Opinion
No. 3777.
January 15, 1930. Rehearing Denied January 23, 1930.
Appeal from District Court, Hunt County; Grover Sellers, Judge.
Action by Charles Kimball against the Louisiana Railway Navigation Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
The suit was to recover for the damages occasioned to an automobile in a collision on the public crossing at Lee street in the city of Greenville. The collision occurred about 11:15 p. m. of March 7, 1928. The appellee was traveling west on Lee street, toward the crossing. At the time he approached the crossing the appellant's train started to move across Lee street, coming from behind a two-story freight depot along the east side of the railroad. The train consisted of four box cars which were being pushed by the locomotive in the rear. The appellee testified that he was "about three feet from the track on which the box cars were moving which struck my automobile when I discovered that there was a train approaching." He further testified that he looked for an approaching train before he went upon the crossing, and did not discover one until he was near the track. The appellee alleged as acts of negligence, which were submitted to the jury by the court in a general charge, namely: (1) The failure to give warning of the approach of the train; (2) the failure to keep a lookout; (3) the failure to have a light on the front of the box car. The appellant pleaded contributory negligence in (1) the appellee's failure to swerve his automobile to or near the north side of Lee street; (2) the appellee's failure to look and listen for an approaching train; (3) the appellee's failure to use care in the manner in which he was driving his automobile as he approached the crossing. No objection was made to the court's charge. The jury returned a verdict in favor of the plaintiff, fixing the damages at $1,400. There is no complaint of the jury's verdict except as relates to the amount of damages.
There is involved in the verdict of the jury a finding of fact that the appellant was guilty of negligence, as alleged, proximately causing the damage to the automobile, and that the appellee was not guilty of contributory negligence in approaching the crossing or driving the automobile. There is evidence to support the jury findings. There is evidence to warrant the jury finding as to the amount of damages.
B. M. McMahan, of Greenville, for appellant.
T. D. Starnes and Clark, Harrell Clark, all of Greenville, for appellee.
By the first and second assignments of error it is contended that the court erred in overruling the appellant's objections made to the following questions to the plaintiff and his answers thereto, namely: (1) "Did you listen for an approaching train?" And (2) "Did you make an effort to stop your car?" The plaintiff answered each question, "Yes." The objections made were that the questions were leading questions. The case of Ry. Co. v. Dalwigh, 92 Tex. 655, 51 S.W. 500, supports the proposition that the form of the questions tended to make them technically objectionable as leading questions. But in this case no prejudice can be assumed to be sustained by the evidence. At the time of the decision above, Rule 62a had not been adopted, providing that no judgment shall be reversed on appeal unless the error complained of was calculated to cause the rendition of an improper judgment. It appears that appellant on cross-examination of the appellee fully developed the evidence complained of. The plaintiff testified, on cross-examination, as follows: "When I saw those cars and I was about 12 feet from the track, I didn't stop my car because I couldn't tell they were moving. A man would naturally expect a train to have a light on them, and I got in three feet of the track before I realized the cars were moving. Yes, I certainly tried to stop. No, I never tried to stop when I first saw the cars, because there was no light on the train. I never tried to stop until I saw the train was moving, and at that time I was in about three feet of it and my car was already on the track." Also: "I looked for train lights — looked for red lights on street crossings. I look for lights when I cross railroad crossings. * * * There wasn't any light on the north end of the box car. No I didn't look on it to see if there was a headlight on there; I just looked to see if that crossing was open, just the same as anybody would. Naturally, a box car coming out of the dark, if it had any light on it at all I could have seen it. No, I didn't look at the box car to see if there was a light on it, before it hit my car. * * * I certainly was thinking about a train and was looking for a train. I naturally supposed a train going across there would have a light on it." It was uncontroverted that the train did not whistle for the street crossing. The engineer who was placed upon the witness stand by the appellee, testified: "I didn't whistle for Lee Street. * * * I started when I got the signal; I didn't whistle (for the street crossing)."
The third assignment of error is based upon the testimony of the appellee as to the value of his automobile before the collision. The verdict of the jury is fully supported by evidence of the value of the car, independent of the appellee's evidence, and the assignment is therefore overruled because the ruling of the court, if error at all, was harmless.
The seventh assignment of error complains of the verdict being excessive. We are not prepared to set aside the findings by the jury as to the amount of damages.
The other assignments present objections to evidence that we think do not warrant a reversal of the judgment. The assignments are therefore overruled.
The judgment is affirmed.