evidence, tending to show contributory negligence, notwithstanding the fact that defendant had charged contributory negligence in general terms. Article 1984a, Vernon's Sayles' Civil Statutes, 1914. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; same case (Tex.Civ.App.)196 S.W. 647; G. C. S. F. Ry. Co. v. Mangham, 95 Tex. 413,67 S.W. 765; Bell v. G. C. S. F. Ry. Co. (Tex.Civ.App.) 81 S.W. 134; Stewart v. G. H. S. A. Ry. Co., 34 Tex. Civ. App. 370, 78 S.W. 979.
We quote from the cases cited as follows:
Railway Co. v. Mangham: "A plea of contributory negligence in general terms, not setting forth the particular default in care constituting the negligence, is sufficient, if not excepted to, to admit proof of the particulars, and to entitle defendant to a requested instruction grouping such particular facts establishing the defense and declaring their legal effect."
Bell v. Railway Co.: "The appellee, in its plea of contributory negligence, did not particularize, but generally charged that the plaintiff was guilty of contributory negligence in undertaking to use the benches or trestles referred to, for the purposes mentioned in the petition.
"We regard this as a general averment of contributory negligence that arose from the use of the benches. It was not excepted to, and under the rule as we understood it, the defendant could prove any fact showing contributory negligence that resulted from the use of the benches."
Stewart v. Railway Co., writ of error denied by the Supreme Court: "Defendant pleaded general denial, and specially `that plaintiff was guilty of negligence at and before his injuries which was the direct and proximate cause of the same.' The portion in quotation marks is the language of the plea."
In the case last cited the contention was made that the general plea of contributory negligence did not authorize or require the court to submit affirmatively the different issues of negligence disclosed by the evidence. Disposing of such contention, the court said:
"A general plea of contributory negligence, not excepted to, is undoubtedly sufficient to warrant its submission generally or in any and all forms in which the issue is made by the evidence."
In Fox v. Dallas Hotel Co. our Supreme Court said:
"The trial court disregarded the mandatory provisions of articles 1971, 1984a, and 1985, Vernon's Sayles' Texas Civil Statutes, in the *Page 993 charges given and refused, in submitting the issues of contributory negligence raised by the pleadings of defendant in error. For that reason, no other proper judgment could have been rendered by the Court of Civil Appeals than to reverse the judgment of the trial court and to remand the case for a new trial.
"The statutes make it the duty of the court in trials by jury: First, to submit all the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling; and, third, to give such explanation and definition of legal terms as shall be necessary to enable the jury to answer each issue.
"Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error's suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her to recover, which she pleaded and proved. The court submitted separately, as the statute required, each group of facts relied on by plaintiff in error, under her pleadings and the evidence, to constitute negligence on the part of defendant in error. The court, over the objection of defendant in error, refused to submit separately each group of facts relied on by defendant in error, under its pleadings and the evidence, to constitute contributory negligence on the part of Alexander Fox."
We all concur in the conclusion that our construction of the decision in the Fox Case was erroneous.
The majority of this court has reached the conclusion that in refusing to give the requested charge No. 12, hereinbefore set out, the trial court committed reversible error, and, having so concluded, it becomes our duty to reverse the judgment and to remand the cause, which is accordingly so ordered.
Justice GRAVES, however, dissents from the conclusions last mentioned.
Reversed and remanded.