Opinion
No. 3649.
March 14, 1929. Rehearing Denied March 28, 1929.
Appeal from District Court, Hunt County; Newman Phillips, Judge.
Action by J. S. Stegall against the Missouri-Kansas-Texas Railroad Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and rendered.
The suit was by appellee J. S. Stegall against appellant, Missouri-Kansas-Texas Railroad Company, to recover the value, alleged to be $825, of an automobile destroyed by fire as the result, it was alleged, of negligence of appellant. The appeal is from a judgment in appellee's favor for $265 which a jury found to be the value of the automobile.
It appeared from evidence heard at the trial that, while the automobile belonged to appellee he had loaned it to Milton Thomas, who had possession of and was using it at the time it was burned. Thomas had driven the automobile east on Pickett street in the city of Greenville to the right of way of appellant's line of railway, running north and south, and was in the act of driving it upon and over said right of way when it ran into a ditch thereon. The automobile was burned in an effort made to get it out of the ditch.
It appeared, further, that at one time Pickett street had extended across appellant's right of way and on east but that, by an agreement between the city and appellant, use, of the part thereof crossing said right of way had been abandoned, and that said part had not been used as a street for the thirty years immediately preceding the time of the accident resulting in the burning of the automobile. In compliance, it seems, with terms of the agreement referred to, appellant had provided and maintained a way by which persons traveling east on Pickett street, when they reached appellant's right of way, could go north on same to Washington street, which crossed said line of railway, or could go south to streets in that direction.
Testifying as a witness, Milton Thomas said that, at the time of the accident, he was going to King street, which was one block east of appellant's line of railway; that he was not acquainted with the streets in that part of the city, and "did not know that Pickett Street did not cross the railroad tracks." "When I. got to the railroad on Pickett Street I waited," he said, "for a train to switch; there was a train on the track in front of me. * * * There was a bunch of negroes walking down across the sidewalk, waiting for the train like I was, but they were closer to the ditch than I was, they were still further east of me. Coming from the west towards the railroad track it is a little down hill before you get to the railroad track. Before I got to the railroad track I saw some cars on the other side of the track, * * * a car with its lights on, shining west, and two cars over to the right, one facing east and the other west, they were stopped there. * * * Pickett Street is paved on the east side of the railroad track; you can see across the track. * * * After the train passed from in front of me I noticed that the negro pedestrians walked across the railroad and then I put the car in gear and started across. Then the front end of the car went in the ditch; it went in five or six feet, I guess; it did not go quite to the bottom. * * * When the front wheels of the car went into the ditch the front end of the car dropped down until the bumper was holding it against the far side of the ditch; the bumper had gone across to the far bank of the ditch and held it up, with the help of the fenders. The front end of the car was more than two or three feet lower than the back end; it was almost standing on the radiator. * * * I got out of the car and went to the West End Garage to get a wrecker to pull me out. * * * I got Bob Byrd with the wrecker. * * * When we got there (back to the automobile) he (Byrd) hooked on with the wrecker. He had me to get in the car, and I got in and started the motor at his request, and stepped on the starter, and it caught on fire. He was hooked on to the car at that time. I stepped on the starter to help him pull out; he was ready to go and could not pull out by himself and wanted me to help him. The car burned up right there. That was about 8:15 at night, I suppose, something like that, on the 15th of September, last year (1927). On Pickett Street where it comes down to the right of way, or to this ditch, there is a culvert on each side of the Street; it extends out to the railroad, or to the ditch, on either side of the street. I had never been across that street, across that crossing before. * * * I had never been in that part of town before. * * * There was no banner or obstruction or any sign of warning along there at the Katy right of way to warn me or persons traveling that the street did not cross the railroad."
Thomas testified further that the lights on the automobile were good, and that they were on while he was waiting for the train in front of him to pass; that he did not see the ditch; that there were lights at points near where he was while waiting for the train to pass, but that same did not light up what he thought was the Pickett street crossing over appellant's right of way. It appeared from the testimony of the witness Newton that appellant's tracks were on lower ground than Pickett street was on, and that one traveling east on Pickett street could not see the tracks until he got within 100 feet of appellant's right of way.
The negligence charged against appellant and found by the jury was its failure "to erect any barrier, sign, obstruction or notice to the traveling public that the street did not extend on east across its tracks."
Bruce McMahan, of Greenville, for appellant.
Bowman Bowman, of Greenville, for appellee.
The question presented by the proposition in appellant's brief may be stated as follows: Did it appear that appellee had failed to discharge the burden resting upon him to prove that appellant was guilty of actionable negligence as charged against it? We think the question should be answered in the affirmative.
It may be conceded there was evidence warranting a finding that appellant was guilty of negligence in not providing means reasonably sufficient to warn persons traveling east on Pickett street to its right of way of the existence of the ditch thereon. Flint v. Bowman, 42 Tex. Civ. App. 354, 93 S.W. 479. And it may be conceded further that it appeared such negligence was the proximate cause of any injury to the automobile resulting directly from its going into the ditch. But this suit was for injury to the car by fire alone, caused, not by the car going into the ditch, but by Thomas' act in starting the motor. Hence the question for decision may be narrowed and stated as follows: Was negligence of appellant as charged against it the proximate cause of the burning of the automobile?
Appellant insists the answer should be in the negative, because it appeared such burning was due immediately to, and would not have occurred but for, the act of Thomas in attempting to start the motor of the automobile as he did. It is argued in support of that view that it should not be said a reasonably prudent person would have anticipated that Thomas would attempt to start the car as he did, nor that such an attempt, if made, would result as it did.
Appellee insists the jury had a right to answer the question in the affirmative as they did; and, in support of that view of the evidence, argues it was permissible to conclude that a reasonably prudent person would have anticipated any one in charge of the automobile would not leave it in the ditch, but would attempt to get it out of same, and would have anticipated, further that, in making such attempt, the car's motor would be started, and that starting same might result in injury to the car by fire.
We think it should be held that Thomas' act and its consequences were not such as appellant reasonably should have foreseen would result from its negligence, but that such act was an "intervening efficient cause" which broke the sequence of appellant's negligence, and that same therefore was not actionable within the law applicable. Milwaukee St. P. R. Co. v. Kellog, 94 U.S. 469. 24 L.Ed. 256; Seale v. Gulf, etc., Ry. Co., 65 Tex. 274, 57 Am.Rep. 602; Galveston, etc., Ry. Co. v. Bell. 110 Tex. 104, 216 S.W. 390; Alice. Wade City C. C. Telephone Co. v. Billingsley, 33 Tex. Civ. App. 452, 77 S.W. 255: Thompson v. Ry. Co., 91 Ala. 496, 8 So. 406. 11 L.R.A. 146; 1 Thompson on Negligence, § 49 et seq.; 22 R.C.L. 132 et seq.; 45 C.J. 905, §§ 480, 491 et seq., 931. The testimony of Thomas was that the front end of the car "went in the ditch five or six feet"; that the "front end dropped down until the bumper was holding it against the far side of the ditch"; that the bumper "had gone across to the far bank of the ditch and held it up, with the help of the fenders"; and that the car "was almost standing on the radiator."
We do not think it would have occurred to a reasonably prudent person that any one operating an automobile which had gone into a ditch as the one in question had, according to the testimony referred to, would attempt to get the car out of the ditch in the way Thomas did, without first looking to see if gas was escaping therefrom. Certainly, if appellant reasonably should have foreseen that such an attempt would be made, and if made would result in starting a fire that would burn the car, Thomas and the man he employed to assist him should have foreseen as much. It is plain we think, that appellant's negligence and Thomas' and his assistant's act did not concur in causing the fire, and that injury to the car by fire would not have occurred had proper care been used in getting it out of the ditch.
The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit.