Bollinger v. Missouri-Kansas-Texas R. Co. of Tex.

• Decision Date: 01 December 1955
• Docket Number: No. 3318,MISSOURI-KANSAS-TEXAS,3318
• Citation: 285 S.W.2d 300
• Parties: E. F. BOLLINGER, Appellant, v.RAILROAD COMPANY OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 300

285 S.W.2d 300

E. F. BOLLINGER, Appellant, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS, Appellee.

No. 3318.

Court of Civil Appeals of Texas, Waco.

Dec. 1, 1955.

Rehearing Denied Dec. 22, 1955.

Rogers & Rogers, Sherman, for appellant.

Freels, Elliott & Nall, Sherman, G. H. Penland, Dallas, for appellee.

TIREY, Justice.

This is a collision case. Appellant, the driver of a truck, grounded his action upon the negligence of appellee in the operation of its railroad train and in the maintenance of the crossing, and alleged that such negligent conduct proximately caused the collision and damages to him. The court overruled defendant's motion for instructed verdict and the jury in its verdict found substantially: (1, 2 and 3) that the conditions surrounding the railroad crossing were such as to make the same an extraordinarily hazardous crossing at the time appellant attempted to cross the track, and that the failure of the railroad to maintain a flagman at said crossing at the time was negligence, and that such negligence was a proximate cause of the collision; (4 and 5) that the failure of the railroad to maintain signal lights to warn the traveling public of the approach of trains at the crossing at the time was negligence, and that such negligence was a proximate cause of the collision; (6, 7, 8 and 9) that on the occasion in question and immediately before the collision Bollinger and his truck were in a perilous position, and that immediately before the collision in question Hodge actually discovered and realized that Bollinger and the truck were in a perilous position and that Hodge, after discovering the perilous position of Bollinger and the truck, realized that Bollinger could not or would not, in all probability, extricate or remove himself and the truck from such perilous position in time to avoid the collision, but that Hodge did not actually discover the perilous position of Bollinger and the truck within such time and distance that by the exercise of ordinary care and the use of all the means at his command, consistent with safety to himself and the other operators of the train, he could not have avoided the collision; (12, 13 and 14) that the operators of the train failed to sound a timely warning as they approached the intersection, and that such failure was negligence, and that such negligence was a proximate cause of the collision; (15, 16 and 17) that the operators of the train failed to apply the brakes on said engine and train in time to have avoided the collision with the truck plaintiff was driving, and that such failure was negligence, and that such negligence was a proximate cause of the collision; (18, 19 and 20) that the operators of the train failed to slow the train's speed before entering said intersection, and that such negligence was negligence, and that such negligence was a proximate cause of the collision; (21, 22 and 23) that the operators of the train failed to bring said engine to a stop before crossing said highway, and that such failure was negligence, and that such negligence was a proximate cause of the collision; (24 and 25) that the operators of the train failed to keep a proper lookout, and that such failure was a proximate cause of the collision; (26) the jury further found that it was not an unavoidable accident; (27) that Bollinger did not fail to keep a proper lookout for the approach of trains; (29) that Bollinger did not fail to heed the whistle warning of said engine; (32) that Bollinger did not fail to apprize himself of the presence of defendant's engine on the track approaching the crossing; (35) that Bollinger, as he approached the railroad crossing, was not propelling his automobile truck at a speed in excess of 30 miles per hour; (37) that Bollinger did not drive and operate his truck at a speed in excess of that within which he could have brought it to a complete stop within 50 feet and not less than 15 feet from the nearest or north rail of said crossing; (40) that Bollinger was not then and there operating and driving his truck with defective brakes; (43) that the Bollinger truck, at the time and place, while being operated, was equipped with foot brakes, then and there capable, by the use and proper application, of stopping said truck within 45 feet when traveling at a speed of 30 miles per hour on a dry, smooth, level road, free from loose material; (45) that Bollinger did not fail to properly apply his brakes as he approached said crossing; (48) that Bollinger failed to timely apply his brakes as he approached the crossing; (49) but that such failure was not negligence; (51 and 52) that Bollinger failed to timely bring his truck to a stop as he approached said crossing, but found that such failure was not negligence; (54) that the failure of Bollinger to bring his truck to a stop within 50 feet and not less than 15 feet from the nearest or north rail of the crossing was not a proximate cause of the collision; (55) that Bollinger did not fail to keep his truck under proper control at the time; (57) that on the occasion in question and immediately before the collision the train and operators were in a perilous position; (58, 59 and 60) that immediately before the cllision Bollinger actually discovered and realized that the train and operators were in a perilous position, and that Bollinger, after discovering the perilous position of the train and operators, realized that the train and operators could not or would not, in all probability, extricate or remove themselves and the train from such perilous position in time to avoid the collision, but that Bollinger did not actually discover the perilous position of the train and operators within such time and distance, that by the exercise of ordinary care and the use of all the means at his command, consistent with safety to himself and to his truck, he could have avoided the collision; (63) that the operators of the train at the time and place were not acting under an emergency; (65 and 66) that $17,000 would reasonably and fairly compensate Bollinger for his injuries; that the reasonable cash market value of the truck immediately before the accident was $1,000 and immediately after $100. The court overruled plaintiff's motion for judgment on the verdict and granted defendant's motion for judgment non obstante veredicto, and decreed that plaintiff take nothing by his suit and that defendant go hence without day with his costs. The plaintiff timely excepted to the judgment of the court and gave notice of appeal and the cause is here on transfer order of our Supreme Court.

The judgment is assailed on two points: (1) the error of the court in overruling plaintiff's motion for judgment because Sec 86 of Art. 6701d, Vernon's Ann.Civ.Stats., as amended, does not bar plaintiff from recovery; and (2) because the evidence was sufficient to support the jury's verdict.

Appellee's counter points are substantially to the effect that (1) the court did not err in overruling plaintiff's motion for judgment and sustaining defendant's motion for judgment non obstante veredicto, because subsections (c) and (d) of Sec. 86 of Art. 6701d, Vernon's Ann.Civ.Stats., and Sec. 132, subd, 6(b) of said Article, as amended, bar plaintiff from recovery, and (2) that the court did not err in overruling plaintiff's motion for judgment and sustaining defendant's motion for judgment non obstante verdicto, because neither the pleadings not the evidence nor the jury's findings were sufficient to support a judgment against appellee.

A comprehensive statement is necessary. Testimony was tendered to the effect that this collision occurred when a truck driven by plaintiff struck the side of one of defendant's engines just behind the center at a point where South Union Street in the corporate limits of Whitesboro crosses the tracks of the defendant in the south edge of town. Union Street is a paved street running south from the main street to the city limits. It is 2,112 feet from the center of main street to the point where the railroad crosses it; such street is 36 feet wide from curb to curb; the paved portion being 18 feet wide at the crossing, and for a distance of 85 feet back towards Main Street, the paved portion is 36 feet wide and occupies all of the space between the curbs. As South Union Street runs from Main Street South to the crossing, it is downgrade two-thirds of the way, or approximately 1,400 feet; then the last 700 feet before you reach the crossing is flat. The collision occurred about 5:30 A.M., and at the time of the collision the weather was clear and dry and plaintiff described it as a 'perfect morning.' The road surface was clear, dry and free of loose material. Plaintiff was enroute from McAlester, Oklahoma, via Whitesboro and Denton, Texas, to Fort Worth; he had traveled this route before and was familiar with the location of the railroad crossing. Plaintiff testified in part:

'Q. Now you knew, Mr. Bollinger, that that railroad crossing was there, where it was located. You expected-A. I expected to cross the railroad down that side of town.

'Q. Yes, sir. You had been over that road before and you were familiar with the location of the crossing? A. I knew it was down in the south end of town, down that street.

'Q. And you knew, did you not, as you approached that railroad crossing that morning, that you might expect to find trains either approaching or using that crossing as you came on it. A. I thought there would be a chance. * * *

'A. I knew there was more than one track, and then i knew there was one on down there.

'Q. And that it was down there on the edge of the populated section of Whitesboro, did you not? A. You mean the first track?

'Q. Yes, sir. A. Yes, sir.

'Q. And you knew to expect traffic on that railroad track as you drove down the highway? A. Yes, sir.

'Q. And you knew a railroad track could and did represent a place of danger? A. That's right.

'Q. And you knew that you should...