Appellee brought this suit against the above-named appellants for damages for personal injuries alleged to have been caused by the negligence of their servants and employees.
It is alleged that appellants were operating a freight train which was entering the city of El Paso, going west, at the intersection of Copia street, which runs north and south; and, as he was in the act of crossing defendants' track, it struck his automobile, in which he was riding, and thereby seriously and permanently injured him. The acts of negligence charged as submitted by the court are: Speed of the train in excess of 10 miles an hour in violation of a city ordinance; failure to blow the whistle and failure to ring the bell.
Appellants alleged by way of defense, general denial, negligence, and contributory negligence on the part of appellee, which was the direct and proximate cause of his injuries, in that he drove his automobile upon the track at the crossing in controversy at a reckless, dangerous, and unlawful rate of speed immediately in front of the approaching train without looking or listening for *Page 745 such train, when by looking and listening, and by the use of ordinary care on his part, he could have seen and heard said train in time to have stopped his automobile and thereby avoided the accident, etc.
The case was tried to a jury, submitted upon general charge, and resulted in verdict and judgment for appellee for $10,000. Appealed.
The first assignment is not followed by a proposition, and is not a proposition itself, so is not considered.
Taking up the propositions in the order which seems most orderly, the fourth is predicated upon the following argument of plaintiff's counsel:
"A `quotient verdict' is where the jurors agree that the amount of their verdict will be determined by each juror putting down the amount he believes the plaintiff is entitled to receive, and adding the twelve amounts together, and dividing the sum by twelve, and the quotient is the amount of the verdict.
"Now, gentlemen, that is an illegal verdict, and the court, of his own motion or at the request of defendant, may set it aside and grant a new trial when this is shown.
"But, gentlemen, it is not improper for each juror to put down the amount he believes the plaintiff is entitled to receive and add the twelve amounts together and divide that sum by twelve and use the quotient as a working basis to arrive at the amount of the verdict. The vice consists in agreeing in advance that the quotient so arrived at will be your verdict."
Similar argument was held to be error by the Court of Civil Appeals at Fort Worth, Tex. We concur in this ruling, and adopt the reasons for it therein assigned. T. P. Ry. Co. v. Rasmussen (Tex.Civ.App.)181 S.W. 212.
If the argument had been a positive warning against arriving at a verdict that way, it would not constitute reversible error, but it is not such, but an instruction that they may do so, provided there is no agreement beforehand to be bound by the result. But, since the verdict is very reasonable under the facts, and nothing to indicate that the defendant's case was prejudiced thereby, this should not be cause for reversing the case.
Propositions 2 and 3 assign error in the form and substance of certain paragraphs of the court's charge to the jury. In effect, the objections are that there was no evidence sufficient to authorize the court to submit the issues and that they are so framed as to assume that plaintiff was injured in such a way as to authorize a verdict for damages for injuries sustained.
These objections are not supported by the record, and for that reason the assignments and propositions are overruled.
The first, fifth, sixth, and ninth urge that the court erred in refusing to charge the jury to find for the defendant.
The physical facts surrounding the accident and injury are revealed by the evidence to be substantially as follows: At the point of accident the railway right of way and track run east and west, and the street along which the plaintiff was traveling runs north and south. The plaintiff was struck at the intersection by a freight train going west.
Upon direct examination the plaintiff testified:
"I live north of the track (meaning defendant's railway track.) I was in an automobile, and had started home from Alameda avenue, which is south of the track. I don't know, of course, just how fast I was going, 12 or 15 miles an hour possibly, just an ordinary gait. I started across that track, and that train just hit me almost by the time I saw it. When I saw it I was right practically right on the track. I didn't have time to think, to tell you the fact. I was right on it. I cross that track repeatedly. I glanced toward town, there was a passenger train comes out down there along that time of the night, and when I glanced the other way that train was right on me. I didn't hear it. It hit me so quick until I can't tell where I was hit."
On cross-examination:
"I knew that a great many trains passed there daily. I did look for a train that night. I never crossed a track without looking for a train. I didn't see the headlight; I didn't see the train. I didn't hear it. Yes, sir; I was listening for it. That Ford was 1917 model. It was an old car, and all old cars make some noise. Well, yes, possibly I drove up at the rate of speed I had been driving across the track."
This happened between 9 and 10 o'clock at night.
He further testified:
"My hearing is all right. As you approach the crossing there are obstructions on both sides. There is a brick building on the right-hand side, which would be the east side, it goes out, I reckon, to the right of way. And on the other side there is a residence and some trees. You don't see anything until you are right at it on either side. I had crossed at that crossing more than 100 times. I knew that a great many trains passed there daily."
The question as to whether the view of the crossing was obscured was not submitted to the jury, but there is no testimony upon the question that in any way contradicts that noted above of the plaintiff.
The only persons who were present to view the accident were the plaintiff and the engineer and fireman. The latter say that they did not see the automobile until it dashed within 10 feet, more or less, of the cowcatcher. The car was struck about the right hind wheel.
The evidence conclusively establishes the fact that, if plaintiff had slowed down to 6 miles per hour, as is required by statute, not nearer than 30 feet of the track, he would have been beyond the obstruction and *Page 746 in a position to see the coming train, for the headlights were burning brightly.
The verdict of the jury amounts to a finding that the train was running at an excessive rate of speed in violation of a city ordinance, and that there was a failure to blow the whistle and failure to ring the bell, and that each caused, or proximately contributed to cause, the accident. Plaintiff relies upon these findings, which the evidence is sufficient to prove, for an affirmance of his judgment, and appellants urge that the evidence quoted above shows that he was guilty of contributory negligence as a matter of law, and that the trial court should have instructed a verdict for the defendants, and we have concluded that the point is well taken, for the uncontradicted evidence, admissions of plaintiff himself, and the surrounding facts and circumstances present a clear case of a man in an automobile rushing in front of a moving train under circumstances which present no excuse for his not discovering it in time to have avoided the collision.
In reaching this conclusion we are aware of, and have duly considered, the general rule prevailing in this state that the failure of one about to go over a public road crossing to look and listen does not of itself constitute negligence as a matter of law. Therefore we do not base our holding alone upon such facts, but that from all the facts and circumstances, in addition to the plaintiff's admissions that he did not stop, nor slow up, nor look in the direction of the approaching train, it conclusively appears that the manner of his attempted crossing of the track is so opposed to the dictates of common prudence that no careful person would have done so. I. G. N. Ry. Co. v. Edwards, 100 Tex. 22,93 S.W. 106.
And we are of the further opinion that it was in direct violation of the statutory duty imposed by article 8201, Vernon's Ann.Pen. Code Supp. 1918, which is:
"Duties as to Crossing of Railroad Tracks. — Any person driving a motor vehicle * * * when approaching the intersection of a public * * * highway with the tracks of a steam railroad * * * where such * * * highway crosses such track or tracks at grade, and where the view of the said crossing is obscured, either wholly or partially, shall before attempting to make the said crossing, and at some point not nearer than thirty feet of the said track, reduce the speed of his motor vehicle or motorcycle to a speed not to exceed six miles per hour before making the said crossing, unless there are flagmen or gates at such crossing and such flagmen or gates show that the way is clear and safe to cross such track or tracks. * * *"
Appellee questions the applicability of this statute to the facts of this case. In answer to this we adopt the observations of Smith, J., of the San Antonio Court, in San Antonio A. P. Ry. Co. v. Singletary (Tex.Civ.App.) 251 S.W. 325, without quoting it, and hold that it does apply.
Under the facts the verdict is not excessive as contended by appellants. There are serious and permanent injuries.
The eleventh is overruled as without merit.
Reversed and rendered.