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TEXAS & NEW ORLEANS RAILROAD CO. v. EARL DAY (12/05/57)

December 5, 1957

TEXAS & NEW ORLEANS RAILROAD CO., APPELLANT,
v.
EARL DAY, APPELLEE



Author: Mcdonald

McDONALD, Chief Justice.

This is a negligence case for property damage growing out of a train-truck collision at a railroad-street crossing in the City of Corsicana, at about 1:00 o'clock A.M., when the motor truck trailer of plaintiff was struck by defendant's southbound train. Understanding of the facts may be aided by the schematic diagram below:

[]

Plaintiff's truck was headed west on East Collin Avenue. The accident occurred at night at 1:00 o'clock in the morning. At the site of the collision, eight sets of railroad tracks run diagonal to and across E. Collin Avenue. The distance from the first track to the eighth and last track is approximately 185 feet. Plaintiff's truck was struck by defendant Railroad on the fourth track (counting from the direction in which plaintiff was traveling).

Plaintiff sued defendant for damages to his truck. Trial was to a jury, which, in answer to special issues, found among other things:

1 and 2) Defendant's employees operating the train failed to keep a proper lookout, and such was a proximate cause of the collision.

3, 4 and 5) Defendant's train was running 25 miles per hour just prior to the collision; which was negligence; and a proximate cause of the collision.

16) Plaintiff's driver did not fail to keep a proper lookout for trains while he was approaching the track where the collision occurred.

18) Defendant's train was not plainly visible before plaintiff's truck reached a point 15 feet from the nearest rail of such railroad track at the point in question.

(The Trial Court gave the following instruction in connection with the foregoing issue:

"An object is plainly visible when a reasonably prudent person, situated as was plaintiff's driver and exercising ordinary care for his own safety, should have seen it.")

20) Defendant's train was not in hazardous proximity to the crossing before plaintiff's truck reached a point 15 feet from the nearest rail of such railroad track.

(The Trial Court gave the following instruction in connection with the foregoing issue:

"By the term 'in hazardous proximity', is meant such proximity that under all the surrounding facts and circumstances in evidence, the speed and nearness of the train was such that a reasonably prudent person situated as was plaintiff's driver, would have known that an attempt to proceed over the crossing ahead of the train was hazardous.")

21) Plaintiff's driver stopped within 50 feet but not less than 15 feet from the nearest rail of such railroad track.

22) After so stopping plaintiff's driver did not proceed when he could not do so with safety.

Upon the special issue verdict of the jury convicting defendant of negligence, and acquitting plaintiff's driver of contributory negligence, the Trial Court rendered judgment for plaintiff for damages to his truck.

Defendant's motion for new trial was overruled and defendant appeals on 17 points, and which present five basic contentions:

1. (Point 1) The evidence is insufficient to show negligence on the part of defendant's operatives. The evidence conclusively shows negligence on the part of defendant's driver.

2. (Point 2) The evidence conclusively shows that the collision was proximately due to negligence of defendant's driver, a) in failing to keep a proper lookout for trains, b) in failing to stop within 50-15 feet from the nearest rail of the track upon which defendant's train was traveling, c) in proceeding upon such track when he could not do so with safety.

3. (Point 3) The jury verdict is against the great weight and preponderance of the evidence.

4. (Points 4 through 15) Complain of the Trial Court's action in refusing to submit issues requested by defendant.

5. (Points 16 and 17) Complain of the Trial Court's action in admitting into evidence the Corsicana city ordinance making it unlawful for a train to travel more than 20 miles per hour; and the Trial Court's admission into evidence of a certified copy of a record of the Texas State Railroad Commission.

Reverting to defendant's 1st and 2nd contentions -- The jury convicted defendant of negligence in failing to keep a proper lookout, and in traveling 25 miles per hour. The jury further found that such constituted a proximate cause of the collision. We think that such issues were raised, and that such findings are amply supported in the evidence.

Defendant's further contention herein is that plaintiff's driver was guilty of contributory negligence as a matter of law, in failing to keep a proper lookout for trains, and in failing to stop 50-15 feet from the nearest rail of the track upon which defendant's train was traveling, and in proceeding upon such track when he could not do so with safety. Defendant further contends that the evidence conclusively shows that the plaintiff's driver was guilty of such conduct; that such was negligence; and a proximate cause of the collision as a matter of law; and that defendant should have been granted an instructed verdict or a judgment non obstante veredicto by the Trial Court.

Defendant cites Vernon's Ann.Civ.St. Article 6701d, § 86, and contends that since plaintiff's driver did not stop at the track upon which its train was traveling, that plaintiff is guilty of contributory negligence as a matter of law.

There were eight tracks in the space of some 185 feet. The second track was some 50 feet from the first; the third some 25 feet from the second; the fourth some 18 feet from the third. Plaintiff's truck was 45 feet long. Plaintiff's driver stopped at the first track on the grade crossing, and looked both ways. No train was coming and he proceeded.

A review of what duties Article 6701d, § 86, imposes is deemed appropriate at this point.

Our Supreme Court, in Missouri-Kansas-Texas Ry. Co. v. McFerrin, Tex., 291 S.W.2d 931, 935, in its analysis of Article 6701d, § 86, points out that the duty of a motorist to stop 50-15 feet of a railroad track is not absolute, but is conditional, as is the duty of the motorist, having stopped, not to proceed until such can be done with safety.

"Neither duty comes into existence unless and until these three conditions exist: (1) A train must be 'approaching' the crossing; (2) the approaching train must be 'plainly visible', and (3) The train must be 'in hazardous proximity' to the crossing. Before either duty can be said to have been absolute in a particular case so as to form the basis of an instructed verdict all three conditions must be conclusively established by the evidence.

"We are next confronted with the problem of deciding what test is to be used in determining whether, in a given case, an approaching train was 'plainly visible' and 'in hazardous proximity' to a crossing so as to give rise to the statutory duty to stop.

"* * * In determining whether or not the defendant's train was plainly visible, however, you must determine whether it was plainly visible to a person exercising reasonable care under all the facts and circumstances, as shown by the evidence * * *.

"* * * We see no sound reason to be dissuaded from applying the common-law test of the reasonably prudent man in determining whether, under the statute, a train was 'plainly visible' and in 'hazardous proximity' to a crossing."

Back to the case at bar, plaintiff's driver was, by virtue of the statute, under a conditional duty to stop 50-15 feet before the track upon which the train was approaching; such condition precedent to the duty to stop being that a train was plainly visible and in hazardous proximity to the crossing. The McFerrin case, supra, says that in determining whether or not the defendant's train was plainly visible, etc., you must determine whether it was plainly visible to a person exercising reasonable care under all the facts and circumstances as shown by the evidence -- and "we see no sound reason to be dissuaded from applying the common-law test of the reasonably prudent man in determining, whether, under the statute, a train was 'plainly visible' and 'in hazardous proximity' to a crossing."

Since the common law test is applicable under the McFerrin case, we cannot convict plaintiff's driver of contributory negligence as a matter of law if there are any issuable facts to go to the jury -- or if there is any evidence sustaining the jury's acquittal of plaintiff's driver of contributory negligence. The jury acquitted plaintiff's driver of contributory negligence in each matter inquired about by the Trial Court.

We come now to examine the record before us to see if there is any evidence to support the findings of the jury acquitting plaintiff's driver of contributory negligence -- or any evidence which could make for issuable facts as to whether he was negligent.

Plaintiff's driver stopped prior to approaching the first set of tracks, and looked to his right and left and saw nothing; and then proceeded at about seven to ten miles per hour across the tracks; he heard the sound of a diesel engine from his left; he saw a caboose on a freight train lighted up on his left. He was afraid that the freight train upon which he saw the lighted caboose might back over him so he watched the caboose and did not look to his right again until just prior to the time the train struck him; he saw the train, but at a time when it was too late to stop before crossing the track and too late to back off the track the train was approaching on from the right. The question is whether plaintiff, in watching the caboose to his left, and not looking to the right more often than he did, "failed as a matter of law" to keep a proper lookout. The test is what a reasonably prudent man would have done under the circumstances. The McFerrin case, supra, says: "In determining whether or not the Defendant's train was plainly visible (thereby requiring plaintiff to stop), however, you must determine whether it was plainly visible to a person exercising reasonable care under all the facts and circumstances."

Certainly plaintiff should have kept an eye on the caboose since he recognized it as a danger and a hazard. 35 T.J., Sec. 348, says:

"Where the conditions at the crossing were such that some difficulties were presented to the traveler, who was consequently required in the exercise of ordinary care in some degree to divide his attention between such difficulties and the more serious and imminent risk that a train may be approaching, it is for the jury to say whether he acted with due caution. The verdict will not be set aside merely because it appears that if he had looked at the proper moment in approaching the crossing he would have seen that the train which ran him down was approaching -- assuming, ...


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