Klekar v. Southern Pacific Transp. Co.

• Decision Date: 07 April 1994
• Docket Number: No. 01-90-00909-CV,01-90-00909-CV
• Citation: 874 S.W.2d 818
• Parties: John KLEKAR, Individually and as Next Friend of Tina Klekar, Deceased and Amber Klekar, Deceased and Doris Wilkins and James L. Rix, Appellants, v. SOUTHERN PACIFIC TRANSPORTATION CO. and Asplundh Railroad Division, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 818

874 S.W.2d 818

John KLEKAR, Individually and as Next Friend of Tina Klekar,

Deceased and Amber Klekar, Deceased and Doris

Wilkins and James L. Rix, Appellants, v. SOUTHERN PACIFIC TRANSPORTATION CO. and Asplundh Railroad

Division, Appellees.

No. 01-90-00909-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

April 7, 1994.

Stanley J. Krist, Houston, for Klekar.

Joe B. Stephens, R. Gary Stephens and R. Andrew Black, Houston, for James Rix and Doris Marilyn Wilkins.

Mainess Gibson and Deborah A. Newman, Houston, for Southern Pacific Transp.

James E. Mcnerney, Donald W. Towe and Michaela L. Clarke, Houston, for Asplundh R.R. Div.

Before DUGGAN, WILSON and MIRABAL, JJ.

OPINION

WILSON, Justice.

On September 11, 1987, Tina Klekar and her 17-month old daughter, Amber, were tragically killed in a car-train collision at the Engle crossing near Schulenburg, Texas. John Klekar, the husband of Tina and father of Amber, with Doris Wilkins and James L. Rix, parents and grandparents, jointly brought this lawsuit against Southern Pacific Transportation Company (Southern Pacific), and Asplundh Railroad Division (collectively, the appellees). John Klekar, Wilkins, and Rix (collectively, the appellants), claimed in the trial court that the appellees' negligence caused the wrongful death of Tina and Amber.

The appellees denied any negligence on their part and affirmatively asserted Tina Klekar's negligence was the cause of the accident. The appellees also pled John Klekar had signed a release and had accepted $25,000 in full settlement of any claims. John Klekar specifically alleged he signed the release of claim in favor of the appellees ¹ because of the fraud of a Southern Pacific employee.

Following a trial of over two weeks, a jury found only Tina negligent, and failed to find Southern Pacific and Asplundh Railroad Division (Asplundh) negligent to any degree. Southern Pacific operated the train and Asplundh was responsible for clearing vegetation at the crossing. The jury also failed to find the crossing itself was "extra hazardous." After post-trial proceedings, the court rendered a take nothing judgment in favor of appellees.

The appellants raise seven points of error. However, they primarily complain their case was prejudiced by the testimony of a Department of Public Safety officer who was permitted to testify before the jury as an expert, despite the appellees' failure to designate him as a witness in any capacity. We affirm.

FACTUAL BACKGROUND: CAR-TRAIN COLLISION

The railroad crossing where the accident occurred was on Fayette County Road 331 near U.S. highway 90 close to Schulenburg, Texas. Tina was traveling south on 331 at about 3:00 p.m. when she crossed the track at the same time as a Southern Pacific train passed heading west at an approximate speed of 65 miles per hour. The collision pushed the Klekar auto nearly 100 feet down the tracks, flipping it several times.

Norris Sternadel testified that at about 2:00 p.m. on the date of the accident, he left the pasture he leased where he had been checking his cattle. Sternadel traveled west down a gravel road, made a right turn, headed north on 331, and crossed the railroad tracks. To this point, Sternadel said he heard no train whistle. After he crossed the tracks and continued moving north toward U.S. highway 90, a car, driven by Tina Klekar, turned in front of him and passed beside him, heading south toward the railroad track. He estimated her speed at 10 miles per hour or less. Then he said the whistle blew. He looked back over his shoulder to see where the car was, and it had been hit. He estimated there was maybe a second between the time he heard the whistle blow and the time he heard the bang of the collision.

Sternadel stated it was necessary to get up to within 10 feet of the track before you could see a train coming. He further said that he probably had his radio on in his truck that day.

Other testimony indicated Sternadel gave a statement to a Southern Pacific claims representative, Sonia Elveston, four days after the accident, at which time he stated that he was "parked" at a stop sign on county road 331. This differs from his account at trial in which he said he was coming over the track when Tina turned off Highway 90, onto 331, and then drove beside and past him heading south toward the crossing. In his statement to Elveston and at trial, Sternadel agreed with Elveston's statement that the grass, that she had measured on the northeast side of the track to be four and one-half feet, on the average, could not have entirely blocked the view of the engine that was 14 1/2 feet high.

Eugene Pavlicek was on the other (north) side of Highway 90, on F.M. 2238, facing south and waiting at a stop sign. He saw Tina come from the west and turn south toward the track. Pavlicek testified his thoughts at that time were, "I hope she sees the train." Pavlicek stated that "at the last point," the train blew the whistle and Tina slammed on the brakes. He saw Tina raise up in the car, and then the collision occurred. In his deposition testimony, Pavlicek stated that the train blew its whistle for 30 seconds before impact. During the trial, he changed his testimony to one second. Pavlicek said he worked for plaintiff's counsel, Mr. Krist, and stated that Mr. Krist "always helps me out and everything, you know."

Joyce Patterson, a claims representative for Southern Pacific, took a recorded statement from Mrs. Angelina Schwenke who had been drinking in Chudje's Bar from before the accident until the interview at 6:15 p.m. At that time, and during her deposition, she stated that she heard the train whistle and the noise of the collision at the same time and then saw a flying object. In a hand-written statement executed May 7, 1990, and taken by Deborah A. Newman, an attorney for Southern Pacific, Schwenke said she heard the whistle 10 seconds before impact.

Jimmie Dale O'Brien, the train's engineer, testified that Tina never looked his way and looked straight ahead the whole time. Robert Wayne Seaman, the fireman, testified that, at the time of impact, Tina was looking straight ahead.

Three of the five members of the train crew, O'Brien, Seaman, and conductor Norman Robert Sutton, who were sitting in the front engine, all testified O'Brien sounded the whistle at or before the whistle board, and continued to sound the whistle through the crossing. The whistle board is located one-quarter mile before the crossing and is intended to alert the crew to begin sounding the crossing warning devices, a whistle, and a bell. In the statement O'Brien gave the Southern Pacific investigator the day of the accident, he stated the bell was an automatic one that sounds when you blow the whistle. Brakeman Eugene Lange and Joe Mesa said they could not hear the whistle because of the configuration of the engines, the noise of the air conditioner, the electronic equipment, and the fact they were at the rear of the train.

John Laughlin, a Texas Highway Department employee who visited the crossing a few days after the accident, stated that the view of the track leaving Highway 90 traveling in a southerly direction toward the crossing was unobstructed. Laughlin, currently a railroad signals consultant, and formerly a Southern Pacific employee who retired in 1984, had responsibility for the maintenance of crossings including the Enlge crossing for the last 10 or 15 years of his career at Southern Pacific. He further stated he looked at the photographs taken of the crossing at the time of the accident and performed on the ground inspections. He formed the opinion that the visibility at the time of the accident was satisfactory and a person driving a car approaching the track could have seen a train before they got on the track.

Charles R. Ruble, an accident reconstruction expert, testified that based upon a scientific analysis of the filament of the brake lights of Tina's car, she did not apply the brakes until two-and-a-half to three seconds before the collision.

FACTUAL BACKGROUND: RELEASE

Roy L. Henley, Jr. testified he was then (at the time of the trial) employed by an investigation agency owned by the brother of one of the attorneys in the firm representing the appellants. In addition, the investigation firm leased space from one of the appellants' attorneys. Henley testified that at the time of the accident, he was district claims agent for Southern Pacific. Six months after the accident, he left Southern Pacific because it offered him the choice of accepting a transfer and demotion or resigning.

Henley testified that six days after the accident, he met with John Klekar to attempt to settle the case. He testified he fabricated a story, telling Klekar he had not found anything to date the railroad had done wrong and that it was apparent Tina had been hit because she did not look in the direction of the train. He also said he lied to Klekar when he told him that a test had been performed on the brake light filaments of her car that showed she had not applied the brakes before the crash.

Henley stated that while Klekar sat there in a glazed stare, his assistant, Elveston, filled out the release and the draft. Still in the glazed stare, Klekar looked briefly, less than two minutes, at the form. He corrected the spelling of his name on the release, signed the release, and accepted the check for $25,000.

On direct examination, Klekar testified he just started to read a few words off the release, but it did not make any sense. On cross-examination, Klekar testified that in his earlier deposition, he said he did read the release. He cashed the check at the bank the next day, putting $8,000 in a CD and the rest in another account.

The release itself shows two initialled corrections of John Klekar's name, apparently done by Klekar, one toward the top of the document and one toward the bottom. Above the signature lines, in all caps and bold letters is the...