Billingsley v. Southern Pac. Co., 164

• Decision Date: 10 March 1966
• Docket Number: No. 164,164
• Citation: 400 S.W.2d 789
• Parties: Byron BILLINGSLEY, Appellant, v. SOUTHERN PACIFIC COMPANY, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 789

400 S.W.2d 789

Byron BILLINGSLEY, Appellant, v. SOUTHERN PACIFIC COMPANY, Appellee.

No. 164.

Court of Civil Appeals of Texas.

Tyler.

March 10, 1966.

Rehearing Denied March 31, 1966.

Robert Fairchild, Fairchild & Hunt, Center, for appellant.

Wardlow W. Lane and Joe Davis Foster, Center, Baker, Botts, Shepherd & Coates, McGregor, Sewell, Junell & Riggs, Houston, for appellee.

DUNAGAN, Chief Justice.

This suit was instituted in the District Court of Shelby County, Texas, by appellant, Byron Billingsley, against the appellee, Southern Pacific Company, seeking damages for bodily injury sustained when a vehicle operated by appellant was allegedly struck by appellee's train at a rural crossing in Shelby County on the night of October 31, 1963. Actionable negligence in numerous respects, including the maintenance of an extra-hazardous crossing, was alleged against the railroad. Appellee alleged defensively numerous acts of contributory negligence, including excessive speed, on the part of appellant. The jury, in answer to twenty-eight Special Issues, found that the operators of appellee's train did not fail to ring the train's bell continuously beginning at a point 1,320 feet from the crossing until it reached the crossing; that they did not fail to blow the whistle beginning at a distance of 1,320 feet from the crossing and continuing until it reached the crossing; and that they did not fail to blow the whistle after appellant's vehicle became plainly visible to them. In answer to Special Issues Nos. 3, 4 and 5, however, the jury found that the crossing in question was extra hazardous; that appellee's failure to maintain a mechanical warning device thereat was negligence; and that such negligence constituted a proximate cause of the collision. No other act of primary negligence was found against appellee.

In answer to the Issues submitted relating to the conduct of appellant, (Special Issues Nos. 16 through 26) the jury absolved him of alleged negligence in failing to make a timely application of brakes on his automobile; in failing to exercise ordinary care to listen for an approaching train; and in operating his vehicle with defective brakes. The jury found that appellant failed to keep a proper lookout for the approaching train, but that such failure was not a proximate cause of the collision. The jury further found, however, that as appellant approached the crossing he was operating his automobile at an excessive rate of speed (Special Issue No. 20) ¹ and that such conduct constituted a proximate cause of the collision (Special Issue No. 21). ² The jury found that the accident was not unavoidable and awarded damages to appellant. He moved the trial court to disregard the jury's findings to Special Issues Nos. 20 and 21 because there was no evidence, or an insufficiency of evidence, to support them. The motion was overruled and judgment entered on the verdict for appellee. Appellant's motion for new trial having likewise been overruled, this appeal has been perfected.

The first nine Assignments of Error, as grouped by appellant for discussion, relate to the jury's findings in answer to Special Issues Nos. 20 and 21 that, as appellant approached said crossing on the occasion in question, he was operating his automobile at an excessive rate of speed. By appropriate Assignments, appellant claims that (a) there is no evidence of probative force to support such findings; (b) the evidence is insufficient to support them; and (c) the findings are against the great weight and preponderance of the evidence.

Under the well settled rule for appellate determination of such Assignments, we are required to dispose of the 'no evidence' points before passing upon the questions of 'insufficiency of evidence.' In determining the former, it is our duty to consider only the evidence and the inferences favorable to the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, Tex., 395 S.W.2d 821 (S.Ct.) 1965; Hartford Accident & Indemnity Company v . Gant, 346 S.W.2d 359 (Tex.Civ.App.) 1961, no writ; Higginbotham v. O'Keeffe, 340 S.W.2d 350 (Tex.Civ.App.) 1960, ref. n.r.e.; and Gregory v. Tyler Grain And Storage Company, 341 S.W.2d 221 (Tex.Civ.App.) 1960, no writ; Calvert 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Texas Law Review 361. If we conclude there is evidence of probative force supporting the findings, it thereupon becomes our duty to determine the 'insufficiency of evidence' Assignments. In making such a determination, we must consider and weigh all of the evidence in the case to determine whether there is a sufficiency of evidence to support the findings or whether they are so against the great weight and preponderance of the evidence as to be clearly erroneous. In re: King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). It becomes necessary, therefore, to review in some detail the evidence relating to appellant's speed in order to determine the questions presented.

On October 31, 1963, appellant, a mechanic, left his home in Timpson, Texas, and was en route to repair a truck which he understood was disabled between the Silas and Stockman Communities in Shelby County. He was traveling upon Farm-to-Market Road No. 2667 approximately four miles south of Timpson and was approaching appellee's railroad crossing with which he was familiar. The roadway for some distance before reaching the railroad crossing runs somewhat parallel to the tracks and, considering the direction appellant was traveling, curves to the left and crosses the tracks at approximately a 45 degree angle, and then curves back to the right after crossing the tracks. The road at the crossing where the accident occurred is level, two-lane and black topped. Appellant was alone in his Lincoln convertible and he testified that as he approached the crossing, he was driving 'about 60 miles per hour,' but reduced his speed to an estimated 45 to 50 miles per hour shortly before he reached it.

He testified the weather was cloudy and hazy and the windows of his automobile were up. There was a brush thicket between him and the railroad crossing. This crossing was located about three and one-half to four miles from appellant's shop and he testified in detail with reference to its approaches and the conditions surrounding the same. He stated that the 'posted speed limit' was probably 55 miles per hour and that he was traveling about 60 miles per hour until he reached the curve leading onto the crossing. He did not know the exact speed of his vhicle at the time he first applied his brakes.

Appellant produced witness R. H. Vinyard, a Texas Highway Patrolman, who testified that during his thirty years' service with the Department of Public Safety, he had investigated numerous collisions throughout the state. He had attended a fourteen week school in Austin, conducted by the Department, where he received training in the investigation of traffic accidents. Appellant's counsel qualified the witness as an expert accident investigator. He testified that he was called to investigate the accident involved here and arrived at the scene about 10:30 a.m. the morning following the accident. He made a personal investigation of the physical facts thereat, including the location of the debris, as well as the measurement of skid marks leading up to the crossing, and found thirty-five steps of skid marks up to a point about eighteen inches beyond the first rail of the crossing. He established the point of contact between the automobile and the train. Upon measuring the distance from the automobile to the crossing he found it to be 350 feet. There were no breaks in the skid marks. After appellant's counsel had qualified this witness as to his ability to determine speeds of vehicles from skid marks, the witness testified that a vehicle going 60 miles per hour would require 270 feet within which to stop. He further testified that a motorist approaching this crossing would be 150 feet from the crossing before he could determine whether a train was approaching. Numerous exhibits of the damage resulting to appellant's automobile were introduced into evidence by appellant and this witness testified also as to the physical damage to the automobile.

On cross-examination appellee's counsel elicited from Vinyard that at the time of his investigation he estimated the speed of appellant's vehicle at 70 miles per hour prior to application of brakes. He also estimated, without objection, that a 'safe speed' at that particular location under the existing conditions was 35 miles per hour.

Appellee produced as a witness Dr. Wm. H. Tonn, Jr., a consulting Engineer who, since 1948, has been engaged in accident-analysis work . Dr. Tonn had made a study of the automobile involved in the collision. He had also made photographs of the vehicle and testified in great detail that he examined exhibits showing the skid marks at the scene of the accident and had determined that the speed of appellant's vehicle when the brakes were first applied was within the range from 56 miles per hour to a speed 'in excess of' 65 miles per hour. Dr. Tonn based his opinion upon his observations at the scene of the accident, an examination of the damage to the vehicle, the appellee's photographic exhibits, measurements, mathematical calculations and testimony in the record.

Applying the rules hereinabove set forth, there is no difficulty in determining that there was considerable evidence of probative force to support the jury's findings in answer to Special Issues Nos . 20 and 21.

It is well settled in this state that experts may give their opinions as to rates of speed from facts detailed to them. Stamper v. Scholtz, 29 S.W.2d 883 (Tex.Civ.App.) 1930, err. ref.; and Zepeda v. Moore, 153 S.W.2d 212 (Tex.Civ.App.) 1941, err. dism. Under the circumstances shown in the record, the witnesses were qualified to express their opinions as to the speed of appellant's...