Greeson v. Texas & Pac. Ry. Co.

• Decision Date: 15 January 1958
• Docket Number: No. 5232,5232
• Citation: 310 S.W.2d 615
• Court: Texas Court of Appeals
• Parties: Helen GREESON et al., Appellants, v. TEXAS & PACIFIC RAILWAY COMPANY, Appellee.

Page 615

310 S.W.2d 615

Helen GREESON et al., Appellants, v. TEXAS & PACIFIC RAILWAY COMPANY, Appellee.

No. 5232.

Court of Civil Appeals of Texas, El Paso.

Jan. 15, 1958.

Rehearing Denied March 5, 1958.

John J. Watts, W. R. Barnes, Odessa, Curtis White, Dallas, for appellants.

Hill D. Hudson, Pecos, McDonald & Shafter, Odessa, for appellee.

HAMILTON, Chief Justice.

This suit is for damages brought by Helen Greeson for herself and minor children, and for the parents of the deceased, Jasper Everett Greeson, growing out of the death of Greeson, husband of said Helen Greeson, as the result of a train-truck collision which occurred in Ector County, Texas, on the Texas and Pacific Railroad at a place known at the Duoro Crossing, about ten miles west of Odessa, Texas. United States Fidelity & Guaranty Company intervened in the suit to recover what had been paid as compensation benefits growing out of Greeson's death, and El Paso Natural Gas Company intervened in the suit to recover for damages to tractor, trailer and ditch digger.

The jury, in answer to special issues, absolved the defendant railroad company of all acts of negligence alleged by the plaintiff, except it found that the placing of the rear of the freight train on the passing track within 30 feet of the crossing was negligence, and that such negligence was a proximate cause of the collision. The jury further found that said crossing was extrahazardous. The issues of discovered peril were answered in favor of the defendant railroad. In respect to the defensive issues submitted, the jury found that the deceased, Greeson, failed to keep a proper lookout, and that such failure was a proximate cause of the collision. The jury found that Greeson, after having stopped, proceeded to cross while the train was within approximately 1,500 feet of the crossing and emitting a signal audible from such distance, and by reason of its speed and nearness to such crossing constituted an immediate hazard; and further found the such action was a proximate cause of the collision. The jury also found that as Greeson attempted to cross, he should, by the exercise of ordinary care, have known the danger involved in such attempt, and that in proceeding to cross he was negligent, and that such negligence was a proximate cause of the collision. Damages found by the jury to have been suffered by appellants totaled $212,000. On these findings of the jury, the court rendered judgment for the defendant, Texas and Pacific Railway Company, from which the appellants have perfected their appeal.

Appellants contend that the trial court was in error in not granting appellants judgment on the verdict, their contention being that the jury having found that the crossing in question was extra-hazardous, any findings of contributory negligence on the part of the deceased were immaterial, and should have been ignored by the court in entering its judgment. We disagree with the appellants on this contention. Regardless of the findings of the jury on contributory negligence of the deceased, in order for the appellants to have a verdict in their favor, there must be some findings of the jury upon which the court could base a judgment against the appellee. In this case the jury found that the speed of the train was not negligence; that the failure of the railroad to have a flagman at the crossing was not negligence; that the engine crew did not fail to sound the whistle or to ring the bell at and for the required statutory distance. The jury further found that the fireman and engineer both kept a proper lookout. The only negligence found against the appellee railroad was that the placement of the freight train on the passing track 30 feet from the crossing was negligence, and that such negligence was a proximate cause of the accident. These findings of the jury could not form the basis of a judgment for appellants, because it has long been the rule of law in Texas that the mere obstructing of a crossing by a railroad does not constitute ground for recovery and cannot be, standing alone, the basis of a judgment. In the case of Texas & Pacific Railway Co. v. Boyle, Tex.Civ.App., 29 S.W.2d 927, 930 (writ dismissed), this court announced such a rule in a similar case. In that case, freight cars were left on the side track in such a manner as to prevent the driver of the plaintiff's truck from seeing the approaching train. They found that the railway was negligent in permitting such obstruction, which negligence was a proximate cause of the accident. The jury further found that the defendant properly operated its train, as was found by the jury in the instant case. Judge Walthall, in reversing the verdict for the plaintiff, uses the following language:

'Can a judgment predicated on a bare jury finding that the railroad company was negligent in permitting obstructions on its right of way; and that such negligence was the proximate cause of the injury, as a matter of law, sustain a Judgment for damages, when the balance of the verdict expressly finds on all issues submitted that the railroad company was not negligent in any particular in operating the train on and across the crossing on the occasion in question? We are of the opinion that this question should be answered in the negative * * *. 'It (the obstruction of the crossing) is merely a matter to be considered on the question whether there was negligence in the operation of a train at the crossing.' The operation of the train at the crossing under all the facts is the controlling issue in the case.'

The cases of Galveston, H. & S. A. Railway Co. v. McCrorey, Tex.Com.App., 23 S.W.2d 691, and Wichita Falls & Southern Railway Co. v. Anderson, Tex.Civ.App., 144 S.W.2d 441, lay down the same rule. We find no cases in Texas contrary to this rule.

Appelleants contend, further, that the jury having found that the crossing in question was an extrahazardous crossing, and since the appellee did not show affirmatively that it used extraordinary means to signal the approach of their trains then appellee should be held liable as a matter of law, regardless of whether or not deceased was guilty of contributory negligence. We do not find that any of the cases cited by appellants so hold. The only issue requested by appellants on the maintenance of the crossing in connection with the issue on extrahazardous crossing was submitted to the jury. That issue was whether or not appellee was negligent in failing to have a flagman at such crossing. The jury answered that issue in favor of appellee. It seems to be the law that the railroad is not held liable as a matter of law because of a hazardous crossing, but in order to hold a railroad liable on the maintenance of a crossing there must first be a finding that the crossing was extrahazardous, and then that the railroad was negligent in the maintenance of such crossing; that is, by failing to maintain a flagman, mechanical signaling device, etc. Finto v. Texas & N. O. Ry. Co., Tex.Civ.App., 265 S.W.2d 606; Attebery v. Henwood, Tex.Civ.App., 177 S.W.2d 95. Finding no merit in appellants' contention that judgment should be entered for appellants on the verdict, we overrule all of appellants' points making such contention.

In the alternative, appellants contend that the case should be remanded for a new trial, principally on the ground that findings of contributory negligence on the part of deceased are in conflict with the finding of the jury that the crossing in question was extrahazardous, and also on the ground of no evidence to support such findings, and insufficiency of the evidence, as well as the finding of contributory negligence on the part of deceased being against the great weight of the testimony. Our courts have uniformly held that where the deceased is found to be guilty of contributory negligence, and such contributory negligence was a proximate cause of the accident, such finding is controlling. In the case of Wortham v. Bull, Tex.Civ.App., 19 S.W.2d 211, 212 (error refused), it is held:

'Generally speaking, the defense of contributory negligence is defeated only by the doctrine of discovered peril, which issue is not involved in this case.'

In the instant case, of course, as stated above, the issues on discovered peril were found by the jury in favor of the appellee. None of the cases cited by appellants hold that the finding of an extrahazardous crossing is sufficient to override the finding by the jury of contributory negligence proximately causing the collision. In the case of McMahan v. Texas & N. O. Ry. Co., 138 Tex. 626, 161 S.W.2d 70, by the Commission of Appeals, the jury found that the crossing was more than ordinarily dangerous as a nighttime crossing, and found the railway to be guilty of negligence in several instances in the manner of maintaining the crossing, and that such failures were each a proximate cause of the collision; yet the jury having found the plaintiff guilty of contributory negligence, the court held the plaintiff could not recover.

The jury found that the deceased, at the time in question, failed to keep a proper lookout. The court had defined, in its charge, 'proper lookout' to mean, 'such a lookout as a person of ordinary prudence would keep under the same or similar circumstances.' In other words, the jury found the deceased failed to keep a proper lookout under the circumstances of the hazardous crossing as it existed at the time in question. The evidence shows that the deceased had used this crossing numerous times. There is certainly no contention that he could not see the cars on the passing track. There is further evidence that the fireman and engineer on defendant's train could see the deceased's truck at all times prior to the collision, and evidently the jury believed that the deceased could have seen the train had he kept the proper lookout, even though it may not have been as plainly visible as it would have been if the freight train had not been...