Louisiana Ry. & Nav. Co. of Texas v. Humphreys

JONES, C. J. Appellee, P. L. Humphreys, recovered judgment in the district court of Hunt county- against appellant, Louisiana Railway & Navigation Company of Texas, in the sum of $700 for personal injuries alleged to have been received in a- collision of appellant’s passenger train with an automobile in which he was a passenger. Appellant has duly perfected its appeal to this court. The facts aré as follows: The said automobile was operated for the purpose of carrying passengers for hire, and appellee and his wife had taken passage in same, and were riding on the rear seat of said automobile, which appears to have been an ordinary five-passenger car. Wesley street is a public street in the city of Greenville, and runs north and south. It crosses appellant’s tracks at right angles in said city. On the west side of Wesley street, and just north of *871 appellant’s tracks, is a large lumber yard, witli sheds extending to the south line of the railroad right of way and to the sidewalk on the west side of Wesley street. There are three tracks at said crossing; the north and south tracks being switch tracks, and the center track being the main line. , On the north switch track two box ears were standing; the east end of the one nearest Wesley street extending to the crossing on the west side of said street. That portion of Wesley street crossed by appellant’s tracks is heavily burdened with traffic, and appellant had installed at said crossing an automatic electric bell for the purpose of warning the users of the street of the' approach of trains. Because of the obstruction above described, one approaching said crossing from the north on Wesley street could not see a train on the main track coming from the west until he had cleared the north switch track. On the night of May 4, 1924, the occasion in question, and at about 10 o’clock, the front of the automobile in which appellee was riding collided with the front part of an engine that was pulling one of appellant’s passenger trains, and said automobile was carried a distance of approximately 150 to 175 feet before the train was stopped. The said train approached the crossing from the west, and the front wheels of the automobile had just crossed the north rail of the said main track when the train was discovered, and the collision occurred almost simultaneously. Appellee received injuries directly and proximately caused by said collision. In obedience to the verdict of the jury in appellee’s favor, we find that on said occasion the said automatic bell did not ring a warning on the approach of the train, and the statutory signals of blowing the whistle and ringing the bell were not given by appellant’s employes in charge of the operation of the said engine. The case was submitted to the jury on a general charge, as follows: (a) As to whether appellant’s employes, in operating said train as it approached the crossing, failed to operate same at such rate of speed as would have enabled them to retain control thereof, and as to whether such failure, if any, was negligence ; (b) as to whether the electric warning signal at said crossing failed to ring as said train approached said crossing, and as to whether such failure, if any, was negligence; (c) as to whether said train was approaching said crossing at a greater rate of speed than 10 miles per hour; (d) as to whether there was a failure to give the statutory signals in approaching said crossing by blowing the whistle within a distance of at least 80 rods from same, or a failure to ring the bell on said engine within said distance, and to keep same ringing continuously until said train reached said crossing, and as to whether the jury believed that any or all of said acts or omissions, if any, were the direct and proximate cause of appellee’s injuries, if any. Appellant, by timely exceptions to the charge, and appropriate assignments of error, has duly raised all the issues herein discussed. Appellant requested peremptory instruction in its favor, on the.theory that none of the issues above submitted were raised by the, evidence. Error is assigned also on the admission of certain evidence, which will be hereinafter discussed. The gist of appellant’s contention in reference to its right to peremptory instruction is based on the theory that, as there was direct and positive evidence that the statutory signals were properly given, the said electric bell was ringing its warning, and that this character of evidence established a fact that is not disproven by what appellant styles mere negative testimony, and that the other issues of negligence submitted were not raised, either by pleading or evidence. It is not necessary to pass upon this contention as to the effect of ’negative testimony, for, in our opinion, there was affirmative evidence offered by appellee that tended to establish the failure to give each of said signals. Both appellee and his wife testified that as the automobile approached said crossing they were listening to hear whether the electric warning bell,was ringing and to hear whether any train sounded a whistle from its engine or rang its bell, and that they did not hear any of such signals. This amounts to positive testimony that signals were not sounded. The assignments of error in this respect, are overruled. It is also contended that appellee’s pleading does not raise the issue as to the due enactment of a speed ordinance by the city of Greenville, and that said ordinance was in force at said time, and, by its terms, prohibited the operation of trains at said crossing at a greater rate of speed than 10 miles per hour, and that the court erred in admitting over its timely objection such speed ordinance. It is also contended that the evidence in reference to the violation of this ordinance is not of sufficient potency to authorize the submission of the issue of its violation. In connection also with this issue, error is assigned on the admission of appellee’s testimony to the effect that in his judgment said train was beipg operated at a speed of 25 miles per hour, for the reason that it appeared from appellee’s testimony that it was impossible for him to estimate the speed of said train at said time. As a basis for the introduction of said ordinance, the petition alleged that appellant’s employes “failed and neglected to run said train within the speed limit as regulated by a city ordinance of the city of Green-ville.” There was no special exception urged against this allegation, and the question is whether it is sufficient as against a general demurrer. Appellee having based his cause of action in part on the violation of a speed ordinance of the city of Greenville, it was necessary, as against a general demurrer, to allege that said ordinance had been duly enacted and was in force at said time, for courts do *872 not take judicial notice of city ordinances. City of Austin v. Walton, 68 Tex. 507, 5 S. W. 70; Brush Elec. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S. W. 229; Railway Co. v. Boyed (Tex. Civ. App.) 201 S. W. 219. It being necessary for appellee to allege the due enactment and existence of a speed ordinance in the city of Greenville and its violation by the operatives of appellant’s train, was this allegation sufficient to admit the said ordinance in evidence? The effect of this pleading is to allege that an ordinance of the city of Greenville regulated the speed of trains within its corporate limits, and that appellant had violated same on the occasion in question. Under this allegation, as against a general demurrer, we can infer that said ordinance was duly enacted and in existence at said time. There is evidence from experienced train operatives that at the time and just before the collision the train djd not exceed a speed of 10 miles per hour; all but one placing the speed at from 6 to 8 miles per hour. The evidence of appellee as to the speed of the train is that when he first became aware of the presence of the engine the front wheels of the automobile were just over the railing of the main track, and “when I first saw ttie train it looked to me like it was about 15 or 20 feet away. It looked like it was right there. I could form an idea about how fast the train was running when I first saw it. I suppose, in my judgment, that train was running about 25 miles an hour.” This evidence of appellee’s and the distance the train traveled after the collision before it came to a stop is the entire evidence on which the material issue of fact as to whether the speed of the train exceeded 10 miles an hour was submitted. To this evidence appellant timely objected, on the ground that appellee was not qualified to give an opinion as to the speed of the train, in that his. own testimony showed that he was not in a position to judge of the speed or to give any opinion thereon. We are of opinion that under the circumstances of this case this objection should have been sustáined. The testimony of appellee does not show that he formed an opinion at the time, and is giving expression to that opinion, but, on the contrary, it shows that he was expressing his opinion formed from a review of that occurrence. One who has shown that he had an opportunity to observe the speed of a train, and that he formed an opinion at the time as to its speed, usually is permitted to estimate its speed; the important factor being that the witness placed himself in a position to observe, and did observe, the moving train. Mr. Chamberlayne, in discussing this character of evidence, uses the following language: “That a witness should be regarded by the court as competent to give a helpful estimate as to speed, it i? essential, as in other connections, that he should have had reasonable opportunities for observing and adequate mental powers to co-ordinate what he perceived into an inference which the jury may consider with advantage. * •* * In a pre-eminent degree, the qualities of an observer who ventures to state an inference as to the speed of a railroad train will receive careful consideration from the court. * * * In case of an estimate as to the speed of a railroad train, suitable opportunities for perception are essential.” Section 2090, 3 Ghamberlayne’s Modern Law of Evidence. In the same section the author says: “One who has no opportunity of noticing the speed of a train before being struck is not regarded as qualified to state the rate of motion from the force of the impact.” If a witness is shown to be in a position to observe the speed of a train, and from such observation forms an opinion as to such speed, he should be permitted to give such opinion whether he is shown to be experienced or inexperienced in estimating the speed of trains. The amount of experience he has had is considered as going to the weight of his evidence, and not to its admissibility. It is a matter for the court to decide from the witness’ testimony whether such witness has shown himself to be in a position as that ho could have formed an estimate of the moving train. When such position is shown, then the weight to be given the opinion of the witness as to the train’s speed is for the jury. In the instant case, it was about 10 o’clock at night. The train was seen by the witness only when it. was bearing down on him and at a distance of 15 or 20 feet. Manifestly there was no opportunity for the witness to “co-ordinate what he has perceived into an inference which the jury may consider with advantage.” While this evidence was of no potency, yet the fact that the court overruled the objection and permitted the evidence to go to the jury was an assurance -to the jury that it was proper for their consideration, and its admission necessarily harmful to appellant. The burden rested upon appellee to prove this issue of negligence by a preponderance of the evidence, and we do not think the admission of appellee’s said evidence even tended to discharge this burden. We overrule the assignments of error in reference to the pleading of the ordinance and its admission in evidence, but sustain the assignments of error in reference to the failure of the evidence to raise this issue of negligence and the assignment of error complaining of the admission of appellee’s said evidence in reference to the speed of the train. While the negligence of appellant in failing to give the statutory signal and its failure also to have the warning bell in such repair as it would ring are sustained by the *873 evidence, and are sufficient in themselves to sustain this judgment, yet, as negligence in each of these respects was a sharply controverted issue of fact, and the case having been submitted on a general charge, the majority of this court is unable to say that the jury’s verdict was not based on the issue of a violation of the said city ordinance. We have carefully considered all other assignments of error, with the result that we are of the opinion that none of them show reversible error. The charge of the court prohibiting the jury from reaching a verdict by a method commonly known as “lot” is perhaps erroneously drawn, but we fail to- see where any injury resulted to appellant. For the reasons above stated, it is the opinion of the majority of this court that this cause should be reversed and remanded for another trial not inconsistent with the views here expressed.