Missouri, K. & T. R. Co. of Texas v. McKinney

• Decision Date: 01 January 1941
• Docket Number: No. 1849-7595.,1849-7595.
• Citation: Missouri, K. & T. R. Co. of Texas v. McKinney, 145 S.W.2d 1081, 136 Tex. 75 (Tex. 1941)
• Parties: MISSOURI, K. & T. R. CO. OF TEXAS et al. v. McKINNEY et al.
• Court: Texas Supreme Court

145 S.W.2d 1081

MISSOURI, K. & T. R. CO. OF TEXAS et al. v. McKINNEY et al.

No. 1849-7595.

Commission of Appeals of Texas, Section B.

January 1, 1941.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Mrs. Mary Lola McKinney and two children for the wrongful death of their husband and father, J. N. McKinney, against the Missouri, Kansas & Texas Railroad Company of Texas and another. Judgment for plaintiffs was affirmed by the Court of Civil Appeals, 126 S.W.2d 789, and the named defendant brings error.

Affirmed.

Greenwood, Moody & Robertson and Dan Moody, all of Austin, Charles C. Huff, of Dallas, and Naman, Howell & Boswell, of Waco, for plaintiffs in error.

Conway & Scharff, of Waco, for defendants in error McKinney and others.

Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, and Sam Darden, of Waco, for defendant in error Jackson-Strickland Transportation Co., Inc.

TAYLOR, Commissioner.

This suit arose out of a collision on state highway No. 2 (Dallas-Waco highway) between a train and a truck. The scene of the accident was about five miles north of Waco where the Texas-Central branch of the Missouri, Kansas & Texas Railroad Company of Texas crosses the highway. The highway runs north and south. It is a hundred feet in width, the central paved portion being twenty feet wide and the unpaved portions on the sides being each forty feet wide. On the occasion of the accident J. N. McKinney, a car inspector for the railroad company, was riding on the south side of the tank car. The train, which consisted of an engine and tank car, was proceeding across the highway from the east, moving directly westward. The truck was approaching the crossing from the north on the paved portion of the highway. The collision occurred when the train was partially across the highway. The engine had cleared the eastern unpaved portion and the central paved portion, but the tank car had not cleared the paved portion when the truck collided with it. The truck struck the car on its north side about ten feet back from the west end, overturning the tank and its attachments onto McKinney in such manner as to crush him beneath the wreckage.

Mrs. Lola McKinney, the surviving widow, brought this suit for herself and two minor children against Jackson-Strickland Transportation Company, Inc., owner and operator of the truck, and against the railroad company, to recover damages on account of McKinney's death. Upon a jury verdict the trial court entered a joint and several prorated judgment for plaintiffs, and denied the railroad company's motion for judgment non obstante veredicto. Each defendant was granted judgment over against the other for contribution. Both defendants appealed, the railroad company seeking primarily to have the trial court's judgment reversed and rendered in its favor, and in the alternative to have the judgment reversed and remanded; the transportation company seeking primarily to have the judgment reversed and remanded, and in the alternative to have the relief sought by the railroad company by way of a rendition in its favor, denied, and to have the transportation company's judgment for contribution against the railroad company affirmed.

The Court of Civil Appeals affirmed without modification the trial court's judgment. 126 S.W.2d 789. The transportation company did not seek a review by writ of error to this court. The writ was granted upon the railroad company's application.

The record is too voluminous to state more than is essential to an understanding of the basic questions presented. None of the pleadings will be stated since no contention is made here as to their sufficiency for present purposes. It was agreed between plaintiffs and the railroad company that at the time of McKinney's death both the company and the train on which he was working and the employes thereon were engaged in intrastate commerce. Two hundred thirty-four special issues were submitted in the charge and sixty-seven others appear in the transcript as having been specially requested by defendants and denied submission by the trial court. The refusal to submit the latter and the findings made in response to the former will be referred to only insofar as they relate to the questions involved.

Sufficient facts have been stated to give a bird's-eye view of the accident, its setting and the manner of its occurrence. A more comprehensive picture will be presented by a recital of further undisputed facts in order to make more apparent the decisive questions presented.

The Texas Electric transfer tracks are located a short distance west of the highway at the point of the crossing. The purpose of the train movement at the time of the accident was to deliver the empty tank car on which McKinney was riding to the Texas Electric and to there pick up some other cars. It was about 6:40 on a July morning. It had rained some during the early morning hours and the highway was wet. The train, a switching train moving westward from the Bell Mead yards in east Waco toward the transfer tracks on the other side, came to a stop when the front end of the engine reached the eastern edge of the unpaved portion of the highway. The highway is straight from its intersection with the railroad to the crest of a hill to the north about a mile distant. The road is level for about three-fourths of this distance and slopes gradually upward for the remaining one-fourth. Operators of vehicles upon the highway, when visibility is normal, can see a train at the crossing all the way from the crest of the hill to the crossing, and persons at the crossing can see a truck all the way to the crest of the hill, as well as from the point where the engine stopped at the east edge of the highway. As the train started up from its stopped position to move across the highway the engineer was in the cab on the right side of the engine (the side from which the truck approached) and three railroad employes were stationed on the footboard on the front end of the engine and one on the rear of the engine. Mr. Moody, the engine foreman in charge of the train, was on the right end of the footboard (on the side from which the truck approached), a switchman was standing in the center of the footboard to his left and to the left of the switchman another switchman was standing on the south end of the footboard. The employe on the rear of the engine was a switchman also and was on the left or south side. When the train started up upon the order of Mr. Moody from its stopped position the truck appears to have been at least 800 feet north of the crossing. The truck which was approaching carried a trailer without braking power other than that afforded by the truck brakes, the trailer brakes not being "hooked up." The freight bill discloses that the load on the trailer was 10,213 pounds.

At this point the details concerning the accident will be stated from the viewpoint of W. S. Burge, the driver of the truck, a witness for the transportation company. He was coming down the highway. "I was around 120 feet from the crossing" he said, when he saw the engine entering the highway. He "jammed on" his brakes and "slid into the tank car." It was his first trip over the highway. The trailer was carrying a load of steel army lockers. It was not raining at the time of the accident but was cloudy and somewhat misty and foggy. He testified he could not see more than 200 feet as he came up to the crossing and was driving "around 20 or 25 miles an hour." Detailing further the position of the train with respect to the paved portion of the highway, when he first saw the train, the witness said: "The front end of the engine was just entering the concrete slab * * *. I would judge it was going between 20 and 25 miles an hour." He states that he "jammed on" his brakes (mechanical brakes) but that a loaded truck could not be stopped as quickly on a wet highway as on a dry one; and further that when he applied his brakes the wheels both on the front and rear of the truck slid; that he pulled to the west and at the time of the impact the front end of his truck was facing the west; that when he turned his truck to the left "it slid to the left, jack-knifed, letting the front end of the trailer slide right into the front end of the car." The trailer struck "the tank car head on."

On cross-examination the witness stated that at the time of the impact he had reduced his speed from the rate at which he was going when he saw the train to 12 or 15 miles an hour; that when he "slapped on" his brakes the truck and trailer slid a distance of about a hundred feet; that the force of the impact tore the "truck tractor practically all to pieces" and the "trailer all to pieces"; that "it scattered that 10,000 pounds of steel all over the road."

The jury found the transportation company negligent with respect to the following matters: In operating the truck at an excessive rate of speed; in operating it at a speed in excess of 40 miles an hour; in the failure of the driver of the truck to keep a proper lookout; in his failure to listen for approaching trains as he neared the crossing, and in failing to observe it in time to avoid the collision; in failing to heed the warning signals on the highway warning traffic of the location of the crossing; in failing to heed the warnings of the train's approach to the crossing sounded by the operators of the train; in operating the truck and trailer with a load of more than 7,000 pounds; in operating them with a load of excessive weight; for the failure of the driver to have the truck and trailer under proper control as he approached the crossing; and for his failure to yield the use of the crossing to the train.

The jury found also that each of the foregoing acts of negligence on the part of the transportation company was a proximate cause of the collision.

The jury found other acts of negligence on the part of the transportation company but they...