The writer deeply regrets his inability to bring his views of this case in accord with those of the majority opinion. The professional and personal high regard in which he holds his brethern caused him to reach the conclusion resulting in his dissent through a careful and cautious investigation, more in an effort to accede to their opinion than to reinforce his views in opposition to theirs. Therefore it is with much hesitancy that he expresses this his dissent from the conclusion reached by the majority opinion on the following propositions:
I. That the undisputed evidence established that J. H. Plangman, driver of the automobile which was struck by appellant's train, and W. M. Ray, deceased, who was riding in the automobile, were joint enterprisers.
The evidence on this issue which is embraced solely in the testimony of J. H. Plangman, and is undisputed, established the following facts:
That the Sherman Grain Seed Company is a partnership composed of said J. H. Plangman and his son, Jewell Plangman, engaged in the sale of seed of various kinds, including cottonseed. That they visit different places and give orders for cottonseed, and sell seed all over the country, wholesale and retail.
That the company had engaged the deceased, W. M. Ray, to sell cottonseed on a commission, paying him 25 cents per bushel on all cottonseed sold by him for the company. That Ray would take orders from the farmers and report same, and the orders were filled by the company. That Ray had formerly lived down about Wills Point, and after a trip there reported to the company that he had located some good seed at that place, and had taken orders for 700 or 800 bushels. That he had gotten a price on the seed at Wills Point, and at the time of the collision he and Plangman were on their way to Wills Point to close the deal for and receive the *Page 95 seed. That deceased, Ray, was not only to fill the orders he had theretofore taken out of the seed they were going to buy at Wills Point, but was to solicit and receive orders for seed to be filled out of the seed to be purchased on this trip at a commission of 25 cents per bushel. This the writer thinks is sufficient to establish conclusively that J. H. Plangman and W. M. Ray, deceased, were joined in a common or joint enterprise. This being true, on the evidence establishing that Plangman was negligent on the occasion in question, such negligence would be imputed to deceased, Ray. The rule that the negligence of the driver of a vehicle is not imputed to an invited guest is settled and established beyond controversy, and, it may be said, as equally as well settled as a rule that where persons are engaged in a joint purpose or enterprise, in the use of a vehicle, the negligence of the driver is imputable to his joint enterpriser. Was the deceased, W. M. Ray, a guest of J. H. Plangman, or an enterpriser with him?
The writer is of the opinion that under the undisputed evidence of J. H. Plangman, supra, the deceased, Ray, was not within the rule applicable to invited guests or passengers, but, on the contrary, was engaged in a common purpose, and was a joint enterpriser with Plangman. This conclusion is undoubtedly supported by the following authorities: W. O. R. Ry. v. Zell's Administratrix, 118 Va. 755, 88 S.E. 309; Van Horn v. Simpson et al., 35 S.D. 640, 153 N.W. 883; Wentworth v. Town of Waterbury, 90 Vt. 60, 96 A. 335; G. H. S. A. Ry. Co. v. Kutac,72 Tex. 653, 11 S.W. 127; Johnson v. G., C. S. F. Ry. Co.,2 Tex. Civ. App. 139, 21 S.W. 276.
II. That because of the contributory negligence of the deceased, Ray, and J. H. Plangman the trial court erred in refusing to give the peremptory charge requested by appellant, instructing the jury to return a verdict for appellant.
The undisputed evidence in this case shows that J. H. Plangman, driver of the automobile which was struck by appellant's train, and W. M. Ray, deceased, who was riding in the automobile, were riding in the automobile on a joint enterprise. That they were both familiar with the location of and knew that they were approaching a public crossing, where the collision occurred. That the crossing is in an open and prairie country. That the collision occurred in the daytime, and there was nothing to obstruct their view or to prevent them from seeing the train in ample time to have avoided the collision. That if they had looked at any point from about 100 yards from the crossing up to the crossing they could and would have seen the train. That they and each of them failed to look at any place within said distance of the crossing, the only evidence on this material point being furnished by the testimony of J. H. Plangman, viz.:
"About a half a mile before we got to the crossing, the fact that we were approaching this crossing was talked about between Mr. Ray and me, and between the time we commenced talking about it and up to the time of the collision I looked back twice, and I think Mr. Ray looked back three times, to see if a train was coming. * * *"
"Q. Now, isn't it a fact that the last time you looked back and the last time he looked back you were about 100 yards from the crossing? A. My best recollection is that we might have been a little less or a little more than 100 yards from the crossing.
"Q. The last time you looked and the last time you saw him look, you were a little over 100 yards from the crossing? A. Yes, sir; that is the best of my recollection."
On redirect examination.
"Q. Did Mr. Ray look back after that time himself? A. I did not see him look back.
"Q. You wouldn't say he didn't look back after you looked back? A. No, sir; the last time I saw him look back was when I looked back something like 100 yards from the crossing."
That J. H. Plangman drove the automobile around a truck which had been stopped about 50 feet from the crossing to wait until the train passed over the crossing, and drove onto the crossing where the train was a short distance therefrom, and in plain view of the crossing, without either of them making any effort to ascertain whether or not there was a train approaching the crossing immediately before driving the car thereon.
From this state of facts, the writer can draw but one conclusion consistent with the acts and conduct and surroundings of the parties immediately before and at the time of the accident, viz., that they and each of them were guilty of contributory negligence as a matter of law, and therefore the trial court erred in refusing to give the peremptory charge requested by appellant. The following authorities are cited as justifying this conclusion: Railway Co. v. Bracken, 59 Tex. 71; Railway Co. v. Kutac, 72 Tex. 647, 11 S.W. 127; Railway v. Dean, 76 Tex. 73,13 S.W. 45; Railway v. Moss, 4 Tex. Civ. App. 318, 23 S.W. 475; Railway v. Fuller, 5 Tex. Civ. App. 600, 24 S.W. 1090; Turner v. Railway (Tex.Civ.App.) 30 S.W. 253; Railway v. Kauffmann, 46 Tex. Civ. App. 72,101 S.W. 817; Teetz v. Railway (Tex.Civ.App.) 162 S.W. 1000; Railway v. Hart (Tex.Civ.App.) 178 S.W. 796; Railway v. Price (Tex.Com.App.)240 S.W. 526; Frias v. Railway (Tex.Civ.App.) 266 S.W. 549; International Great Northern Ry. Co. v. Will Edwards, 100 Tex. 22, 93 S.W. 106. From the last cited case the following quotation is made as being peculiarly applicable to the instant case.
"The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty *Page 96 of negligence. This is the precise attitude of the plaintiff, when he claims that he was not bound to look out for himself until the statutory signals were given. His claim cannot be admitted without denying the rule which exacted the duty of due care on his part, a duty as binding on him as was the duty of giving signals binding on the defendant. The case is easily distinguished from those in which this court has held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of the travelers to do any particular thing as a measure of due care, such as to look and listen, it being the function of the jury to say what precautions were called for by the particular situation. Those cases presented issues for the jury to determine as to whether or not the care taken was sufficient, and not bare facts, like those in this case, establishing that no care whatever was taken and offering no excuse for its absence except a reliance on the other party."
The following evidence, in the opinion of the writer, is quite significant, in fact becomes very important in its influence when considered in connection with the entire environments of the case as established by other facts without controversy in the testimony:
"When we were back there talking about that crossing, I said to Mr. Ray, `You look to the west, and I will look to the east.' Mr. Ray was on the west side next to the track. I thought he was in better position to see a train coming from the west than I would be, and I asked him to look to the west, and he said he would, and I told him I would look to the east." "The train did not whistle from the time Mr. Ray and I first talked about it up to the time the train struck the car; if it did, I didn't hear it. I did not hear any whistle of any kind. There were no danger signals or anything like that. I first knew that a collision was imminent as I rounded the curve in this road approaching the track. I said to Mr. Ray, `My God, Dad, yonder she comes.' I always addressed Mr. Ray as Dad. He said, `Yes; she is going to get us,' or something like that."
This evidence shows, if it is proof of anything that Plangman and Ray had, at the time of all times when they should have exercised due care, failed to exercise for their own safety that degree of care that a person of ordinary prudence would have exercised under like or similar circumstances, and from some cause had ceased to exercise the care that they had exercised until they had reached within 100 yards of the crossing, and from that point on were relying entirely on appellant to perform its duty in giving the crossing signals required of it by law in order for them to pass over said crossing in safety. Surely such an interpretation of the law of actionable negligence should not be sanctioned, for it would be but to hold the appellant liable for injuries flowing from affirmative acts of negligence for which no excuse is reflected in the evidence, and without which the collision resulting in the death of W. M. Ray could not have occurred.
Because the evidence established not only that Plangman and deceased, Ray, were engaged in a joint enterprise at the time of the collision, and therefore the negligence of Plangman was imputable to the deceased, Ray, but because both were guilty of contributory negligence as a matter of law, appellant was not liable for the injuries resulting in the death of W. M. Ray. It is the opinion of the writer that the trial court erred in refusing to give the peremptory charge requested by appellant, and that the judgment rendered on the verdict of the jury should be reversed and cause rendered by this court for the appellant.