May v. Missouri-Kansas-Texas R. Co.

• Citation: 583 S.W.2d 694
• Decision Date: 21 June 1979
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 6064,6064
• Parties: Craig B. MAY, Appellant, v.RAILROAD COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 694

583 S.W.2d 694

Craig B. MAY, Appellant, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellee.

No. 6064.

Court of Civil Appeals of Texas, Waco.

June 21, 1979.

Rehearing Denied July 5, 1979.

James R. Warncke, San Antonio, for appellant.

Louis S. Muldrow and Larry O. Brady, Naman, Howell, Smith, Lee & Muldrow, P. C., Waco, for appellee.

OPINION

JAMES, Justice.

This is a railroad crossing accident case between Plaintiff's motor vehicle and a flatcar of Defendant's freight train parked on the crossing. After jury verdict a judgment was entered that Plaintiff take nothing, from which Plaintiff appeals. We reverse and remand for a new trial on the merits.

Plaintiff-Appellant Craig B. May brought this suit against Defendant-Appellee Missouri-Kansas-Texas Railroad Company for personal injuries and damages arising out of the auto-train collision hereinabove mentioned. At or about 1:40 AM in the early morning hours of June 13, 1976, Defendant's northbound freight train, consisting of 39 cars, stopped at a red block signal in or near Temple, Texas. Defendant's train stopped at the block signal (where the M-K-T tracks cross the Santa Fe Ry. Co. tracks) and remained stopped until the operatives would receive express permission to proceed across the Santa Fe tracks. At the time of the accident in question, Defendant's engine was about 2000 feet north of the Taylor Road crossing, said crossing being the place where this accident occurred. At said time about 10 cars of Defendant's train were standing south of the crossing, with an unloaded flatcar sitting astraddle of the Taylor Road crossing. The evidence is conflicting concerning the length of time the freight train had been blocking the crossing before the accident occurred, as more particularly hereinafter discussed; however, be that as it may, immediately prior to the accident, Plaintiff May was driving his motor vehicle in an easterly direction in the 600 block of Taylor Road and thereupon ran into the Defendant's flatcar parked upon said crossing. There were no street lights, automatic signal devices, flares, flagmen or any other warning devices located at this crossing, except an unlighted crossbuck sign evidencing a railroad crossing. In other words, the Taylor Road crossing was shown to be an uncontrolled grade crossing. Taylor Road slopes gradually downward on either side respectively for a considerable distance as this crossing is approached, with this difference: as one looks east toward the crossing, the roadway as stated slopes gradually downward for a considerable distance until it gets to a point 64 feet west of the railroad tracks, at which point the road starts an upward slope to the crossing, so that virtually at no point would an approaching automobile headed east as was Plaintiff May, have its headlights beamed perpendicular to a train occupying the crossing. On the other hand, as one looks west toward the crossing, the roadway slopes gradually downward for a considerable distance all the way to the crossing. As one looked east on Taylor Road toward and beyond the crossing, as was Plaintiff May on this occasion, the background was dark because such view is into a rural area; whereas, as one looked west on Taylor Road toward and beyond the crossing, the background lights from the City of Temple existed. From the record it appears that the Taylor Road crossing is on the eastern outskirts of the City of Temple, Texas.

Trial was had to a jury which found, or failed to find as hereinafter indicated, in response to the following numbered special issues, as follows:

(1) The jury failed to find that the railroad crossing in question was extra-hazardous as a nighttime crossing.

(2) No answer was made, nor was an answer required to Special Issue No. 2, wherein the jury was asked if the Defendant Railroad Co. knew or through the exercise of ordinary care should have known that the crossing was extra-hazardous as a nighttime crossing.

(3) The jury failed to find that on the occasion in question the Defendant was negligent in failing to use a flare, lantern, light, automatic signal light, or any other means to warn approaching motorists of the presence of the flatcar in question upon the crossing.

(4) Special Issue No. 4 was a proximate cause issue conditioned upon an affirmative finding in answer to Special Issue No. 3, to which (No. 4) no answer was given or required.

(5) The jury failed to find that the Defendant's failure to use any means to warn approaching motorists of the presence of the flatcar on the crossing in question was gross negligence.

(6) The jury found that Plaintiff May failed to keep a proper lookout, which was, in answer to Special Issue No. 7, a proximate cause of the collision in question;

(8) That Plaintiff May failed to make application of his brakes in a manner that a reasonable prudent person would have made, which was (No. 9) a proximate cause of the collision in question;

(10) That Plaintiff May drove his vehicle at a greater rate of speed than a reasonable prudent person would have driven, which was (No. 11) a proximate cause of the collision;

(12) That Plaintiff May was driving his vehicle while under the influence of an intoxicating beverage, which (No. 13) was negligence, and (No. 14) a proximate cause of the collision.

(15) The jury further found that the Defendant's flatcar was plainly visible before Plaintiff May reached a point 15 feet from the nearest rail of the track on which the train was situated; that (No. 16) May failed to stop his vehicle within 50 feet, but not less than 15 feet, from the nearest rail of the track on which Defendant's train was situated; that (No. 17) such failure was negligence, and (No. 18) a proximate cause of the collision in question.

(19) The jury did not reach the comparative negligence issue.

(20) The jury found Plaintiff May's damages to be $13,000.00.

(21) The jury did not answer the exemplary damage issue, and no answer was necessary as it was submitted conditionally upon an affirmative answer to Special Issue No. 5 hereinabove.

Pursuant to and in harmony with the jury verdict, the trial court entered judgment that Plaintiff May take nothing, from which he appeals.

Plaintiff-Appellant asserts twenty points of error. We will discuss only those points of error which we believe are reversible in nature and which in our opinion require a remand for retrial on the merits, plus additional points of error which we hope may be helpful in a retrial of the case.

Plaintiff-Appellant complains that the trial court excluded evidence concerning six accidents that had occurred at this same crossing, four of which occurred prior to May's accident, and two of which occurred subsequent to May's collision.

It seems to be well-settled law that evidence of prior accidents or near accidents is proper in determining whether the crossing is unusually dangerous or extra-hazardous as a nighttime crossing at the time of the accident, and in determining whether the Railroad Company knew, or in the exercise of ordinary care should have known, of the alleged unusually dangerous or hazardous conditions surrounding the crossing at the time of the accident. Missouri, K. & T. RR. Co. v. Long (Austin, Tex.Civ.App.1929) 23 S.W.2d 401, 403, writ refused. For testimony of prior accidents to be made admissible, our Supreme Court has placed the burden on the plaintiff to "show that the earlier accidents occurred under reasonably similar but not necessarily identical circumstances." Missouri Pacific Railroad Co. v. Cooper (Tex.1978) 563 S.W.2d 233 at page 236. Also see Karr v. Panhandle & Santa Fe Ry. Co. (1953) 153 Tex. 25, 262 S.W.2d 925, 928, 929; Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin (Austin, Tex.Civ.App.1955) 279 S.W.2d 410, 418, reversed on other grounds by our Supreme Court in 156 Tex. 69, 291 S.W.2d 931; Reynolds & Huff v. White (Tyler, Tex.Civ.App.1964) 378 S.W.2d 923, 930, 931, no writ; Texas & N. O. R. Co. v. Davis (Beaumont, Tex.Civ.App.1948) 210 S.W.2d 195, 205, 206, NRE; Missouri Pacific RR. Co. v. Thomas (Beaumont, Tex.Civ.App.1979) 579 S.W.2d 46, application for writ of error filed in Supreme Court on May 8, 1979, presently pending.

In the case at bar we believe the plaintiff laid the proper predicate by his offer of evidence to show the reasonable similarity of the six accidents to the instant accident, to the end that the evidence concerning such other accidents were rendered admissible and should have been admitted into evidence. The Plaintiff-Appellant's basic contention is that the crossing in question was extra-hazardous at night, because said crossing was in a depression in the land wherein the approaches from each side by way of Taylor Road descended down to the crossing as hereinabove described, so that approaching motorists' headlights from either east or west would not pick up a railway car on the crossing in time to safely avoid an accident. Therefore, the circumstances that would render the other tendered accidents reasonably similar to that incurred by Plaintiff May would be that such other accidents occurred at night at the same crossing, since all approaching motorists, from either direction, would be approaching the crossing on a descending slope.

The first prior accident offered by Plaintiff-Appellant was that by Louis Peoples, a taxi driver, who testified that he had an accident at this same crossing in August 1973. Peoples approached the crossing from the east travelling in a westerly direction, about 1:30 AM to 2:00 AM at night. The train was sitting still, and Peoples hit a gondola car which was sitting on the crossing. Peoples had his headlights on bright, and was not able to see the train in time to avoid colliding with it. He said he thought he was 15 or 20 yards from the train when he first saw the train before he hit it, and that he could not see any of the city lights beyond the crossing. He was travelling 30 to 35 miles per hour...