Gulf, C. & S. F. R. Co. v. Pratt

• Citation: 262 S.W.2d 775
• Decision Date: 12 November 1953
• Docket Number: No. 12549,12549
• Parties: GULF, C. & S. F. R. CO. v. PRATT.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 775

262 S.W.2d 775

GULF, C. & S. F. R. CO. v. PRATT.

No. 12549.

Court of Civil Appeals of Texas, San Antonio.

Nov. 12, 1953.

Rehearing Denied Dec. 9, 1953.

Wigley, McLeod, Mills & Shirley, Galveston, Woodruff & Holloway, Brownwood, for appellant.

O'Dowd & O'Dowd, Waco, for appellee.

NORVELL, Justice.

This is a railroad crossing collision case. Appellant, Gulf, Colorado and Santa Fe Railway Company, brought suit against Charles Delbert Pratt for damages to its train, equipment and tracks, occasioned by the collision. Pratt filed a cross-action for personal injuries and damages to his truck, and, after a jury trial, was awarded a judgment of $8,500, despite jury findings that he was guilty of negligence in numerous particulars. The theory of recovery was the doctrine of discovered peril. The applicability of such doctrine under the facts of this case, and the sufficiency of the evidence to support the jury's answers to the questions relating thereto, present the controlling issues upon this appeal.

The collision took place on March 6, 1952, between seven and eight o'clock in the morning, in clear daylight. The crossing involved is about four miles from the town of Menard where the highway (running east and west) connecting Menard and Brady intersects the railroad track at an approximate right angle. The evidence indicates that the highway right-of-way at this point is approximately 100 feet in width and the central portion thereof is occupied by an asphalt hard surface approximately 20 feet in width. The highway was fenced and cattle guards were constructed at the points where the railroad intersected the fence, each cattle guard being approximately 50 feet from the center line of the highway.

Appellant's train was traveling in a southerly direction, while appellee in his truck was going west toward Menard. While the jury found that the crossing was extrahazardous and dangerous, this finding is without support in the evidence. The evidence indicates, and photographs introduced in evidence demonstrate, that the crossing is open and the view thereof from the highway is unobstructed; that the railbed is not more than three and a half feet below the general level of the ground at any point within several hundred feet on either side of the crossing, and that such crossing could have been seen by one driving along the highway in a westerly direction for a distance of 300 to 350 yards. Under the facts of this case liability can not be predicated upon the failure to have a flagman or electrical warning device at the crossing. Missouri, K. & T. R. Co. of Tex. v. Long, Tex.Com.App., 299 S.W. 854; Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, writ refused.

We further regard the findings that the train was being operated at a fast, careless and reckless rate of speed, and that a failure to ring the engine bell was a proximate cause of the collision, as being without support in the evidence. The only evidence indicating that the train was traveling in excess of 20 or 25 miles an hour was Pratt's testimony that the train 'was coming about as fast as he was.' He had estimated that he was traveling about 45 miles an hour. In this Court, as a necessary element of his discovered peril theory, appellee took the position that the speed of the train was not in excess of 25 miles per hour. However this might be, the evidence is that the crossing was four miles from town, and there is no reasonable basis for saying that either 25 or 45 miles per hour is a dangerous speed for the open country. Absent other considerations, the engineer is not required to slacken the speed of his train below 45 miles per hour (the maximum estimate stated) whenever he sees a motor vehicle approaching a crossing. The evidence demonstrates rather conclusively, and the jury found, that the whistle or horn on the train was blown. This produced a warning sound much louder than the bell, and this fact, together with others hereinafter mentioned, demonstrates that the failure to ring the bell could not have been the proximate cause of the collision.

It is conceded that the sole basis of appellee's recovery rests upon the issues submitting the 'discovered peril doctrine.' The jury found that appellee, Pratt, was guilty of the following negligent acts or omissions proximately causing the collision, viz.: (a) In failing to keep a proper lookout (generally, and also to ascertain whether there was a train upon the crossing in question); (b) in failing to stop and continuing to drive his truck forward on the highway after the Motor Car Engine of the Railway Company, in approaching within 1500 feet of the highway crossing, had emitted a signal audible for such distance, and after such Motor Car Engine, by reason of its speed and nearness, was an immediate hazard; (c) in failing to stop his truck after the train became plainly visible and in hazardous proximity to the crossing; (d) in failing to apply the brakes on the truck after the train became visible to him; (e) in failing to reduce the speed of his truck after the train became visible to him; (f) in failing to apply his brakes after the train was upon the intersection; (g) in failing to reduce the speed of the truck after the train was upon the intersection (the jury found that the train was upon the intersection before Pratt's truck reached the same); (h) in wholly failing to heed the warning sounds emitted by the train as it approached the crossing; (i) in the 'manner in which he operated his truck at the time of and immediately prior to the collision in question.'

Under the above findings, it is abundantly clear that Pratt violated the following provisions of Article 6701d, § 86, Vernon's Tex.Civ.Stats., viz.:

'Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when: * * * (c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard; (d) An approaching train is plainly visible and is in hazardous proximity to such crossing.'

However, in Ford v. Panhandle & Santa Fe Ry. Co., Tex., 252 S.W.2d 561, the Supreme Court held that the fact that a person had been guilty of disobeying the injunctions of Article 6701d, § 86, did not preclude him from recovering under the doctrine of discovered peril.

In the present case, the jury found that: (a) Pratt, prior to the collision, was in a perilous situation; (b) the engineer of the train actually discovered Pratt's peril within such time and distance as that, by the means at hand, consistent with the safety of himself, his train, and the occupants of his train, he could have avoided the collision; (c) the engineer realized that Pratt would probably not extricate himself; (d) the engineer failed to exercise ordinary care in the use of the means at hand consistent with safety to avoid the collision; (e) such failure was a proximate cause of the collision.

Appellant attacks the sufficiency of the evidence to support the discovered peril finding, as a matter of law and as a matter of fact. Pratt testified that the right-hand front portion of the truck struck the train at the coupling between the motor engine and the coach, the two units composing the train, and that the rear end of the truck swerved around and hit the coach. He placed the truck at the point of impact upon the left-hand or south portion of the road, with its left wheels about two feet off the pavement on the left-hand side of the highway. Pratt further testified that when he saw the motor engine come through the right-hand or north cattle guard, he swerved to the left, without putting on his brakes. This accounts for the truck's position on the left-hand or south portion of the highway right-of-way.

The engineer testified that as he approached the crossing, with the whistle blowing and the bell ringing, he slowed down to about 20 miles per hour; that when he was about two to three hundred feet away he saw the truck approaching the crossing, some five or six hundred feet distant therefrom, and believed the truck would slow down and let him by; that upon reaching the crossing, he released the air from the air brakes, and about then the truck plowed into the rear end of the train. On cross-examination the engineer testified that he did not observe that the truck driver slakened speed in approaching the crossing; that he could have stopped the train within 100 feet had the truck driver given him warning that he wasn't going to stop, but that, 'I didn't know he wasn't going to stop. I didn't know we had a wild driver like that down in the country.'

The conductor of the train testified that he was sitting in the front end of the coach on the left-hand (south) side looking for deer and observed Pratt's truck approaching at what he considered a dangerous rate of speed. According to this witness, the place of...