Flores v. Missouri-Kansas-Texas R. Co.

• Decision Date: 21 February 1963
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 16109,16109
• Citation: 365 S.W.2d 379
• Parties: Isabel FLORES et al., Appellants, v.RAILROAD COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 379

365 S.W.2d 379

Isabel FLORES et al., Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al., Appellees.

No. 16109.

Court of Civil Appeals of Texas, Dallas.

Feb. 21, 1963.

Rehearing Denied March 15, 1963.

McKool & McKool, Dallas, for appellants.

O. O. Touchstone and John B. Webster, Dallas, for appellees.

WILLIAMS, Justice.

From an adverse jury verdict and judgment in a wrongful death action based upon a railroad crossing accident appellants appeal. By their sole point of error appellants complain of the admission of certain testimony of a police officer who investigated the accident. We have concluded that no reversible error is demonstrated by the record and therefore the judgment of the trial court is affirmed.

On February 3rd, 1961 Ben M. Flores was killed in an automobile--train collision in Dallas, Texas, where the Missouri-Kansas-Texas Railroad Company tracks cross Harry Hines Blvd. Suit was instituted by plaintiffs-appellants for damages resulting from the death Flores. A large number of acts of negligence were alleged against the Railroad Company and its engineer. Defendants countered by alleging a large number of acts of contributory negligence against the deceased Flores. At the conclusion of the evidence the trial court submitted the case on eighty-one special issues. Thirty-nine of these special issues inquired concerning the negligence and proximate cause on the part of the defendants. All of these issues were answered by the jury in favor of the defendants thereby finding that the defendants were not guilty of any negligence which proximately caused Flores' death. In thirty-eight special issues the court inquired concerning various acts of contributory negligence on the part of the deceased Flores, including issues with reference to proximate cause. All of the issues were answered against plaintiffs with the exception of the issues relating to speed. The jury found that Flores was guilty of contributory negligence in failing to keep a proper lookout; by failing to bring his automobile to a stop; by failing to slow down his automobile; by failing to apply his brakes; by failing to listen for a horn or whistle; by failing to bring his automobile to a stop within no more than 50 feet nor less than 15 feet from the nearest rail of the railroad crossing. In answering the issues relating to money damages the jury answered 'no dollars and no cents'. For the purpose of this opinion it is important to note that the trial court submitted no issues to the jury relating to the question of 'right-of-way' nor was any legal definition of the term 'right-of-way' given as a part of the court's charge.

During the trial of the case appellees called as one of their witnesses officer M. E. Baker, of the Dallas Police Department, one of the officers who investigated the collision shortly after it occurred. This officer had made certain notes in connection with his investigation and had prepared a written report relating to his findings. As a part of this report he had stated that Flores had failed to yield the right-of-way to the switch engine on the occasion in question. Appellees attempted to offer in evidence this report but same was not admitted because of objections interposed by appellants' counsel. The record shows that several efforts were made by appellees' counsel to introduce the report into evidence but each time the court sustained appellants' objection thereto. Thereupon the predicate was layed to demonstrate the witness to be an expert in the field of traffic investigation. The witness testified that he had received special training in a police department school which taught him how to make a correct investigation in cases of this kind; that he had been doing this kind of work exclusively for over five years and that, based upon such training, he felt able and qualified to make an intelligent investigation and report same fairly and accurately. Upon being asked questions concerning his expert opinion objection was made but overruled by the court with the statement that: 'I am letting it in on the theory that he is an expert. Go ahead.' Thereupon the following proceedings occurred:

'Q. Well now you made another finding that you haven't told the jury about yet, with reference to the right-of-way.

'MR. McKOOL: Now, did the court sustain our objection as to that?

'THE COURT: Isustained the objection about him asking about that, being leading and suggestive.

'MR. McKOOL: Note our exception, Your Honor, Can we have a full bill on these, Your Honor?

'THE COURT: Yes.

'q. You remember, Mr. Baker, that you made another finding with reference to the yielding of right-of-way.

Now, I want you to tell the jury what that was?

'A. Like I say, these in the past, where there have been signals at the intersection where trains have been involved in accidents; we normally always say that the car failed to yield the right-of-way, because if the lights----

'Q. You have to have something to find that on, don't you?

'Q. Well, the lights working properly, then we say that normally the car should yield, but of course, I wasn't there.

'Q. You found in this instance that it did not?

'A. Like I say, this is the way----

'Q. Well, you can answer that question. In this instance you found that it did not yield the right-of-way?

'A. Well, I presume it didn't, it was in collision.

'Q. Well, that is what you found, wasn't it?

'A. Yes, sir.'

Appellants, in their only point on appeal, earnestly contend that the admission of this testimony from Baker requires reversal of the judgment because (1) such testimony clearly invaded the province of the jury on the very issues to be answered by the jury; (2) that by admitting such testimony the contents of the police officer's report were indirectly admitted into evidence; (3) that the officer's conclusion and opinion concerning the failure of the deceased to yield the right-of-way affected all of the special issues concerning contributory negligence of Flores; and (4) that the admission of the testimony over timely and repeatedly objections is so highly prejudicial that appellants were denied a fair trial. We cannot agree with appellants in any of these contentions.

The record presented to us dealing specifically with appellants' only complaint concerning the admissibility of officer Baker's testimony concerning failure of the deceased to yield the right-of-way is far from satisfactory as to the question of sufficiency of the objections interposed by appellants' counsel. Scattered over several pages of the statement of facts appear objections as to 'opinion and conclusion' and 'invade the province of the jury' but just prior to the admission of the complained testimony appears the Court's remark that he was sustaining the objection based upon the ground that it was 'leading and suggestive'. Thereupon attorneys for appellants took exception and requested a 'full bill' which the court granted but which was not further developed. Nowhere in the record do we find objection to the testimony that it is not supported by pleadings. There were no pleadings before the court on the issue of right-of-way. Nowhere do we...