Fitch v. Missouri-Kansas-Texas Transportation Co.

• Decision Date: 07 April 1971
• Docket Number: No. 29749.,29749.
• Citation: 441 F.2d 1
• Parties: Lilly FITCH, Individually, and as Next Friend of Donna Diane Fitch, et al., Plaintiffs-Appellees, v. MISSOURI-KANSAS-TEXAS TRANSPORTATION COMPANY, d/b/a M-K-T Railroad. Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 1 (1971)

Lilly FITCH, Individually, and as Next Friend of Donna Diane Fitch, et al., Plaintiffs-Appellees, v. MISSOURI-KANSAS-TEXAS TRANSPORTATION COMPANY, d/b/a M-K-T Railroad. Defendant-Appellant.

No. 29749.

United States Court of Appeals, Fifth Circuit.

April 7, 1971.

Ralph Elliott, Elliott & Nall, Sherman, Tex., W. A. Thie, Dallas, Tex., for defendant-appellant.

Jack G. Kennedy, John D. Hill, Brown, Kennedy, Hill & Minshew, Sherman, Tex., for plaintiffs-appellees.

Before WISDOM, THORNBERRY and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

On a dark, misty January night in 1968, an automobile carrying a trio of motorists crashed into the lead gondola car of a Missouri-Kansas-Texas Transportation Company (M-K-T) train at an intersection in Denison, Texas. One of the car's occupants, William Edward Fitch, was killed instantly. Subsequently his wife, Lilly Fitch, individually and as next friend of the couple's four minor daughters, instituted an action against M-K-T under the Texas Death and Survival Statutes for damages for the death of her husband. From a judgment for plaintiffs in the sum of $95,000, M-K-T appeals. We remand the cause for a new trial because of error in the court's charge.

This appeal by M-K-T raises twelve points. In essence appellant contends that the trial court erroneously denied its motions for instructed verdict and for judgment notwithstanding the verdict; that the court's charge to the jury was erroneous in several respects; and that the court erred in refusing to reduce the allegedly "grossly excessive" award of damages. Since we find error in the court's charge serious enough to necessitate a new trial, we do not reach appellant's other points.

Because the concept is central to the matter before us, we begin consideration of this case by capsuling the Texas law with respect to the duty owed by a railroad to motorists approaching one of its crossings. Though every railroad crossing is tinged with danger, the common law and statutory duty of a railroad in Texas with respect to an ordinary crossing is simply to provide and maintain thereat one crossing sign "* * * with large and distinct letters placed thereon, to give notice of the proximity of the railroad and warn persons of the necessity of looking out for the cars." TEX.REV.CIV.STAT.ANN. art. 6370 (1926); Karr v. Panhandle & S. F. Ry., 153 Tex. 25, 262 S.W.2d 925 (1953); Muniz v. Panhandle & S. F. Ry., 285 S.W.2d 809 (Tex.Civ.App. — Amarillo 1955, writ ref'd n. r. e.). With respect to an "extra hazardous" crossing, however, it is incumbent upon a railroad company to provide extraordinary means such as lights or signal bells to warn persons approaching its crossing or intersection. See, e. g., Fort Worth & D. Ry. Co. v. Williams, 375 S.W.2d 279 (1964); Texas & N. O. Ry. v. Compton, 136 S.W.2d 1113 (1940); Muniz v. Panhandle & S. F. Ry., supra; Lundberg v. Missouri-K-T Ry., 232 S.W.2d 879 (Tex. Civ. App. — Waco 1950, writ ref'd n. r. e.); St. Louis Southwestern Ry. v. Barr, 148 S.W.2d 924 (Tex.Civ.App. — Dallas 1940, writ dism'd jdgmt. cor.); Thompson v. St. Louis Southwestern Ry., 55 S.W.2d 1084 (Tex.Civ.App. — Texarkana 1932, no writ). A railroad crossing is characterized as extrahazardous under Texas law when it is so perilous that prudent persons, in the exercise of ordinary care, cannot use it with safety in the absence of extraordinary warning devices. See, e. g., Texas & N. O. Ry. v. Compton, supra; Muniz v. Panhandle & S. F. Ry., supra. Since the degree of danger associated with a crossing is not constant but varies with the concurrent circumstances, "whether or not any given set of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger or extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds." Fort Worth & D. Ry. v. Williams, supra, 375 S.W.2d at 283; Missouri-K-T Ry. v. Wagner, 400 S.W.2d 357, 360 (Tex.Civ. App. — Waco 1966, writ ref'd n. r. e.)

In the instant matter a substantial portion of appellees' case was founded on the theory that the intersection at which the accident occurred was an extrahazardous one and that M-K-T was thus negligent in failing to equip the crossing and the approaching train with extraordinary warning devices. The evidence adduced at trial regarding the physical conditions associated with the crossing at the time of the accident was clearly sufficient to raise the question of extrahazardous crossing. Consequently, the trial judge submitted the issue to the jury. After defining, inter alia, the term extrahazardous crossing, the judge stated, "Plaintiffs allege that the conduct of the defendant, at the time and place in question, was negligent in the following particulars: * * * (7) In failing to place an adequate light to warn approaching traffic of the presence of the train at or upon the crossing in question; (8) In failing to give visible signal sufficient to warn approaching traffic that the train in question was about to occupy the crossing in question; (9) In failing to place an adequate light on the end of the leading gondola car in question; * * * (11) In that the crossing was an extrahazardous crossing at the...