Hardgrave v. Texas & Pacific Railway Company, 16665

• Decision Date: 18 March 1966
• Docket Number: No. 16665,16665
• Citation: 401 S.W.2d 693
• Court: Texas Court of Appeals
• Parties: Louis Berry HARDGRAVE et al., Appellants, v. TEXAS & PACIFIC RAILWAY COMPANY et al., Appellees. . Dallas

Page 693

401 S.W.2d 693

Louis Berry HARDGRAVE et al., Appellants, v. TEXAS & PACIFIC RAILWAY COMPANY et al., Appellees.

No. 16665.

Court of Civil Appeals of Texas Dallas.

March 18, 1966.

Rehearing Denied April 22, 1966.

Geary, Brice & Lewis, W. S. Barron, Jr., Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Dallas, for appellants.

Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for appellees.

CLAUDE WILLIAMS, Justice.

Appeal from a 'take nothing' judgment in a personal injury action. On November 18, 1958 at approximately 11:15 p.m. Louis B. Hardgrave and Clarence T. McCleery, both employed by Valley Steel Products Company, were occupants of a White diesel truck proceeding in a northerly direction on South Lamar Street in the City of Dallas, Texas. The night was clear and the streets were dry. Hardgrave was driving the truck and McCleery was the passenger. A railroad track, commonly called the Dallas Belt Line, crossed South Lamar Street. At the point in question the railway track is in the form of a U-shaped curve. Leaving the Union Terminal Building the tracks proceed in a southeasterly direction, cross South Lamar Street and then swing in a northwesterly direction. The track is owned and maintained by the Southern Pacific Company as are the various signaling devices located at the crossing. Texas & New Orleans Railroad Company was a subsidiary of the Southern Pacific Company and, for purposes of convenience, both are referred to as Southern Pacific. The track is used almost exclusively by Texas & Pacific Railway Company. Hardgrave was aware of the existence of the railroad crossing, having crossed it various times in the past. A collision occurred between the the truck and a train operated by the Texas & Pacific Railway Company at the crossing which resulted in personal injuries to both Hardgrave and McCleery.

Hardgrave and McCleery brought this action against the Texas & Pacific Railway Company, the Southern Pacific Company and Texas & New Orleans Railroad Company seeking damages for the personal injuries sustained by them. The Travelers Insurance Company filed a plea of intervention seeking to recover workmen's compensation benefits which it had paid to both Hardgrave and McCleery.

The case was tried before the court and a jury and submitted upon fifty-five special issues. The essential jury findings may be summarized thusly: (1) and (1A) that there was a collision between a truck driven by Hardgrave and the Texas & Pacific train at the South Lamar crossing on November 18, 1958; (2) that at the time and on the occasion in question the conditions surrounding the railroad crossing were such as to make it an extra-hazardous crossing; (3), (5) that Southern Pacific did not maintain gates or a flagman at the crossing but such failure was not negligence; (7) that Southern Pacific had sufficiently visible warning lights at the crossing; (9) that Southern Pacific failed to have a sufficiently audible warning bell at the crossing in question but (10) such failure was not negligence; (12), (13) that Southern Pacific failed to provide overhead lighting at the crossing in question but such failure was not negligence; (15), (16), (17) that Texas & Pacific was operating its train at a speed in excess of 12 miles an hour on the occasion in question and that such constituted negligence and a proximate cause of the collision in question; (18) that the operators of the Texas & Pacific train did not fail to sound the whistle on the locomotive in question; (20) that Southern Pacific did maintain a wigwag signal on the south side of the crossing which was in good working order (23) that the collision in question was not the result of an unavoidable accident; (24), (25), (26) that Hardgrave failed to keep a proper lookout and that such failure was a proximate cause of the collision but was not the sole proximate cause thereof; (27), (29), (30) that Hardgrave drove the truck at an excessive rate of speed which was a proximate cause of the collision but was not the sole proximate cause thereof; (31), (32) that Hardgrave failed to apply his brakes properly and that such was a proximate cause of the collision; (34--37) that a clearly visible electric signaling device was given to warn of the immediate approach of the train in question before the truck reached a point 15 feet from the nearest railroad track; that when the railroad engine was approaching within 1500 feet of the crossing such engine gave an audible signal before the truck reached a point 15 feet from the nearest rail and that by reason of its speed or nearness to the crossing, the train was an immediate hazard; (38--41) that the train was plainly visible before the truck reached a point 15 feet from the nearest rail and was therefore in a hazardous proximity so that the failure of the truck to stop within not less than 15 feet of the nearest rail was a proximate cause of the collision but was not the sole proximate cause thereof. The remainder of the issues had to do with the amount of damages.

Based upon this jury verdict the trial court originally rendered judgment in favor of the passenger McCleery against the defendant Texas & Pacific Railway Company in the sum of $68,436.35. The judgment denied Hardgrave any recovery against any of the defendants . Thereafter the trial court withdrew the original judgment and sustained defendants' motion to disregard the jury's answers to Special Issues 15, 16 and 17. Judgment was therefore finally entered denying any relief to either Hardgrave or McCleery against any of the defendants. Both plaintiffs, and the intervenor, appeal.

Appellants predicate their appeal primarily upon the first two points of error wherein it is contended that the judgment of the trial court should be reversed and rendered in favor of appellant McCleery because the trial court was not authorized by law to disregard Special Issues 15, 16 and 17 since there was legally competent evidence to support those issues and the answers thereto. The authority of a trial judge to disregard particular special issue findings of a jury stems from Rule 301, Texas Rules of Civil Procedure. While this rule expressly provides that the court may, upon proper motion, disregard the answers to certain special issues and render judgment for the movant on the remaining portion of the verdict, the test as to whether such answers should be disregarded is whether there is any evidence to support the answers. The reviewing court must determine that there was 'no evidence' of probative force on which the jury could have made its findings. Shelton v. Ector, Tex.Civ.App., 364 S.W.2d 425; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Shelton v. Belknap, 155 Tex. 37, 282 S .W.2d 682; Davidson v. Methodist Hospital of Dallas, Civ.App., 348 S .W.2d 400. In determining the 'no evidence' point we must view and interpret the evidence in the record in its most favorable light to the plaintiff and to the verdict rendered by the jury. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561; Shelton v. Ector, Tex.Civ.App., 364 S.W.2d 425; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

Therefore, the principal question presented by this appeal is whether the record contains any evidence of probative force to support the jury's findings in response to Special Issues Nos. 15, 16 and 17 relating to the speed of the train. Appellees, both in their brief and in oral argument before this court, concede that there is ample evidence in the record that the Texas & Pacific train was traveling at a greater rate of speed than 12 miles per hour in violation of the city ordinance of the City of Dallas and that such conduct was negligence. However, they contend that there is no evidence in the record to support the jury's findings to Special Issue No. 17 to the effect that such negligence was a proximate cause of the collision. Having narrowed the question to that of speed being the proximate cause of the collision it is essential that we carefully review all of the record relating to this point. This we have done in the light of the well established law that the judgment of the trial court must be reversed if there is in this record before us evidence of probative value which, with the reasonable inferences therefrom, will support the jury's findings of proximate cause. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359. Moreover, as was stated by the Supreme Court in the Biggers v. Continental Bus System case, supra, we must approach a determination of the question in the light of the announced rule of the Supreme Court that appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts--the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action. Liberty Film Lines, Inc., v. Porter, 136 Tex. 49, 146 S.W.2d 982.

Appellees defend the trial court's action in holding, in effect, that the speed of the train could not be a proximate cause of the collision as a matter of law upon the proposition that the crossing was already occupied by the train at the time Hardgrave drove the truck into the crossing. Appellants argue that this was not a situation of an 'obstructed crossing' but was a case of an approaching train so that the jury's answer concerning the speed of the train being a proximate cause of the collision was justified by the evidence. In view of these conflicting positions we deem it necessary and desirable to set forth the following excerpts from the record which, in our opinion, settle the issue.

There were only two eyewitnesses to the collision, Hardgrave and McCleery. Hardgrave was driving the truck, without a trailer, known as a 'bob-tail' truck...