W. C. ford v. Panhandle & Santa Fe Railway Company

Petitioner, as plaintiff, sought damages of respondent, as defendant, for injuries sustained in a railroad crossing collision. The case went to trial before a jury on pleadings by the plaintiff charging that the collision was proximately caused by various negligent acts of the defendants, with additional general allegations charging the defendant with liability under the doctrine of discovered peril. At the conclusion of the evidence the plaintiff waived all grounds of liability and recovery save that of discovered peril; and, having overruled the defendants motion for instructed verdict, the trial judge submitted the case to the jury on issues of discovered peril and certain defensive issues of unavoidable accident and sole proximate cause. In the course of time the jury reported that it was unable to agree on answers to the submitted issues, whereupon the defendant renewed its motion for an instructed verdict or in the alternative that the case be withdrawn from the jury and judgment be rendered for the defendant. The motion was based upon the absence of evidence raising the issue of discovered peril. The motion was granted, the jury was discharged, and judgment was rendered for the defendant. The judgment was affirmed by the Court of Civil Appeals. 246 S.W.2d 233.