¶1 (dissenting). On special issues submitted to them the jury found that Charles Merchant “looked to see whether or not a train was approaching the crossing before he drove his truck thereon.” It appeared from undisputed testimony that the view from the road he was traveling of the railroad track for a distance of at least 600 yards in the direction from which the train approached the crossing was wholly unobstructed. It thus appearing that said Merchant looked for, the train, and that there was nothing to prevent him from seeing it, it seems to me the only reasonable inference is that he did see it approaching the crossing before he drove thereon. If he did, I think the inference that he was guilty of negligence in attempting nevertheless to cross the track is not escapable. Schaff v. Combs, 194 S. W. 1159. Therefore I respectfully dissent from the conclusion of the other members of the court that the judgment should be affirmed.
212 S.W. 970
Schaff v. Merchant
Decided May 22, 1919
Court of Appeals of Texas · decided 1919-05-22
<p>1. Railroads <&wkey;348(l) — Collision at Crossing — Evidence.</p> <p>In an action for death of driver of automobile truck struck by a train at a crossing, evidence held sufficient to sustain jury finding of negligence proximately causing the injury.</p> <p>2. Railroads <&wkey;348(6) — Collision at Crossing — Contributors Negligence — Evidence.</p> <p>In an action for death of driver of automobile truck struck by a train at a crossing, evidence held insufficient to show that driver was guilty of contributory negligence.</p> <p>Willson, C. J., dissenting.</p>
Cited by 2 later decisions — most recently April 1923
2 state decisions
Key passage — most relied on by later courts
““It thus appearing that Merchant looked for the train, and that there was nothing to prevent him from seeing it, it seems to me the only reasonable inference is that he did see it approaching the crossing before he drove thereon. If he did, I think the inference that he was guilty of negligence in attempting nevertheless to cross the track is not escapable.””
quoted by 1 later decision, including Missouri, K. & T. Ry. Co. of Texas v. Merchant
Relies on Schaff v. Combs
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1919-05-22
View the full empirical analysis of this case →