On Motion for Rehearing. On motion for rehearing, appellee challenges our findings on several minor maters, not affecting our final conclusion that the issue of "unavoidable accident" was present and should have been submitted to the jury, and that there was irreconcilable conflict in findings of the jury, necessitating reversal and remand of the cause.
Reviewing the entire record, including the statement of facts of some 288 pages, independent of recitals in the respective briefs, we adhere to our former opinion and conclude further that there is not sufficient evidence to support findings, in effect, that the crossing in question was so extra-hazardous or unusually dangerous as to require the, use by the Railroad Company of extraordinary means, such as the maintenance of a flagman or switchman at the crossing to warn the public of its trains. However, there is evidence that a switchman or "field-man", a Mr. James, was, at the time of the collision, at or near the crossing, discharging the duties of a flagman; also that a Mr. Ward, another of the train crew, was there and that he walked across the street intersection, in advance of the train, to clear the track of a truck, belonging to a Mr. Erwin, which was stationed on the east side of Ervay Street immediately north of the track. Mr. Ward and Mr. Thurman, another member of the train crew, testified that they relayed Mr. James' signals, that the crossing was clear and that the train could safely pass, to the engineer operating the train.
There is evidence that the train, immediately prior to the collision, was at a standstill on the west side of the intersection, destined to be backed eastward across Ervay Street and onto a switch track. Appellee approached the crossing from the south, and, in response to questions, testified that he entered Ervay Street several blocks south of the intersection, traveling at 20 to 25 miles per hour, and then reduced his speed to 10 to 15 miles per hour; that he was familiar with the crossing, having traveled across the tracks at that point five or six times daily for the last five or six years; had observed trains switching back and forth and was entirely familiar with the crossing and its surroundings; knew the general location of the building and tracks; knew the trains ran on the tracks, and that they passed over the crossing; that he reduced his speed on the occasion in question to about 10 or 15 miles per hour, up to the time he got on the track; started slackening his speed about 150 feet back; looked on the crossing for a flagman; that he always looked to see if a train was coming; that he didn't see a train or flagman, though he looked for one. He stated further that he saw a man but did not know whether he was a flagman, or who he was; he paid no attention to him; that the man was talking to a truck driver on the north side of the street; that his attention was directed to the truck and driver (Mr. Erwin) — naturally, was watching to see if the driver was going to pull his truck out in front of him. Testifying further, he said: "I was about 15 or 20 feet from the track at that time (when he observed the truck, and the men talking). I was not over 12 or 15 feet from the track when I first saw the train; I was going about 10 miles per hour. I applied my brakes as soon as I could and stopped the car on the track before the train got there. The train was right on me, — I don't know, 3 or 4 feet, — struck my car and pushed me 3 or 4 feet before it stopped. I did not see the train when it was standing over on the other side of the street, before it started to proceed into the street. The train wasn't in view at all until I got up close to the track. When I was back, say 50 or 60 feet from the track, I did not see the train. I never noticed the truck and the truck driver at that time. I always looked for a train when back 100 feet or so from the track. At this time, I looked to the east and to the west for a train — in both directions. I first looked, when about 100 or 150 feet from the track; I did not see any train. I glanced back and forth in both directions, as I approached the track. When I was 100 feet back, the brick building (on southwest corner) obstructed my view; when I was 50 or 75 feet back, I looked for a train; didn't see any; if I had seen one, would have stopped. I looked, *Page 929 for a train when I was 30 to 40 feet from the track, but didn't see any. I again looked in both directions. At the speed I was going, I could have stopped my automobile when within 20 feet of the track. When the train struck my car it wasn't going so awful fast — I would say, 3 or 4 miles per hour * * * When I drove up on the track, the man, who afterwards told me he was one of the trainmen, was on the north side of the track, the northeast side, talking to this truck driver. I did not see him signal the engine for the train to stop. I did not know whether he did or did not signal the engineer. I saw him over there when I drove on the track."
The uncontroverted testimony shows further that the brick building, on the southwest corner of the street intersection, which appellee claims obstructed his view, stood 25.7 feet from the center of the switch track on which the train in question was moving, and 23.4 feet from the nearest rail. Ervay Street, between curbs, was 45 feet wide; there was a sidewalk 12 feet wide on the west side, and one 7 feet wide on the east side, making the total distance between the building on the southwest corner and the one on the southeast corner 64 feet. At 71 feet south (east of the center of Ervay Street), the view northwestward toward the railroad was unobstructed for a distance of 82 feet; at 44 feet south, the view of the railroad was unobstructed for 110 feet; at south 30 feet, unobstructed for more than a block, and at 20 feet, a clear view could be had up the railroad track as far as one could see. There was no obstruction whatsoever to a clear view between the relative positions above indicated.
Manifestly, there is no reason to believe that an approaching train could not have been seen by appellee had he exercised any degree of care for his own safety before attempting to cross the railroad track. The evidence reflects inexcusable negligence on his part. Had appellee looked, at any time after he reached a point 70 feet south of the south rail of the track upon which the switch engine and cars were approaching the crossing, he could have seen the train; and at any time before he reached a point, say 20 feet south of the track, his automobile could have been stopped before going upon the track. The street was level and the view in all directions unobstructed. Appellee testified he did not see the train crossing the street until too late to avoid the collision. His attention was directed to the Erwin truck, standing across the track, facing Ervay Street, which he thought was about to move into his lane of travel. As a consequence of his own failure to observe the slowly moving train, he drove upon the track, applied his brakes and stopped his car in front of it.
A judgment based upon alleged negligence of the Railroad Company in not having extraordinary means of warning at or upon the crossing should not be permitted to stand under the facts of this case. Appellee approached the intersection at 10 or 15 miles per hour, looked in both directions — east and west — at a crossing, unobstructed, entirely familiar to and much used by him, yet did not observe the train; thus it might well be said that he would not have seen a flagman, if one had been present.
Failure, if any, of the Railroad Company to have a flagman could not have been and was not the proximate cause of the collision. The train itself, upon the track, was sufficient warning and notice to persons about to use the crossing. Under the evidence, the crossing was not more than ordinarily dangerous, and reasonable minds could reach no conclusion other than that appellant was not guilty of negligence in not maintaining extra precautionary signals at such intersection. By an unbroken line of authorities, the rule seems to be well-established in Texas that appellant was under no obligation to maintain a flagman or resort to other extraordinary means to warn persons approaching said crossing, unless such crossing is more than ordinarily hazardous. Texas N. O. R. Co. v. McMahan, Tex. Civ. App. 144 S.W.2d 1019; Texas N. O. R. Co. v. Stratton, Tex. Civ. App. 74 S.W.2d 746; Texas N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113; Thompson v. St. Louis Southwestern R. Co., Tex. Civ. App. 55 S.W.2d 1084, 1085; Robinson v. Houston Belt Terminal R. Co., Tex. Civ. App. 23 S.W.2d 894, 895; St. Louis S.W. R. Co. v. Hill, Tex. Civ. App. 13 S.W.2d 420; Galveston-Houston Electric R. Co. v. Patella, Tex. Civ. App. 222 S.W. 615, 627; Smith v. Galveston-Houston Electric R. Co., Tex. Civ. App. 265 S.W. 267; Gillham v. St. Louis Southwestern R. Co., Tex. Civ. App. 241 S.W. 512; Galveston, H. S. A. R. Co. v. Burr, Tex. Civ. App. 291 S.W. 299; Texas N. O. R. Co. *Page 930 v. Adams, Tex. Civ. App. 27 S.W.2d 331, 334; Louisiana Ry. Nav. Co. v. Louder-milk, Tex. Civ. App. 295 S.W. 193.
Measured by this rule, the evidence in this case does not raise an issue of negligence on the part of appellant in the respects alleged in the petition. As stated above, appellee was familiar with the situation and surroundings of the crossing and had passed over it five or six times daily for the past five or six years. He paid no attention to the slowly moving train at a time when he could have stopped in safety, but was paying attention to Mr. Erwin and his truck, immediately across the track, until too late to stop his auomobile. His only excuse for not sooner slackening his speed and stopping before going upon the track is that he did not see the train, that he did not recognize the flagman, Mr. James, and that his attention was directed to the truck, thinking it might move forward in his line of travel. It seems to us, in view of appellee's admissions, that he must be held guilty of negligence.
The case having been fully developed, and the evidence being insufficient to support findings by the jury to the effect that the crossing in question was more than ordinarily dangerous, and that the Railroad Company was guilty of negligence in failing to give adequate warning of the proximity and approach of its train, proximately causing the collision, appellee's motion for rehearing is overruled, the judgment heretofore rendered, remanding this cause, is set aside and judgment here rendered that appellee take nothing.