Karr v. Panhandle & Santa Fe Ry. Co.

• Decision Date: 18 November 1953
• Docket Number: No. A-4060,A-4060
• Citation: 262 S.W.2d 925,153 Tex. 25
• Parties: KARR et al. v. PANHANDLE & SANTA FE RY. CO.
• Court: Texas Supreme Court

Page 925

262 S.W.2d 925

153 Tex. 25

KARR et al. v. PANHANDLE & SANTA FE RY. CO.

No. A-4060.

Supreme Court of Texas.

Nov. 18, 1953.

Rehearing Denied Jan. 31, 1953.

L. A. Wicks, Sr., Ralls, Ratliff, Conner & Walker, Spur, for petitioners.

Lewis Jeffrey and Adkins, Folley, Adkins, McConnell & Hankins, Amarillo, W. P. Walker, Crosbyton, for respondent.

BREWSTER, Justice.

J. B. Karr, petitioner, brought this suit for himself and his wife and as next friend of his four minor children against Panhandle and Santa Fe Railway Co., respondent, to recover damages for personal injuries sustained by them and for damage to his automobile when the automobile was struck by the engine of respondent's train.

Overruling respondent's motion for an instructed verdict as well as its motion for judgment non obstante veredicto, the trial court entered judgment for petitioner on a jury verdict. The Court of Civil Appeals reversed that judgment and rendered it for respondent. 257 S.W.2d 486.

The Karrs were 'big football fans', so in the early evening of Oct. 12, 1951, they were going by automobile from near Spur to Slaton, 65 miles distant, to see a football game between Spur and Slaton. Instead of going through to Lubbock to the main highway from Lubbock to Slaton they turned south on farm-to-market road No. 400 (hereinafter called Road 400) to reach the Lubbock-Slaton highway (hereinafter called Lubbock highway) about 1 1/2 miles from Slaton. Just before it reached the Lubbock highway, Road 400 crossed respondent's right-of-way, which paralleled Lubbock highway with a common boundary between them. As he was almost upon respondent's track Karr was warned by his wife of the near approach of respondent's train from their right; whereupon he 'hit' his brakes and the automobile stopped with its front wheels nearer to the south rail than to the north rail. The engine struck the automobile, throwing Mrs. Karr out but leaving Karr and their children in the car. The impact left the body of their automobile from the windshield back virtually intact while knocking all the front loose and scattering it along the right-of-way. All the Karrs suffered some injuries but Mrs. Karr's were the most serious.

The Karrs alleged that the crossing was extra-hazardous as a nighttime crossing because near the point of intersection of the railway track with Road 400 the view of one traveling south on the road is obscured on the west in the direction of the railway line by 'houses, trees, barns, telephone poles, the embankment of said road and other improvements situated directly west' of Road 400; at the point of intersection the roadway is practically level and forms a grade crossing; the crossing is not lighted at night and the only warning maintained by the railway company is an ordinary wooden railroad crossing sign situated south of the crossing and west of Road 400 and close to some telephone poles, while the sign's cross pieces are approximately 10 feet high and situated out of range of the lights of an automobile approaching the crossing from the north, in the absence of reflectors; there is no warning sign of any description on the north side of the crossing; at night the view of a person traveling south on Road 400 toward the crossing 'is further obscured and confused by the lights of motor vehicles traveling on the Lubbock to Slaton highway to the south, east and west of said crossing and by the lights of motor vehicles approaching said crossing' from the south on Road 400; both the Lubbock highway and Road 400 are heavily traveled; that the railway company operates many trains, both day and night, over the crossing, with its passenger trains normally going over it at not less than 75 miles per hour. Then they allege that 'by reason of all of the above and foregoing facts said crossing is an extrahazardous crossing and * * * is more than ordinarily dangerous to night time travelers approaching it on farm road 400 from north to south and is so peculiarly dangerous that prudent persons traveling said farm to market road at night from the north to the south can not use the same with safety unless extraordinary means are used to protect them'; and that these facts were known to the railway company or could have been known to it in the exercise of ordinary care.

Except for Special Issue No. 1, in answer to which the jury found that the operation by the railway company of its train at 75 miles an hour over the crossing at the time in question was not negligence, the Karrs' issues were conditioned on an affirmative answer to Special Issue No. 2, in answer to which the jury found that the crossing was extra-hazardous as a nighttime crossing. So they then found that the railway company's failure to have immediately to the north of the crossing a warning sign which would be visible at night was negligence, which was a proximate cause of the collision; that the failure of the railway company to have the crossing lighted at night as a warning of the crossing's existence was negligence, and a proximate cause of the collision; that railway company's failure to have on the north of the crossing a reflector warning sign was negligence, which was a proximate cause of the collision; that the failure of railway company to have maintained immediately to the north of the crossing a warning device, visible at night, to warn the Karrs of the approach of the train was negligence, which was a proximate cause of the collision; and that the railway knew or in the exercise of ordinary care should have known, 'in time to have remedied the condition, that said crossing was an extra-hazardous crossing.'

Petitioners' first point is that the Court of Civil Appeals erred in holding that there was no evidence to support the jury's verdict that the conditions surrounding the crossing were such as to render it extra-hazardous as a nighttime crossing.

In their application they say that they 'tried this case in the trial court on the theory that the evidence established that the crossing was extra hazardous at night because the lights of the vechicles traveling the Lubbock to Slaton highway concealed the lights of a train approaching said crossing from the west, as was the train involved in this collision, until the train was in point of time almost upon the crossing and that a person approaching said crossing from the north to the south would not see a train on said track until the train was almost upon the crossing, because such a person would believe the lights of the train to be the lights of vehicles upon said Lubbock to Slaton highway, and further, that the lights of the town of Slaton, Texas, to the southeast of said crossing, would attract the attention of travelers from the north to the south on said paved road and would draw the attention of said travelers away from the direction from which the train was approaching said crossing, and also that the lights of vehicles approaching on said paved road from the south to the north would distract the attention of travelers from the north to the south on said paved road from an approaching train from the west.'

The nature of the issue thus raised has required a detailed study of all the testimony except that of a doctor, which dealt solely with the Karrs' injuries. We have ben materially aided by petitioners' statement in their brief in the Court of Civil Appeals, which (except for parenthetical references to the statement of facts) is:

'A jury issue as to the crossing being an extra hazardous night time crossing, due to both fixed and usual conditions surrounding it, was raised by ample testimony showing that the railway line traversed a much traveled paved road at an oblique angle and on a level with the paved roadway; that the appellant's passenger trains usually and customarily traveled over said crossing at the rate of at least 75 miles per hour and that there were several trains daily passing over said crossing; that there was no sign of any description north of said crossing to warn the traveling public on said road of the existence of said crossing or of the approach of appellant's trains thereto; that the appellant's cross buck sign, constructed of wood and with no lights or reflectors thereon was situated 17 feet south of the appellant's railway line and 22 feet west of the paved road, out of the range of automobile head lights; that 80 feet south of the crossing the paved road intersected the main and much traveled paved highway extending from Lubbock to Slaton, which said highway paralleled the railway line at said crossing and for a considerable distance west of said crossing; that said paved road then made a curve to the west, about the width of said road, and continued on south of the Lubbock to Slaton highway; and that the lights of vehicles traveling on said Lubbock to Slaton highway, as well as the lights of vehicles approaching said crossing from the south to the north on said paved road and the lights of the town of Slaton southeast of said crossing, distracted the attention of travelers approaching and using said crossing from the north to the south on said paved road.'

Missouri, K. & T. Ry. Co. v. Long, Tex.Civ.App., 23 S.W.2d 401, er. ref., first appeal 293 S.W. 184, Id., Tex.Com.App., 299 S.W. 854, is cited by petitioners as 'the leading case in Texas on the question of distraction and confusion created by lights and other conditions making a crossing extra-hazardous at night.'

In that case the crossing was extra-hazardous because (1) the crossing was flat and was approached by travelers going west, as Long was, on a downgrade from 700 feet back to within 200 feet of the tracks, (2) reflections from lights of the City of Temple, which burned constantly at night, were faced by persons going in the direction Long was, for about 1000 feet after one turned towards the crossing and from a hill high above the crossing, and any train that might be on it. These conditions existed before Long...