Gentry v. Southern Pac. Co.
| Decision Date | 15 July 1970 |
| Docket Number | No. B--1997,B--1997 |
| Citation | 457 S.W.2d 889 |
| Parties | Opal GENTRY, Petitioner, v. SOUTHERN PACIFIC COMPANY, Respondent. |
| Court | Texas Supreme Court |
Cullen, Edwards, Williams & Stevenson, Donald A. Edwards, Victoria, for petitioner.
Anderson, Smith & Null, Conde N. Anderson and Joseph P. Kelly, Victoria, Thomas R. Bell, Edna, Jack Salyer, Bay City, Kilgore, Cole & Garrett, Emmett Cole, Jr., Victoria, Robert S. Pieratt, Houston, for respondent.
This is an automobile-train collision case involving an application of the doctrine of discovered peril.
Mrs. Opal Gentry filed this action against Southern Pacific Company to recover money damages for the death of her husband, James Gentry, who was killed in the collision. The jury found that the engineer and fireman operating the train at the time of the accident were guilty of primary negligence; that there was contributory negligence on the part of the deceased driver of the automobile; and that each of these acts of negligence was a proximate cause of the collision. The jury also found all discovered peril issues in favor of plaintiff.
The trial court sustained defendant's motion to disregard the answers to the discovered peril issues, and rendered judgment non obstante veredicto in favor of the Railroad. The take-nothing judgment against the plaintiff was affirmed by the court of civil appeals. 449 S.W.2d 527. We affirm the judgment of the court of civil appeals.
In this Court, petitioner, Mrs. Gentry, urges a single point of error, to-wit: The court of civil appeals erroneously held that there was no evidence of probative force to support the submission of Special Issue No. 13 of the discovered peril issues and in affirming the judgment of the trial court non obstante veredicto against plaintiff. This narrows the ultimate question to whether there was Some evidence from which the jury could reasonably infer that either the fireman or the engineer Actually did discover and realize that the decedent was in a position of peril, In time to have avoided the collision by the use of all the means at his command, consistent with the safety of the train and its crew.
We will review the evidence and the inferences therefrom in the light most favorable to plaintiff and in support of the jury's answer. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); and cases herein after cited.
The accident occurred near the small community of El Toro, Texas, on March 6, 1965, at approximately 3:45 p.m. The weather was clear. The automobile was traveling in a northerly direction on Farm to Market Road 234, with the train traveling in a westerly direction at approximately right angles. As the automobile approached the crossing there were five warnings: (1) a round sign on the shoulder of the road bearing an X with the letter R on each side of the sign; (2) an X, with an R on each side, painted on the surface of the portion of the road being traveled by the deceased driver; (3) cross arms with two flashing red lights; (4) the engine's horn or whistle; and (5) the engine's bell. The undisputed evidence shows that the audible and visual warning devices were functioning properly on the occasion.
The engineer, Mr. Weitzel, testified in substance as follows: the compartment from which the train is operated by the engineer is located in the first engine or unit. The particular unit involved in the accident is a 1500 horsepower diesel electric locomotive. The entire train consisted of four units, a caboose, and one hundred and fourteen cars, seventy-four of which were loaded and forty empty. The engineer occupies the right side of the unit and the fireman is located on the left. The primary duty of the fireman is to maintain a constant lookout for obstructions on the tracks to the left-front of the train, and to alert the engineer of traffic that is approaching the railroad-highway crossings from his side.
Traveling at a speed estimated to have been 39 or 40 miles per hour, the lead unit approached the whistle board located one-fourth of a mile east of the intersection. A whistle board is a railroad market designed to inform the engineer of an up-coming crossing, and alerts the engineer to the necessity for blowing the air horn as a warning to approaching traffic. At that time Weitzel commenced blowing the air horn. When the unit was approximately 1,000 feet east of the crossing the fireman, Forman, said that 'he saw an automobile.' Weitzel continued to blow the air horn, and he also turned on the bell ringer. He did nothing else, because, as far as he knew, that was all there was to do. He looked to the left but could not see the car, possibly because 'there were trees that might have been in the way.' Although such size trains as this one do not 'stop on a dime,' he never had reduced the speed of any train in an effort to avoid a collision. Weitzel did nothing to prepare to stop or slow the train other than to place his hand on the emergency brake without applying it. He knew that the only manner in which he could avoid a collision with a car on the track at the crossing should one be there, was by reducing the speed of the engine, because he could not take any evasive action on a train track. The speed of the train could have been reduced somewhat before reaching the crossing, if he had applied the brake when the fireman had first alerted him of the oncoming automobile, which was at a point 1,000 feet from the intersection. He knew that once he passed a point three or four hundred feet from the crossing, he could do nothing effective to stop or slow the train in time to avoid a collision. At a distance of about 100 feet east of the intersection the fireman called out, 'They are going to hit us, stop,' and then 'put the brakes into emergency on the unit.' It was too late. The lead unit, even with the emergency brake on, traveled over two thousand feet beyond the point of impact, pushing the automobile along in front of it. In conclusion, Weitzel stated that he never did see the automobile, but rather, that he relied on the fireman to give him any information of any car approaching from the left side of the train.
The fireman, Forman, testified: that he was actually a brakeman, but that he was serving as fireman on March 6, 1965. He knew that he must maintain lookout for any obstructions forward and to the left of the diesel locomotive, and to alert the engineer of the...
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