
    HOUSTON BELT & TERMINAL RY. CO. v. HARDIN LUMBER CO.
    (No. 7220.)
    
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 18, 1916.
    Rehearing Denied Nov. 23, 1916.)
    1. Railroabs <&wkey;350(13) — Action foe Collision — Contributobt Negligence — Taking Case from Jury.
    In an action against railroad for damages to an automobile from a collision, the evidence to have authorized the court to take the plaintiff’s contributory negligence from the jury must have been such that there was no room for ordinary minds to differ as to the conclusion to be drawn from it.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13).]
    2. Appeal anb Error <&wkey;1001(l) — Question of Fact — Verbict.
    A finding of the jury upon testimony that warranted it is conclusive upon the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. &wkey; 1001(1).]
    3. Raileoabs <&wkey;350(33) — Damage from Collision — Question for Jury — Discovereb Peril.
    In an action against a railroad to recover damages to an automobile from a collision with defendant’s locomotive, held, on the evidence, that the trial court did not err in submitting the issue of plaintiff’s discovered peril to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1191; Dec. Dig. <&wkey;350(33).]
    ! 4. Trial &wkey;>256(l) — Instructions—Request.
    Where the charge was correct as far as it went, the defendant, if desiring a fuller charge upon the question presented, should have requested such instruction by a special charge, and, where it did not do so, its assignments of error thereon could not be sustained.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 633; Dec. Dig. &wkey;256(l).]
    Appeal from District Court; Harris County ; Wm. Masterson, Judge.
    Action by the Hardin Dumber Company against the Houston Belt & Terminal Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, and W. L. Cook, all of Houston, for appellant. Gill, Jones & Tyler and Hugh Potter, all of Houston, for appellee.
    
      
      Application for writ of error pending in Supreme Court.
    
   McMEANS, J.

The Hardin Lumber Company brought this suit against the Houston Belt & Terminal Railway Company to recover damages to an automobile owned by plaintiff, alleged to have been occasioned by a collision between said automobile and a locomotive operated by the employes of defendant on its railway track. The collision is alleged to have occurred at the intersection of Rice street and Walker avenue, in the city of Houston, at which place the locomotive was running upon the railway track in a westerly direction on Walker avenue and the automobile, driven by B. R. Hardin, an agent of the plaintiff, was proceeding in a southerly direction on Rice strqet. It is also alleged that when Hardin first saw the locomotive, he was within about 10 feet of the railway track, and that the locomotive was then about 150 feet distant, and approaching the crossing at the rate of about 25 miles per hour; that Hardin, observing the imminent danger, endeavored to stop the automobile, but, on account of the very short space between himself and the railway track, was unable to do so, and, realizing this, he attempted to hurry across, with the result that the locomotive struck the automobile just in front of the rear wheel on the left side, causing the damages alleged in the petition. Recovery is predicated upon the negligence of the defendant in the following particulars: (1) The locomotive was being run by the servants of defendant at a rate of speed in excess of that allowed by the ordinances of the city of Houston, viz., 6 miles per hour; (2) the locomotive bell was not rung as required by said ordinances; and (3) “that the defendant, by and through its agent, failed to stop the engine, and even failed to stop its speed, when it became cognizant of the perilous position of the plaintiff therein, but wantonly, negligently, and carelessly, and wholly without fault of the plaintiff, proximately caused the collision and consequent damages and injuries to the automobile. * * * >» The defendant answered by general denial and a plea of contributory negligence of plaintiff’s agent, tbe driver of tbe automobile, to the effect: (1) That be failed to keep a proper lookout before endeavoring to cross tbe track; (2) that be failed to take any precautions as be attempted to cross tbe track, though having adequate knowledge of tbe surroundings and of the danger; and (3) that be negligently and carelessly continued tbe automobile in motion at a careless and reckless rate of speed after seeing, and being in a position to have seen, tbe approaching locomotive in time to have, stopped and avoided injury. Tbe case was tried before a jury, and resulted in a verdict and judgment for plaintiff for $1,022, from which tbe defendant has appealed.

Tbe appellant admits, and we find, that tbe evidence is sufficient to raise tbe issue of tbe negligence of tbe operatives of tbe locomotive in running tbe locomotive at a greater speed than allowed by tbe ordinances of tbe city of Houston, and also in failing to ring tbe locomotive bell; and tbe action of tbe court in submitting these issues to tbe jury is not attacked by any assignment of error in this court.

Appellant, by its first assignment of error, complains of tbe action of the court in refusing to give a special instruction asked by it, peremptorily directing a verdict in its favor. It contends, in this connection, • that it conclusively appears from tbe evidence that tbe driver of tbe automobile, plaintiff’s agent, was guilty of contributory negligence as a matter of law, barring recovery, in one or more of tbe respects alleged in tbe defendant’s answer.

Before this court can say that any of tbe alleged acts of the driver on tbe occasion in question was contributory negligence as a matter of law, such acts must have been in violation of some law, or that tbe facts were undisputed and admitted of but one inference regarding .the care of tbe party in doing tbe acts in question. In other words, to have authorized tbe court to take the question from the jury, tbe evidence must have been of such character that there was no room for ordinary minds to differ as to tbe conclusion to be drawn from it. Lee v. Railway, S9 Tex. 588, 36 S. W. 63.

We have carefully examined the evidence in tbe record bearing upon tbe question of the' contributory negligence of tbe driver of the automobile in tbe respects alleged in tbe defendant’s answer, and have concluded, and so find, that tbe evidence, while sufficient to raise tbe issue, was not undisputed, but was of such character as to admit of a finding by tbe jury that tbe driver was free from contributory negligence in tbe respects charged in tbe defendant’s answer, and.as tbe jury found against tbe defendant upon tbe issue, upon testimony that warranted it, their finding is conclusive upon this court. Tbe assignment and tbe several propositions thereunder are overruled.

Tbe second assignment complains of tbe action of tbe court in submitting tbe issue of discovered peril, tbe contention being, in effect, that the evidence adduced upon this issue was not sufficient to take tbe case to tbe jury.

Hardin, tbe driver of tbe car, testified, in substance, that be was travelling south on Rice street at about tbe speed of 10 or 12 miles per hour, and that when be reached a point 10 or 12 or possibly 15 feet from the railway track be saw the locomotive, then at a distance of about 150 feet from the crossing, and coming at a rate of speed of about 25 miles per hour; that, realizing the danger of a collision, be put tbe automobile into reverse and tried to stop, but that, on account of tbe street being wet and slippery, tbe wheels slipped and tbe automobile continued its forward motion; that, seeing be could not stop in time to avert a collision, be put tbe automobile in forward motion and tried to burry across, but without success, and the collision resulted. He further testified that there was no slacking of tbe speed of tbe locomotive from tbe time be first saw it until tbe impact, and that be was watching tbe locomotive from tbe time be first saw it until the collision occurred. He further testified:

“They apparently didn’t see me at all, * * * I sat there listening, and I said, ‘Ain’t he ever going to see me; ain’t he ever going to stop?’ but he just kept on coming down there, and never did see me.”

Tbe evidence sufficiently shows that at tbe time tbe locomotive and automobile reached points from which the operator of each could have seen tbe other, there was nothing to obstruct the view of tbe engineer, and be testified that be was keeping a lookout on tbe side of tbe track from which tbe automobile was approaching, but that be did not see tbe automobile until be was within Í5 feet of it, and that be then threw tbe brakes into emergency and used all tbe means at bis command to stop before striking tbe automobile, but could not stop. He further testified that when be discovered tbe automobile, be was traveling at a speed of 6 or 8 miles per hour, and that at that rate of speed be could have stopped in .the length of bis engine. There was other testimony from which tbe jury might have concluded that tbe ioeomotive, if going at the rate of 6 miles per hour, could have been stopped in tbe space of 8 or 10 feet, and still other testimony that it could have been stopped within 15 or 20 feet. But the locomotive did not, in fact, stop after tbe collision until it bad run 75 feet, according to tbe testimony of one witness, 100 feet according to tbe testimony of another, and 150 feet according to tbe testimony of a third. Two witnesses testified that tbe automobile was knocked 30 or 40 feet up tbe track from tbe crossing.

Tlie jury was not compelled to credit all the testimony of the engineer or reject it all, but it was within their province to give credence to a part of. it and reject the rest. It was within their province, therefore, to say that the engineer spoke the truth when he testified that he was keeping a lookout on the side from which the automobile approached the crossing, and to reject that part of his testimony to the effect that he did not discover the automobile and the danger to it and its occupant until he was within 15 feet of it. There being an absence of obstructions to his vision from the time he might hare seen the impending catastrophe had he been in the exercise of proper watchfulness, and the jury having the right to believe that part of his testimony in which he said he was keeping a lookout, it was within their province to say that he did actually discover the automobile and realized the danger at a time when, by the use of the means at hand, he could have stopped and avoided the collision. Again, the jury had the right to say that the statement of Hardin, the driver, that the engineer never did see him was merely conjecture upon his part, arising from the fact that he was in plain view of the locomotive, and that, although the danger was patent, there was no diminution of the speed of the locomotive. Again, the jury might have accepted as true the statement of the engineer that he did not, in fact, discover the automobile until he was within 15 feet of it, and that he was then going at a rate of speed of 6 or 8 miles per hour, and yet have discredited his statement that he used all the means at his command to stop and avoid the collision, in view of the testimony of another witness that a locomotive, moving at that rate of speed, could have been stopped in 8 or 10 feet, thereby avoiding a collision, or in view of the statement of still another witness that it could have been stopped in 15 or 20 feet, thereby reducing the speed of the locomotive so as to have allowed the automobile to safely cross the track ahead of the locomotive by a narrow margin, or, in case of a collision, probably minimizing its effect; it having been shown by the testimony of another witness that the locomotive did not in fact stop until it had run a distance of 75 feet, and by that of another that it ran 100 feet, by another that it ran 150 feet, and by others that the automobile was knocked by the impact a distance of 30 or 40 feet.

From the consideration of the foregoing, we are of the opinion that the court did not err in submitting the issue of discovered peril; and the second assignment and all propositions thereunder are overruled.

The court’s charge is not subject to the criticism presented in the third assignment. The charge is correct as far as it went; and, if defendant desired a fuller charge upon the question presented, it should have requested such instruction by a special charge. The assignment cannot be sustained.

We deem the fourth assignment to be without merit, and it is overruled without further comment.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed. 
      
      &wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     