Blades v. Christy, No. 7878

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: DENTON
• Citation: 437 S.W.2d 376
• Docket Number: No. 7878
• Decision Date: 06 January 1969
• Parties: Thomas H. BLADES et al., Appellants, v. T. F. CHRISTY et al., Appellees. . Amarillo

Page 376

437 S.W.2d 376 Thomas H. BLADES et al., Appellants,
v.
T. F. CHRISTY et al., Appellees. No. 7878. Court of Civil Appeals of Texas.
Amarillo. Jan. 6, 1969.
Rehearing Denied Feb. 3, 1969.

Kolander & Templeton, Amarillo, Robert L. Templeton, Amarillo, of counsel, for appellants.

Culton, Morgan, Britain & White, Amarillo, L. A. White, Amarillo, of counsel, for appellees.

DENTON, Chief Justice.

Our former opinion is withdrawn and the following opinion is submitted in lieu thereof.

This suit, by Thomas H. Blades and Pinkney Packing Company, seeks recovery against T. F. Christy and Fort Worth & Denver Railway Company for injuries and property damages arising out of an automobile-train collision in a crossing accident. From a jury verdict on special issues, both parties moved for a judgment. The trial court rendered judgment for the defendants below and the plaintiffs have perfected this appeal.

The collision occurred at the intersection of Browning Street and a Fort Worth & Denver track in the city of Amarillo, on August 3, 1966, shortly after 1:30 p.m. A plat in the record shows Browning Street runs north and south and intersects with a series of six railroad tracks, some owned by appellee Fort Worth & Denver and others by Santa Fe Railway Company, in an industrial section of Amarillo. Blades, a truck driver for Pinkney, had just loaded the large truck and trailer at the packing company plant which was located just north of the first track. He stopped at the company office to 'log out' before proceeding to El Paso with his load of meat. At that point the truck was not less than 15 feet nor more than 50 feet from the first track. The truck and trailer were 52 feet in overall length and weighed 65,000 pounds loaded. The series of six tracks as they appeared from the north to the south are located as follows: The first track was the Santa Fe main line; the second is a Santa Fe switch track 8.6 feet to the south; 50.5 feet farther south is the Fort Worth & Denver main line; the fourth track was a Fort Worth & Denver spur track, designated 'oil spur' 58 feet to the south of the third track; the fifth set of tracks was another Fort Worth & Denver spur track, called 'wye' track, 37.8 feet south of the 'oil spur'; and the sixth and last set of tracks was approximately 15 feet south of the 'wye' track. The collision in question occurred on the wye track or the fifth set of tracks traveling from north to south, the route Blades traveled prior to the collision. There were no signal devices at any of the track crossings.

At the time of the collision, seven box cars were spotted on the 'oil spur' by appellee with the closest car approximately 12 to 15 feet west of Browning Street. These box cars were to Blades' right as he traveled south. The switch engine, pulling thirteen freight cars, approaching from the west on the 'wye' track, was to Blades' right. It is conceded that both the truck and train approached this intersection at

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slow speeds. The train was moving at an estimated speed of approximately 5 m.p.h. and the truck's speed was estimated at 7--8 m.p.h. as it approached the 'wye' track.

In response to the special issues submitted, the jury found: (1a) The box cars located on the 'oil spur' track obscured the vision of motorists approaching from the north and the train approaching from the west on the 'wye' track; (1b) that the leaving of the box cars at this location was negligence; and (1c) a proximate cause of the collision; (2) that the condition of the crossing in question was such as to make it extra-hazardous for traveling from the north when a train was approaching from the west on the 'wye' track; (3a) the failure of the defendant to have a flagman at the crossing in question was negligence; (3b) such negligence was a proximate cause of the collision; (4a) the failure of the defendant to have an automatic signal device was not negligence; (5a) the defendant did not fail to sound its engine's horn or whistle; (6a) that the defendant did not fail to sound the engine bell; (7a) that Blades was in a position of peril immediately prior to the collision; (7b) that the engineer of the train discovered blades in such position; (7c) that the engineer realized that Blades could or would probably not be able to extricate himself from such position of peril; (7d) that the engineer did not discover Blades' position of peril in time to avoid the collision; (8a) that Blades did not fail to listen for any train as he approached; (9a) that Blades did not fail to keep a proper lookout; (10a) that the train was plainly visible before appellants' truck reached a point 15 feet from the nearest rail of the track; (10b) that the train was in a hazardous proximity to the crossing before the truck reached a point 15 feet from the nearest rail of the track; (10c) that the failure of Blades to stop the truck within 50 feet but not less than 15 feet from the nearest rail of the track was a proximate cause of the collision; and (11a) that Blades did not see the engine in time to avoid the accident by applying his brakes. Other issues exonerated Blades and Brice, a passenger in the truck, from other acts of negligence. Damages for personal injuries to Blades and property damages to the truck were awarded.

One of the appellees' defenses to the suit was based on the alleged violation by appellants' truck driver of the duty imposed by Section 86(d) of Article 6701d, Vernon's Ann.Civ.St., which reads:

'Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:'

'(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.'

This defense was submitted by Special Issues Number 10a, 10b and 10c. In response to these issues, the jury found the train was plainly visible before the truck reached a point...