Castilleja v. Southern Pacific Company

• Citation: 406 F.2d 669
• Decision Date: 13 February 1969
• Docket Number: No. 25586.,25586.
• Parties: Elena CASTILLEJA and minor children, Appellants, v. SOUTHERN PACIFIC COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

406 F.2d 669 (1969)

Elena CASTILLEJA and minor children, Appellants, v. SOUTHERN PACIFIC COMPANY, Appellee.

No. 25586.

United States Court of Appeals Fifth Circuit.

January 23, 1969.

Rehearing Denied February 13, 1969.

Sidney Ravkind, Houston, Tex., Les Mendelsohn, San Antonio, Tex., for appellants.

Harper MacFarlane, Fred C. Meyer, Jr., San Antonio, Tex., for appellee.

Before GOLDBERG and CLAYTON,^* Circuit Judges, and HANNAY, District Judge.

GOLDBERG, Circuit Judge:

This is an appeal from a judgment entered upon a general jury verdict in a wrongful death action. The tragedy occurred in Guadalupe County, Texas, when a train of the Southern Pacific Railway struck a truck and killed Ausencio Castilleja, a passenger in the truck. The appellants, Castilleja's widow and minor children, were the unsuccessful plaintiffs in the court below. The primary issue involved in this appeal is whether the district court erred when, in the course of charging the jury on the issue of whether Castilleja was contributorily negligent in failing to keep a lookout for trains, it failed to instruct that under Texas law Castilleja had no duty to act as a lookout in the absence of exceptional circumstances. We find that this omission was fatally fallible and remand for a new trial.

I.

Castilleja and Johnny Ortiz, employees of Economy Furniture Company, were engaged in delivering furniture on the unhappy day. Under the usual division of labor, Ortiz would drive the truck and Castilleja would check the invoices and give general directions as to route. In response to these directions, Ortiz turned left off of the highway at the second gravel road and proceeded down this road in a northerly direction for a "little ways," followed a right turn in the road, and proceeded in an easterly direction for another "little while" to a point where the road makes another 90° turn back to the north. At this turn he encountered men attempting to pull a large winch truck out of the mud. Attached to the rear of the winch truck was a chain which stretched across the road. Ortiz halted short of the chain. When it was lowered, he proceeded to the turn in the road and saw a railroad crossing about fifty or seventy-five feet away.

Ortiz pulled up toward the track, and then stopped about one truck length short of it. He looked to the right and to the left. Seeing nothing and hearing nothing, he attempted to cross the track. The progress of the truck was slowed by the poor condition of the road.

The truck had crossed the first rail and was starting over the second when Castilleja screamed, "Peachy, the train!" These words concurred with the first sound of the train's whistle.¹ Ortiz accelerated, but the truck's wheels spun in the gravel and caliche. The truck arrived at the center of the second rail simultaneously with the lead engine of the train. Demolition occurred on impact. Ortiz survived; Castilleja died.

The trial court, in the course of its general charge to the jury, gave the following instruction:

"Now, you are further instructed that if you find from the preponderance of the evidence that the said Ausencio Castilleja failed to keep such a lookout for trains — now, he\'s the passenger that\'s in there — sitting on the side of the other one — look out for trains when approaching the grade crossing in question as a person of ordinary prudence would have done under the same or similar circumstances, and that such action on the part of Castilleja was negligence, as that term has been defined to you, and that such negligence was the proximate cause of the collision, then you will find for the defendant railroad as against said plaintiffs, Elena Castilleja, and their minor children."

The appellants objected to this charge because it placed an overly onerous lookout responsibility on Castilleja and because it failed to advise the jury that Castilleja was presumed to have exercised care for his own safety. We agree with the appellants on the lookout issue and disagree on self-safety.

II.

Being Erie bound,² we must evaluate the substance of the district court's charge in the light of Texas substantive law. Lind v. Aetna Casualty and Surety Co., 5 Cir., 1967, 374 F.2d 377, 380; see Boothe v. Holmes, 5 Cir. 1968, 399 F.2d 495, 500. Our primogenial case is Edmiston v. Texas & N. O. R. Co., Tex.1940, 135 Tex. 67, 138 S.W.2d 526. There Edmiston sued the railroad, seeking to recover damages for injuries sustained by his wife in a collision between the automobile in which she was riding as a guest and a railroad switch engine. The railroad argued that the failure of the injured spouse to keep a lookout constituted contributory negligence. The facts were summarized by the Court of Civil Appeals as follows:

"The case was submitted to the jury upon 97 special issues. The jury found the issues submitting discovered peril in favor of appellee railroad. It found that the operatives of the engine were negligent in several particulars alleged, and that each such act of negligence was a proximate cause of the collision and of the injuries to Lola Edmiston. The jury also found that Cecil Ramos, the driver of the automobile, was negligent in several particulars, and that each such negligent act was a proximate cause of the collision; but that neither of such negligent acts of Cecil Ramos was the sole proximate cause of the collision. With respect to the alleged acts of contributory negligence of Lola Edmiston, the jury found that the whistle of the switch engine was blown before it reached the crossing in question; that Lola Edmiston could have in the exercise of ordinary care heard the whistle in time to have warned the driver of the automobile of the engine\'s approach, and in time for him to have stopped the automobile before it reached the crossing, but that her failure to do so was not negligence; that the headlights on the rear end of the switch engine in question were burning as it approached the point of collision; that Lola Edmiston by the exercise of ordinary care could have seen the burning headlights as the automobile approached the crossing in time to have warned the driver to stop the automobile before it reached the crossing, but that the failure of Lola Edmiston to see the headlights and warn the driver was not negligence on her part; that Lola Edmiston in the exercise of ordinary care could have seen the defendant\'s switch engine as it approached the crossing in question in time to have warned the driver of the car of that fact, but that her failure to see the engine and to call the attention of the driver of the automobile to the approaching engine was not negligence on her part; that the automobile was being operated at an unlawful rate of speed at the time it approached the crossing; that Lola Edmiston failed to protest to the driver of the automobile of such speed, but that such failure to protest was not negligence; that Lola Edmiston failed to listen, watch, and look out for trains and engines that might be approaching the crossing as the automobile in which she was riding also approached the crossing, but that her failure to listen, watch, and look out for trains and engines was not negligence; and that it was not negligence for her not to have protested to the driver of the automobile to bring the same to a stop immediately prior to the collision." Emphasis added. Edmiston v. Texas & N. O. R. Co., Tex.Civ.App. 1937, 111 S.W.2d 848, 849.

The Court of Civil Appeals agreed with the trial court's apparent finding that as a matter of law the injured spouse was guilty of contributory negligence in failing to keep a lookout as the car approached the crossing. In so holding the court wrote:

"It is the rule in Texas that while the duty of a guest riding in an automobile is not precisely the same as that of the driver of the automobile under all circumstances, still the guest is equally under the duty to look out for his or her own safety as far as possible, and is expected to see obvious danger and to warn the driver of it. That is, because the guest rider has no absolute control over the acts of the driver of any automobile, the negligence of the driver is not in all instances imputable to the guest rider, still, in railroad crossing collisions, the guest rider is required to exercise reasonable care for his or her own safety, and to keep a lookout for an approaching train and to warn the driver of it. In such circumstances it is reasonable to suppose that the driver will heed the warning and do all in his power to avoid the collision. It may therefore be said that in approaching a railroad crossing in an automobile, a guest rider, in not looking out and warning the driver of an approaching train, does not act as an ordinarily prudent person would act under the same or similar circumstances. cases cited.

* * * * *

"It may be observed, however, that Lola Edmiston had been a resident of the city of Austin for several years prior to the time of the collision, and that the Govalle Beer Garden where she was employed was situated so that if she desired to come into the city proper the usual and best route was over East Sixth street. But even if she did not know of the railroad crossing, due care for her own safety under the facts and circumstances above detailed required her to keep a lookout for any train that might come onto or across the street in front of the automobile in which she was riding, and to warn the driver of the automobile of it. Manifestly, she could not excuse herself for failure to discover the approaching engine and warn the automobile driver of it merely because she did not know of the crossing. In cases like hers, where the undisputed evidence showed that the street and crossing and surroundings were level and smooth; that her view of the street, crossing, and approaching engine was open and unobstructed for more than 800 feet; that the street crossing was not extra hazardous or dangerous; nor did it or anything in any

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