* Writ of error refused November 15, 1922. The opinion on a former appeal of this case is reported in 195 S.W. 322. A statement of the case as last tried is as follows:
"This is an appeal, properly perfected and presented here by the Galveston, Houston Henderson Railroad Company from a judgment of the tenth district court of Galveston county, Tex., entered April 27, 1921, against it in favor of Charles W. Sloman and his wife, Sarah Jane Sloman, who were the parents of Wiley W. Sloman, deceased, jointly for $7,500, awarded them as damages for the loss of pecuniary benefits alleged to have been reasonably expected by them from their said son, who had been struck and killed on November 23, 1913, by one of appellant's locomotives, operated by its employees, at a public crossing of its railroad by the public road from Texas City to Galveston, at a point between La Margue and Texas City Junction. At the time of the accident said Wiley W. Sloman was driving an automobile along said public road, both the automobile and the locomotive moving in the same direction towards Galveston, and the two collided at the point stated; the automobile being wrecked and said Wiley W. Sloman killed.
"The public road along which the automobile was traveling ran parallel with the railroad to a point 60 feet opposite said crossing, where it turned almost at right angles across the railroad; but there was a dirt road which continued south toward Texas City, likewise practically parallel to the railroad from this point or corner, from which the other public road, which was a shell road, turned, as stated, to cross the railroad."
The pleadings upon both sides at the last trial contained many charges and counter-charges of negligence and contributory negligence; but the case was submitted by the court to a jury upon special issues, which embodied the question of discovered peril only, these issues, with the jury's answers thereto, being as follows:
"Special issue No. 1: Did the defendant's servants in charge of the engine that was in collision with the automobile discover the danger of Wiley W. Sloman and realize the peril of Wiley W. Sloman in time to have avoided such collision in the exercise of ordinary care by the use of the means at their command? Answer: Yes.
"Special issue No. 2: At what place was the automobile driven by the deceased, Wiley Sloman, when the fireman actually discovered and realized that the deceased, Wiley Sloman, would attempt to cross the track in front of the train? Let your answer state at what place from the crossing where the accident occurred. Answer: 40 feet.
"Special issue No. 3: How far was the engine from the crossing or place of the accident when the fireman actually discovered and realized that the deceased, Wiley Sloman, would attempt to cross the track in front of the train? Answer this issue by stating the distance in number of feet. Answer: 385 feet.
"Special issue No. 4: What damages, if any, have been sustained by plaintiffs, Charles W. Sloman and Sarah J. Sloman? In this connection you are instructed that no recovery can be had for mental grief or agony, and that you can only assess such damages as you may believe from the evidence will be equal to the present money value (if paid now all at one time) of such pecuniary aid as plaintiffs had a reasonable expectation of receiving from the deceased, Wiley J. Sloman, if he had lived. Answer: $7,500.00."
Immediately following issue No. 1, the court instructed the jury as follows:
"In connection with and explanatory of this issue, you are instructed that the burden of proof is upon the plaintiffs to show by preponderance of the evidence that the engineer or fireman actually discovered the peril of the deceased in time, by the exercise of ordinary care, with all the means at their command, consistent with the safety of the train or its passengers, to have prevented the accident.
"You are further instructed, that the fireman and engineer operating the train in question in law had the right to presume that a party approaching a railroad crossing where his view was unobstructed would not attempt to cross in close proximity to or in front of a moving train, and no duty would rest upon the engineer or fireman to give any warning of the approach of said train until it reasonably became apparent to them that the deceased, Wiley Sloman, would attempt to cross the track in front of said train."
We agree with the trial court that the issue of discovered peril became the only one applicable to the developed facts of the case.
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?
As already shown, the jury, in answer to special issues submitted, found that the fireman on the locomotive actually discovered and realized that the deceased, Wiley Sloman, would attempt to cross the railroad track in front of the approaching train at the time Sloman was 40 feet from the point of the collision; that at the same time the locomotive was 385 feet from said point, and that after the discovery by the fireman that *Page 270 Sloman would probably attempt to cross the track in front of the locomotive, the operatives in charge thereof could have avoided the collision in the exercise of ordinary care to use and by the use of the means at their command.
Appellant challenges the findings of the jury in that — (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) in that 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 in that such finding is against the great weight and preponderance of the evidence.
Appellant contends that the undisputed evidence shows that the train was running at a rate of speed of not less than 40 miles an hour, and that the lowest speed placed upon the automobile by any witness was 10 miles an hour, and as it was thus shown that the train was traveling at least four times as fast as the automobile, it is apparent that the automobile would have passed the point of collision and been 50 feet beyond it before the train reached said point, and that in such circumstances the collision could not have occurred.
After a careful review of all the evidence the majority of this court have reached the conclusion that the contention of the appellant should be sustained. If, as contended by appellant, the evidence shows that after the automobile turned to make the crossing it was running at a rate of speed of not less than 10 miles an hour, and we think it does, then it is clearly demonstrated that the collision could not have occurred, had the findings of the jury that at the time the automobile was only 40-feet from the point of collision and the train was 385 feet therefrom been correct.
Upon the issue of discovered peril the burden was upon the appellee to show: First, that the peril of the deceased was discovered by the operatives of the locomotive which collided with the automobile in which the deceased was riding; and, second, that after such discovery said operatives could, in the exercise of ordinary care, have prevented the collision. Has appellee met this burden?
The facts and evidence bearing upon the issue of discovered peril was substantially as follows: The public road along which the automobile occupied by the deceased was traveling is situated about 60 feet east from the railroad track of the appellant, and runs parallel therewith for a distance of several miles. At a point directly east of the crossing, where the collision in question occurred, one branch, the main branch thereof, which leads to the city of Galveston, turns west almost at right angles and crosses the railway track of appellant. Another branch, leading to Texas City, turns at the point last mentioned eastward at about an angle of 35 degrees. Both the train and the automobile were approaching the crossing where the collision occurred from the north. The approaching train could have been seen by any one at or near the crossing for a mile or more. As the automobile was traveling along the road parallel with the railroad, and before it made the turn to cross the railroad it was traveling, as shown by the various witnesses, from 20 to 50 miles an hour, some witnesses placing its speed as low as 18 to 25 miles per hour, and others as high as 50 miles. As the train approached the crossing it gave the usual whistle at the whistling post, 440 yards from said crossing. It is conceded, as well as being manifest from the undisputed facts, that the operatives of the locomotive had no reason to anticipate that the deceased was in peril until he had turned to the right at about 40 feet from the point of collision.
That portion of the testimony of the several witnesses relative to the issue of discovered peril is substantially as follows:
W. N. Ayers, for the plaintiff, testified that the train which struck Sloman was coming from the north, going south to Galveston, and that Sloman was traveling in an automobile going in the same direction as the train; that when the automobile made the turn to cross the railway track it was about 30 or 40 feet from the crossing where the collision occurred; that just as he turned, Verbeck, who was with the witness, remarked that there was danger of a collision; that he would judge that Sloman was running the automobile between 18 and 20 miles an hour, after he turned to the right to make the crossing he was within a few feet of the railway track, and that he then thought he saw Sloman apply his brakes; that he did not notice the train trying to stop until after the collision; that he heard the air brakes go on after the collision. The witness admitted on cross-examination that shortly after the collision he had signed a written statement, and that in that statement it appears that he stated that the engineer applied the air just after the auto brakes were applied, but he stated, while testifying, that he did not intend to make such statement. Testifying further, he said:
"I looked to see if he had checked up or slowed up, and he never slowed up until he turned toward the track. I never saw him slacken up until he turned, and he was then in a few feet of the track, and the gentleman talking to me called my attention to the fact, and said: `Look out, there is going to be a *Page 271 collision.' The automobile and train were getting right close together. I had not observed the automobile before it passed me. It is a fact that about the time the automobile passed me I beard the train whistle the four blasts. At that time (meaning the time when I heard the train whistle), the train was, I should judge, about 200 yards from me. I heard the train making four long blasts, and at that time Wiley Sloman was just passing me in the automobile, looking out and waving at me. * * * There wasn't anything to obstruct Sloman's view. * * * Just before Sloman turned to cross the railroad the train was close to him, but I could not say whether they were even or not. They were practically parallel with each other, just before he turned in. There are two roads there. There is a shell road that comes on to Galveston and a dirt road. The two roads part right opposite the crossing. If you come to Galveston you must turn nearly at right angles to the right. The other road leads out across the prairie to Texas City, and persons going down this way would not go to the right, but go on straight, turning a little to their left. Wiley Sloman lived at Texas City."
On redirect examination he testified that after the auto had passed him Mr. Verbeck remarked that there was danger of a collision; that at the time this remark was made the train had passed them; that Verbeck made said remark just as Sloman was in the act of turning; that the train was running about 40 miles an hour.
L.H. Verbeck, who was with the witness Ayers at the time of the collision, testified that he saw the auto occupied by Sloman as it passed him and Ayers going towards the crossing; that at that time he was about 300 feet from the crossing; that as Sloman passed them he waved at Ayers, and that then the train passed, and he said to Ayers, "Look, the automobile Is going to hit the train," and just then the crash came; that it was apparent to him that Sloman Intended to cross ahead of the train; that It was evident that the driver of the auto intended to cross ahead of the train; that he could not say whether or not the train slackened Its speed before the collision occurred; that when he saw that the auto was crossing the track the train was so close that the collision was over as quick as a flash; that the train stopped just after the collision; that the speed of the auto was about 25 miles an hour.
On cross-examination this witness testified that he made a statement with reference to the collision shortly after it occurred. He admitted that in that statement he had said that the auto passed him at a speed of 50 or 60 miles an hour, that at that time he judged It was going about that fast, and that he had also stated that the auto was racing the train, and that It was only about 80 feet ahead of the train when It passed him; that he did not know at what point the brakes of the auto were applied. He testified that the statement made by him was correct. Testifying further, he said:
"When the auto passed us I heard the train whistle and I looked around, and I suppose probably it was maybe 150 feet or such a matter behind the automobile — maybe a little further: I cannot say exactly. I was looking at the automobile, and when I heard the train whistle I looked around, and then I noticed the automobile had just passed us a second or two, I suppose, when the train whistled. The whistle of the train was the first thing that attracted my attention, because the wind was blowing straight up the road and blowing the sound back up the track. The train was making considerable noise. I heard the whistle, and then looked around and said to Mr. Ayers, I said: `That automobile is going to try to head the train off.' I heard the whistle, and then I looked in the opposite direction and in passing in front of me — the train passing in front of me — the bell was not ringing, or, if it was, I did not hear it. I suppose the automobile was going 50 miles or more when it passed. I suppose there was an engineer and fireman on the locomotive. I could see the fireman. He was leaning out of the window. He was on my side and 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."
John Anthony, for the plaintiff, testified:
"When I heard the usual rumbling noise made by a running train I looked around, * * * and as I did so I saw the approaching train fully 150 yards or a little more down the track from the crossing * * * and at the same time I saw the automobile about 40 feet from the main line railroad track 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 don't think the brakes were applied — I am pretty sure they were not — nor was any effort made, so 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 was riding in my horse-drawn buggy. When I first saw the automobile it was right at the crossing, just crossing on the crossing; it had already turned and was about 40 feet away from the main track of the crossing."
Henry A. Smith, for the plaintiff, testified that he was one of the occupants of the automobile which was in the collision; that he could not say just how fast the automobile was traveling for a mile before it reached the crossing, but he judged that its speed was about 18 or 20 miles an hour, but that upon coming to the turn for the crossing it slowed down sufficiently to make the turn safely.
R. C. Paul's depositions were offered in evidence by plaintiff. He testified that he was the fireman on the engine which collided with the automobile; that he saw the auto first about one mile north of the crossing *Page 272 where the collision occurred; that at that time the train was running 40 or 50 miles an hour; that his station on the engine was on the left side, and that of the engineer was on the right side; that when he first saw the auto it was ahead of the train, and going in the same direction as the train was going. Continuing, he said:
"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 came to the turn they were looking back at us, and I never paid any more attention to it. We have things like that to occur every day. 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. It seemed when they turned the corner they hit us; it was a very short distance; the automobile hit the train. The automobile was coming down along parallel with us, and when they hit the crossing they `piped' right into us and hit on the right side of the engine. There was only one spoke broke out of the pilot. The automobile was thrown to the left-hand side, almost in the cattle guard. Nothing at all was on the right-hand side. I did not expect or anticipate or realize that the automobile would try to cross ahead of us. The bell was ringing; I was ringing it myself. I began ringing the bell before we hit the whistling board, that is a habit I got. I rang the bell before we hit the whistling board, and kept it up until after we made the crossing. The whistle was blown."
"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 3 telegraph poles ahead of the train when the parties in the automobile looked back; I don't know who it was that looked back; but I could see them looking back. * * * At the time the parties in the automobile looked back our train was about 2 or 3 telegraph poles from the crossing. I don't know how far the telegraph poles are apart, but that is the way we usually judge our distances along the line. 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 said the locomotive was going somewhere between 40 and 50 miles an hour."
The depositions of S. G. Works, the engineer in charge of the engine in question, were introduced. In these depositions he testified, among other things not necessary to be here stated, as follows:
"I have been a locomotive engineer since January, 1896. This was a regular Sunday train that ran from Houston to Galveston. Passing Lamarque and coming on down that is open prairie up there. The shell road that the automobile was on was to my left coming this way. Running along I observed an automobile some 400 or 500 feet, 4 or 5 telegraph poles, from the crossing; that was about a mile north of the crossing; I observed the automobile about a mile north of the crossing. I should judge the automobile was 3 or 4 or 5 telegraph poles ahead of me when I observed it; of course, I could not give an accurate distance. Somewhere about a mile north of the crossing I was looking down and saw an automobile going on down the shell road in the same direction we were going, and some 4 or 5 telegraph poles ahead of me. Coming on further down, I was looking down the track, and naturally was keeping a lookout down the track. It is my duty as engineer to keep my eye and observation on the track, watch the track. It is a very common occurrence to see automobiles running alongside of the train between here and Houston, and it is a very common occurrence for them to go backwards and forwards along parallel with the train.
"I could not judge the rate of speed at which this automobile was going, but it seemed to be going pretty fast. We were making the usual schedule, which I believe is from 40 to 45 miles an hour. I should judge, if this automobile that I saw was the one that struck us on the crossing, that they were going pretty near as fast as we were. * * *
"I did not see or observe that automobile as it turned right in; I did not notice it then. It was impossible to stop the train before the collision after warning was given me. At the time I saw this automobile ahead of me I did not expect it to try to go ahead or beat me across that crossing. * * * The collision and the notification that I got were almost at the same instant. I did not see the party as he attempted to cross, and I did not see him as he turned in. It was impossible to have stopped the train in time to have avoided the accident after I realized, either by sight or information that I got, that there would be a collision."
S. G. Works, the engineer in charge of the train, was called by appellant as a witness, and testified on direct examination as follows:
"My name is S. G. Works. I have testified before in this case. I am the same Mr. Works whose deposition was read here this morning; I heard a part of the deposition read.
"An engineer is on the right side of the cab. My fireman on the engine was Mr. R. C. Paul. Mr. Paul, I believe, is dead in Europe somewhere; he died during the war in Europe I was told. Just about the time the automobile struck the engine Mr. Paul gave some kind of an alarm; I don't remember the alarm he gave; it was a verbal alarm; `Look out!' or something to that effect. After Mr. Paul gave this alarm, and before the crash, I did not have time to blow the whistle or do anything. The mind will act almost instantly when you get the warning, but that will take probably a second or two, or three, maybe.
"I was promoted to engineer in January, 1896, and I have been running between here and Houston since September. I think it was, *Page 273 in 1908. There are a number of crossings on the Galveston, Houston Henderson track between here and Houston; the road from here to Houston crosses the railroad several times, quite a number of times. It is a very common occurrence to see automobiles passing the crossings. What I find and have continuously found parties doing who are riding in automobiles in approaching crossings, if they consider they have not time enough to cross safely, they usually drive up close and stop their machine at distances from the track that vary a great deal; some will drive very closely, and others will stand back as far as 35 or 40 feet. By `very closely' I would say 5 to 10 feet sometimes. As an engineer, in seeing a party approaching a crossing at a distance from it, if there is not intervening time for him to get across, I certainly expect him to stop."
On cross-examination this witness testified as follows:
"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. * * * A man running an engine would naturally suppose that the automobile driver would use all precaution in trying to stop before he would run himself into danger. I don't be-live an engineer is supposed to think or know that a man driving a car is unconscious of the danger that he is in; I would not figure it that way. If I see there is danger of a collision I use all precaution to stop, and those precautions would be to apply the brakes in emergency; that is an air brake. It would probably take two or three seconds for the emergency brake to act, but as soon as it acts it slackens the speed of the train. After the engine is shut off the cylinder cocks would be inoperative; there would be no steam come out of those. I have the whistle right there also, and the whistle would blow if I pulled the cord, even if the steam was shut off. The shutting off the steam would tend to reduce slightly the speed of the car in time. I have no schedule issued by the Westinghouse air brakes people showing the air-brakes test. After I applied the air brakes in emergency the train would not begin to slow down within a fraction of a second, but in a very few seconds; it would possibly require two seconds or more before the brakes would commence to act particularly. The sand is not applied to the track automatically; that is there what we call the hand sander or lever that we pull to open the sand valves from the sand box, or what is known as an air sander, which is operated by turning a globe valve; that is convenient to where I was standing in the car or engine. I would state that two seconds or three seconds after the application of the air brake in emergency the speed of the train would begin to slacken."
We find in the above statement of the testimony sufficient evidence to support a finding that the fireman on the engine discovered the peril of Wiley Sloman at the time Sloman was 40 feet from the point of collision, and that in the very short space of time intervening between such discovery and the collision, shown not to have exceeded six seconds, he attempted to warn the engineer of the dangerous position of the deceased. It is not enough, however, to show that the peril of the deceased was discovered, but as the burden is upon the plaintiffs they must also show that the operatives of the train could, by the use of the means at their command, have prevented the collision, before they can recover.
What was the situation in the present case? The auto was being driven at a high rate of speed along a public road running parallel with the railroad; the fireman saw the driver as he passed Ayers and Verbeck look out of the side of the auto next to the approaching train, and believed that he saw the train, and, so believing, had no idea that the driver would try to cross the railway ahead of and in close proximity to the train, until the automobile turned to the right at a rate of speed that caused him, the fireman, to attempt to warn the engineer of the danger to deceased in time to prevent the collision. The undisputed and indisputable evidence shows that it would take a second or two after he saw the auto turn to the right to make the crossing for the fireman to impart his discovery to the engineer, and then it would take a second or two for the engineer to grasp the throttle and cut off the steam, the motive power, and then a second or so to grasp the lever and apply the air brakes, and in the meantime, as these things occurred, the rapidly approaching train was upon the crossing where the collision occurred and the fatal injury to Sloman was inflicted. That the auto was only 40 feet from the point of collision when the fireman first discovered or realized the perilous situation is conceded. No witness places the speed of the auto at less than 10 miles an hour; Indeed, we have been unable to find where any witness places such speed at less than 18 miles an hour. Conceding, however, that the auto was only 40 feet from the point of collision, moving at a rate of speed of 10 miles an hour, and conceding, as we must, that the train was running at a rate of speed of 40 miles an hour, it must be conceded that the train was only 160 feet from the point of collision when the fireman discovered the peril of the deceased, instead of 385 feet as found by the jury. As before pointed out, the findings of the jury as to the distance of the automobile and the train from the point of collision at the time the peril of the deceased was discovered cannot be harmonized. As before shown, the undisputed testimony of both the engineer and the fireman was to the effect that they used all the means at their command to prevent the collision after the discovery of the peril of the deceased. It is true that the witness Anthony testified that so far as he could tell no effort was made to stop or check the speed of the train after it was apparent *Page 274 that the automobile was in danger, but this testimony was clearly without any probative force, as he was in no position to know what effort was put forth by the operatives of the engine to stop or check the train.
A close and critical examination of the testimony of all the witnesses relative to the issue of discovered peril leads us to the conclusion that there is no evidence to support the answer of the jury to special issue No. 1, which is, in effect, a finding that the engineer and fireman discovered Sloman's peril in time to have avoided the collision in the exercise of ordinary care by the use of the means at their command. The operatives of the engine had the right to presume that the driver of the automobile, in approaching the railway track where his view was unobstructed, would not attempt to cross said track in front of and in close proximity to the rapidly approaching train, and in such case no duty rested upon them to anticipate danger to the driver of the automobile, until he turned to make the crossing, and not then unless said driver was traveling at such speed as would indicate to a person of ordinary care and prudence that the driver intended to cross ahead of the train.
It is well settled that to render a railroad company liable for injuries received by one on or about its track, under the theory of discovered peril, it must appear that the engineer in charge of the engine inflicting the injury realized the injured person's danger, and that he could not or would not extricate himself from the dangerous situation, yet failed to take precaution to avoid the injury. International Ry. Co. v. Logan (Tex.Civ.App.) 184 S.W. 301; Railway Co. v. Phillips (Tex.Civ.App.) 183 S.W. 806; Lapp v. Railway Co.,178 Ky. 647, 199 S.W. 798; Cornett v. Railway Co., 181 Ky. 132,203 S.W. 1054; Guthrie v. Railway Co. (Mo.Sup.) 204 S.W. 185, at page 186.
Appellee seemingly contends that, in the short space intervening between the notice of the danger of the deceased was passed from the fireman to the engineer, the engineer should have sounded the whistle, sanded the track, cut off the steam, and applied the air brakes. In the case of M., K. T. Ry. Co. v. Trochta (Tex.Civ.App.) 181 S.W. 761, the court held that where the engineer was obliged to choose instantly between attempting to stop the train or blow the whistle to warn the injured party who was approaching the railway track at a public crossing, choice of attempt to stop was not negligence.
Having reached the conclusions as above expressed, and in view of the fact that the evidence seems to have been fully developed, the judgment of the trial court is reversed, and judgment is here rendered for appellant.
Reversed and rendered.