Missouri-Kansas-Texas R. Co. v. Neuhoff Bros.

• Citation: 297 S.W.2d 316
• Decision Date: 19 October 1956
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 15152,15152
• Parties: R. CO. of Texas, Appellant, v. NEUHOFF BROS., Packers, Appellee.
• Court: Texas Court of Appeals

Page 316

297 S.W.2d 316

MISSOURI-KANSAS-TEXAS R. CO. of Texas, Appellant, v. NEUHOFF BROS., Packers, Appellee.

No. 15152.

Court of Civil Appeals of Texas, Dallas.

Oct. 19, 1956.

Rehearing Denied Jan. 11, 1957.

O. O. Touchstone and G. H. Penland, Dallas, for appellant.

Turner, Rodgers, Winn, Scurlock & Terry and James R. Rodgers, Dallas, for appellee.

DIXON, Chief Justice.

This is an appeal from an order granting a temporary injunction to appellee Neuhoff Bros., Packers, restraining appellant Missouri-Kansas-Texas Railroad Company of Texas, 'their agents, officers, servants, employees and receivers from willfully blocking or obstructing Alamo Street for more than five minutes at any one time by permitting their trains or equipment to stand on or across such crossing * * *.'

In its original petition appellee alleges a violation by appellant of two ordinances of the City of Dallas, Texas, both of which ordinances provide that railroads shall not block any street longer than three minutes. In the alternative appellee pleads a violation by appellant of Art. 787 of the Penal Code of the State of Texas prohibiting the willful blocking of railroad crossings for longer than five minutes at one time. The order appealed from expressly prohibits appellant from willfully blocking Alamo Street for longer than five minutes, thus restraining a violation of Art. 787 of the Penal Code. The order does not undertake to restrain a violation of the two City ordinances. Therefore, in this opinion we shall not discuss the effect or validity of the City ordinances.

Article 787 of the Penal Code is as follows: 'Any officer, agent, servant or receiver of any railway corporation who wilfully obstructs for more than five minutes at any one time any street, railway crossing or public highway by permitting their train to stand on or across such crossing, shall be fined not less than five nor more than one hundred dollars.'

At two hearings, one held September 29, 1955 and the other December 15, 1955, the court heard testimony from eleven witnesses and admitted into evidence twelve exhibits. On February 3, 1956 the court granted the temporary injunction.

In its order the court made findings of fact extending through fifteen paragraphs. Included among the findings are the following:

'(a) The blocking by standing trains and equipment of defendant has repeatedly occurred and has extended in time over the five-minute period allowed by the laws of the State of Texas, in Article 787, Penal Statutes, and Dallas City Ordinance No. 4775, and amendment No. 85,14s 3. (b) Alamo Street, across the intersection with defendant's tracks, is the sole readily available access road to plaintiff's property where a packing plant is owned and operated by plaintiff. (c) Alamo Street terminates for all practical purposes at or near plaintiff's plant. (d) Plaintiff's property abuts on Alamo Street and plaintiff is irreparably damaged by defendant's repeated acts of blocking the streets for periods of time greater than five minutes. (f) Defendant is equipped to comply with the law and ordinance which prevent blockage of a street by a standing train for periods greater than five minutes. (g) That if defendant properly used its available equipment, no violation of the law would result. (j) Defendant also could comply with the law if it so chose. (k) The repeated blocking of Alamo Street for periods in excess of five minutes has created hazardous conditions in the operation of plaintiff's business. (l) Shipments of goods into and out of the plant have repeatedly been blocked by defendant's violation of the law. (n) For an extended period of time, plaintiff has been unsuccessful in getting relief from defendant's recurring illegal acts through private negotiations with officials of defendant. (o) Court finds as a matter of law that a multiplicity of suits would result if plaintiff sought relief from defendant's recurring illegal acts in an action at law for damages.'

Many of the basic facts are undisputed. Appellee's packing plant has been at its present location since about the year 1900, though ownership of it was not acquired by appellee until the year 1932. Alamo Street begins at McKinney Avenue and runs in a northwesterly direction. It crosses Cedar Springs Avenue, then several blocks farther on passes the railroad tracks just before reaching appellee's packing plant. It formerly went on past the packing plant and connected with Oak Lawn Avenue, but since the construction of an overpass nearby and consequent changes in the layout of thoroughfares in the neighborhood, Alamo Street has come to a dead end a short distance beyond the packing plant. From McKinney Avenue on past the packing plant, it is a black-top-paved street. It has curbs beyond Cedar Springs Avenue as far as Burris Mills, a short distance before it crosses the railroad tracks.

Appellee's plant abuts Alamo Street not far beyond the railroad tracks. The street affords the only readily accessible way to and from the plant. Appellee operates 54 trucks and has about 550 employees. Its trucks and many of its employees and those of its customers who call at the packing plant, use Alamo Street for ingress and egress.

The evidence is voluminous and as to certain controversial fact findings made by the trial court, it is not undisputed. But there is evidence in the record to support each of the findings. For example, there is ample evidence that the railroad's trains have many times over a period of years blocked the crossing for periods varying from more than five minutes to more than thirty minutes. Appellee has protested on numbers of occasions, and conferences and negotiations have taken place. Though the record is not without evidence that some efforts have been made on occasions by the railroad officials to remedy the situation, the evidence is overwhelming that repeated blockings of the crossing have continued. There is evidence also that the railroad has equipment available which, if used, would enable it to break its trains so as to avoid blocking the way. At least one other railroad uses the same kind of equipment-air lines running under the crossing, which can be connected with both parts of a separated train-and successfully avoids blocking street crossings. In the interest of conserving space, we shall not set out a detailed elaboration of the evidence.

Appellant's points on appeal Nos. 1 and 2 assert that the proper and adequate remedy for violations of Art. 787 of the Penal Code is criminal prosecution, hence the issuance of the temporary injunction was error. It is true that in the absence of statutory authority an injunction will not be granted when its only purpose and effect is to restrain the commission of a crime. It is held that in such instances a criminal prosecution affords an adequate remedy. But the rule is otherwise when private property is damaged. Then, in the face of repeated and continued violations, an injunction will lie in order to protect the applicant's property; and the property...