Atchison, Topeka & Santa Fe Ry. Co. v. Holloway

• Decision Date: 24 February 1972
• Docket Number: No. 7296,7296
• Citation: 479 S.W.2d 700
• Parties: The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Appellants, v. Annie Nell HOLLOWAY et al., Appellees.
• Court: Texas Court of Appeals

Page 700

479 S.W.2d 700

The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Appellants, v. Annie Nell HOLLOWAY et al., Appellees.

No. 7296.

Court of Civil Appeals of Texas Beaumont.

Feb. 24, 1972.

Rehearing Denied April 13, 1972.

O'Brien & Richards, Beaumont, for appellant.

Seale & Stover, Jasper, for appellee.

KEITH, Justice.

The railroad and its locomotive engineer appeal from an adverse judgment based upon a jury verdict. Plaintiff's decedent was operating a pulpwood truck south upon State Highway 87 near Bleakwood in Newton County when his vehicle was in a collision with an eastbound Santa Fe train. The truck struck the left front footsteps on the lead engine, derailing both diesel units, killing Holloway instantly. In this suit brought by his widow and children, the jury found that the crossing was extrahazardous and that the railroad failed to take extraordinary precautions to warn travelers of approaching trains. However, the jury convicted Holloway of numerous acts of contributory negligence rpoximately causing the accident, including the violation of Art. 6701d, § 86, Vernon's Ann.Civ.St. Liability of the defendants was based solely upon adverse findings upon the issues of discovered peril. We will refer to the parties as they appeared in the trial court.

Defendants attack the finding of the discovered peril issues with points raising the question of no evidence, insufficient evidence, and that the findings are against the great weight and preponderance of the evidence. As to the 'no evidence' points, we will review the evidence and the inferences therefrom in the light most favorable to plaintiffs and in support of the jury's answers. Gentry v. Southern Pacific Company, 457 S.W.2d 889, 890 (Tex.Sup.1970). In considering the latter two points, we consider the record as a whole.

The railroad locomotive was equipped with a speed tape which indicated that the train was moving at the rate of 20.5 miles per hour which was compatible with the estimates of speed given by each of the trainmen. The speed of the truck is not so firmly fixed in the record. An outside witness employed by the telephone company placed the truck's speed at between forty and fifty miles per hour, while the members of the train crew testified that the speed was between forty and fifty-five miles per hour.

The train consisted of two diesel electric locomotives in tandem, each nearly fifty-six feet in length, pulling twenty-six rail cars of which five were loaded. The position of the engineer in the cab, being on the right side thereof, made it impossible for him to see the approaching truck. The train brakeman was riding upon the fireman's box on the left side of the lead locomotive and the conductor was seated to his rear upon the same side. Both testified that they saw the approaching truck before the collision and it is their testimony upon which both parties rely.

We first consider the testimony from the train crew which the plaintiffs contend supports the jury findings on discovered peril. This testimony was from pre-trial deposition evidence read into the record by plaintiffs' counsel. Train Conductor Johnson said that he was seated behind Brakeman Rhymes upon the left side of the locomotive cab when he saw the truck approaching the crossing from the north. He said that he first saw it when it was 'approximately 200 or 300 feet' back from or north of the crossing. The front of the locomotive was then 'about 150 feet, about three car lengths' to the west of the crossing. Holloway's perilous position and impossibility of extrication therefrom came from Johnson in this manner:

'Question: From the first time you saw him, it appeared to you that he was not going to stop?

'Answer: That's right.

'Question: And so if he didn't stop, you knew this was going to be a wreck?

'Answer: That's right.'

Brakeman Rhymes testified that Conductor Johnson did not give any warning of the approach of the truck and said only, 'All clear on my side.' Rhymes estimated that the train, at its speed of twenty miles per hour, could be stopped in three car lengths. Engineer Wallace could not see the approaching truck and made no effort to stop his train until he was fifty to seventy-five feet from the crossing when he applied his emergency brakes. He 'big holed' the engine (applied the emergency brakes) because Rhymes 'come up on his feet and said, 'He is not going to stop.' And I put it in emergency then.' Johnson 'didn't say anything.' The engineer said that after setting his brakes his train 'was slowing down' and that the brakes were taking effect 'some' before the accident. The engineer was of the opinion that the train, going at a speed of twenty miles per hour, could be stopped in 'roughly' 175 feet.

Plaintiffs tendered a retired locomotive engineer, who had formerly worked for the Southern Pacific Railroad, as an expert witness. He said that he was familiar with the type of equipment involved in the wreck and had operated similar equipment. In his opinion, the train could have been stopped within two engine lengths at a speed of twenty-one miles per hour--about 112 feet. He was permitted to answer a hypothetical question and said that If Conductor Johnson had notified the engineer of the approaching truck when the engine was 150 feet from the crossing, and If Engineer Wallace had immediately applied the brakes, the collision could have been avoided.

In reviewing the no evidence points, the rule governing our action is that set out in Gentry v. Southern Pacific, supra:

'The quantum of proof required to entitle plaintiff to have the discovered peril issues submitted is evidence of such facts and circumstances, together with all reasonable inferences therefrom as would constitute some evidence of probative force of their existence .' (457 S.W.2d at p. 892)

We have set out the testimony which plaintiffs urge upon us as supporting the findings on discovered peril; and, having done so, we now turn to the remarks of Chief Justice Calvert in Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.Sup.1970): 'In this case, as often happens, the question of whether there is more than a scintilla of evidence to support the finding of a vital fact is close.'

However, considering only such evidence and indulging all reasonable inferences therefrom, we are of the opinion that it does rise to the level of 'some evidence of probative force' tending to establish the vital facts upon which plaintiffs rely for recovery. Defendants' point three is overruled. See Calvert, "No Evidence' and 'Insufficient Evidence' Points of Error,' 38 Texas Law Rev. 361 (1960).

When we consider the record as a whole, however, we come to an opposite conclusion. In passing upon defendants' points four, five and six, we consider the evidence of probative force tending to prove the existence of a vital fact and the evidence tending to disprove its existence. Calvert, supra (38 Texas Law Rev. at p. 367).

Here, as in most cases involving the doctrine of discovered peril, the vital issue narrows down to the element of time; and, as is so often the case, the critical period is hedged with fuzzy approximations of speed, distance, reaction time, braking time, etc. Nevertheless, we now add to the synopsis of the record so as to present the complete picture of the circumstances leading up to this tragedy.

Brakeman Rhymes testified that the train was 'pretty close to the crossing' when he first said, 'Here comes one.' He said: 'I have to say it couldn't have been more than a hundred feet back . . . It couldn't have been no more than a hundred feet back, because that would give me that view from them little trees to see this truck, and I would say it was about a hundred feet . . . you had to get close to this crossing to see it.' He estimated the engine to be about two car lengths back from the crossing when he first saw the truck.

Conductor Johnson further testified that when he first saw the truck (at a time when it was about 300 feet from the crossing and the front of the engine 150 feet to the west thereof) he 'talked to the engineer . . . and told him it didn't look like he was going to stop, and the other fellow (Brakeman Rhymes) in front of me said he is not going to stop, so he big holed it.' It was 'just a matter of a second or two' for the sequence of events to occur.

Engineer Wallace said that while the conductor 'didn't say anything, . . . He come out of his seat' about the same time Rhymes did. Wallace testified that Johnson 'could have been hollering too, I don't know. I heard the head brakeman.' He said that the truck 'climbed up over the front end (of the engine) and fell down over the drawbar.' It would up on the right side of the engine, about a hundred feet east of the crossing. Wallace said that he 'came very close to being hurt in that accident . . . it threw me down in the floor' when the engine derailed.

Brakeman Rhymes said that the engine had to get close to the crossing for him to see the road because of some 'little trees' obscuring his vision. Having told the engineer, 'He ain't going to stop,' Rhymes said that he did not 'let the grass grow under my feet, and the moment I said that, I was moving.' He broke open the door upon the engineer's side of the cab, vaulted a safety railing on the side of the engine, and jumped to the ground on the right side of the engine 'no more than three feet from the crossing.'

Santa Fe produced its expert upon the braking system of the train and he qualified from experience operating such equipment as well as formal studies. He was given the weight of the two engines (249,000 pounds each) and of the train (a total of 1150 tons) and testified that at twenty miles per hour, it would take 510 feet to stop the train. He took into account, in addition, a reaction time on the part of the engineer of three-fourths of a second, during which time the train would have traveled twenty feet. He said that it then...