Gentry v. Southern Pacific Company

Decision Date31 December 1969
Docket NumberNo. 507,507
Citation449 S.W.2d 527
PartiesOpal GENTRY, Appellant, v. SOUTHERN PACIFIC COMPANY, Appellee. . Corpus Christi
CourtTexas Court of Appeals

Cullen, Mallette, Maddin, Edwards & Williams, Harry Maddin, Victoria, Larkin T. Thedford, Edna, for appellant.

Anderson, Smith & Null, Joseph P. Kelly, Victoria, for appellee.

OPINION

GREEN, Chief Justice.

Separate suits were filed in the district court of Jackson County by Mrs. Opal Gentry and Mrs. Velma Eloise Stanley against defendants Southern Pacific Company and E. R. Weitzel, engineer of the trian in question, to recover damages for the deaths of their respective husbands James S. Gentry and Ernest Stanley. Both men were killed in an automobile-train intersection collision, Gentry being the driver of the car and Stanley being a passenger in the car. The cases were consolidated for one trial and judgment. The jury on the trial of the cases as consolidated found negligence and proximate cause on the part of Gentry, the driver of the car, and negligence and proximate cause of the railroad employees, and also answered all issues of discovered peril against defendants. On motion by defendants to disregard the answers to the discovered peril issues, and to render judgment n.o.v. for defendant, the court found that there was no evidence to support the findings of the jury as to the discovered peril issues and sustained defendant's motion to disregard such findings, and rendered a take-nothing judgment as to the plaintiff Mrs. Gentry, widow of the driver of the car. The court rendered judgment favorable to plaintiff Mrs. Stanley, widow of the passenger, based on the independent findings of negligence of the railroad employees, and no findings of contributory negligence of Stanley.

Mrs. Gentry appealed to this Court directly from that portion of the judgment sustaining defendant's motion to disregard the findings of discovered peril, her appeal being our Cause No. 507. The defendants filed in the district court their motion for new trial as to the judgment rendered against them and favorable to the plaintiff Mrs. Stanley, and defendants appealed from the order overruling their amended motion for new trial. (Our No. 516) After both cases had reached this Court, an order was entered by us consolidating the two appeals for purposes of briefing and oral argument. For purposes of disposition, we are setting aside such consolidation, and ordering the causes severed. The case now under consideration is the appeal of Mrs. Opal Gentry from the take-nothing judgment rendered n.o.v. against her.

The sole point of error of appellant Gentry is that the trial court erred in disregarding the findings of the jury to the discovered peril issues (special issues Nos. 10--15 inclusive in the court's charge), and in rendering judgment for defendants and against appellant. Appellees reply by two counterpoints, to the effect (1) that there was no evidence to support the jury's answers to special issues 13, 14 and 15 of the discovered peril series, and in the alternative, (2) that such answers were against the great weight and preponderance of the evidence. It is out opinion that the appellant's point of error should be overruled, and appellee's no evidence counterpoint should be sustained. In reaching this conclusion, we have applied the rule that the evidence is to be considered in its most favorable light in support of the plaintiff's case. Anderson v. Moore, Tex.1969, 448 S.W.2d 105; Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60.

The accident in question occurred when the front end of the locomotive (Diesel) hit the automobile in which Gentry and Stanley were riding as the automobile was crossing the single set of railroad tracks at the intersection of said tracks and paved Farm to Market Highway 234 at the small community of El Toro in Jackson County. The crossing at this site was protected by an automatic clearly visible electrical signal device giving forth both visible and audible signals of the approach of the train, and the undisputed evidence was that the signals on such device were functioning properly on the occasion in question. The only eyewitnesses to the events leading to the accident were, so far as is disclosed in the record, in addition to the deceased Gentry and Stanely, the engineer and acting fireman, and it was upon the testimony of these two members of the engine crew together with expert evidence from an experienced engineer of another company that the plaintiffs relied in order to raise the fact issues pertaining to the doctrine of discovered peril.

E. R. Weitzel testified substantially as follows:

He was the engineer on this occasion. His train, in addition to the four-unit diesel engines, consisted of seventy four loaded and forty empty freight cars and a caboose. He and the acting fireman, J. J. Forman, were in the first of the four units. The train had left Houston that morning and was travelling in a westerly direction towards Victoria. The day was clear and visibility was good. About 3:45 P.M., shortly after passing through Edna and when the head engine was approximately one thousand feet from the El Toro crossing, Forman, who was occupying the left hand seat of the cab, told him 'There will be a car coming.' At this time the train was travelling about thirty nine or forty miles per hour, and had just passed the whistle board which was a quarter of a mile east of the El Toro crossing. The air horn on the locomotive was being blown, and continued to blow until after the collision, and the bell on the engine was being rung and also continued to ring. At the time Forman made this remark Weitzel did nothing to prepare to stop or slow down the train other than to place his hand on the emergency brake, as he had no idea of any peril. He knew that the only way he could avoid colliding with a car on the track at the crossing provided one should be there when the engine would be due to reach that point, was by reducing the speed of the train, as there was no evasive action he could take; and he further knew that after 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. However, he did not know any facts to cause any realization that a car was in danger of collision in time to take any action to avoid the collision. He assumed that the car which Forman had spoken of would be guided by the warning signals at the crossing.

At a point about one hundred feet from the crossing, the acting fireman Forman yelled: 'You are going to hit us, stop.' Weitzel then immediately placed the brakes in emergency, but at that distance it was too late to slow the speed of the train or do anything to avoid he collision. The head engine, with the emergency brake on the train, actually went over two thousand feet beyond the crossing before it stopped.

He, Weitzel, did not see the automobile before the collision; he relied on the fireman to give him any information of any car approaching from the left side of the train.

The witness J. J. Forman testified in substance:

He was a brakeman employed by Southern Pacific, and on this occasion he occupied the fireman's seat on the left side of the cab in the absence of the regular fireman. His duties included keeping a sharp lookout forward and to the left as the train proceeded along . When the head engine in which he was riding with the engineer was about one thousand feet from the El Toro crossing, he noticed a car coming fast toward the crossing, at a distance when he first saw it of about two thousand feet from the crossing, and travelling about sixty to sixty-five m.p.h. He estimated the speed of the train at thirty-seven or thirty-eight m.p.h. When he first saw the car he told the engineer: 'We got a car coming up on my side pretty fast. Blow your whistle for all it is worth.' At that time, since the engine had just passed the whistle board for the El Toro crossing, the whistle was blowing loudly and the bell was being rung, and this continued until after the accident. He continued to watch the car while the train travelled several hundred feet, and neither the train nor the car seemed to change speed. He did not suggest to the engineer that he slow down or apply the brakes, nor did he apply the brake handle on his side which would have placed the braking system in effect, as he could see that the automatic signal device at the crossing was working, he knew that the horn and bell on the engine were giving their signals of noise, and he knew that the car had more than sufficient time to stop before reaching the crossing. When the head engine of the train got to about three hundred feet of the crossing, and thereafter for about 200 fet, his view of the car and the road became obstructed by trees and underbrush. The car was still several hundred feet from the crossing when he lost sight of it, and had more than sufficient time to stop. The warning signals at the crossing were properly operating, as well as those on the engine, and he did not think it necessary to take any action toward slowing the speed of the train. As the engine emerged from the brush and trees which had obstructed his view, about one hundred feet from the crossing, he saw the car still coming at a high rate of speed, and realizing the danger to it, shouted for the engineer to stop. The engineer immediately applied the emergency brakes, but it was by then too late for the braking system to slow down the speed of the train before it arrived at the crossing. The brakes on the automobile were also applied, laying down skid marks, then released, and the car proceeded onto the crossing in front of he engine and the collision occurred. Both of the occupants of the car were killed.

Wayne Miller, called as a witness by plaintiffs, was at his barn which he estimated to be from one hundred fifty to two...

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