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

• Decision Date: 23 May 1956
• Docket Number: No. A-5348,MISSOURI-KANSAS-TEXAS,A-5348
• Citation: 291 S.W.2d 931,156 Tex. 69
• Parties: RAILROAD COMPANY of Texas, Petitioner, v. Ruth Adele McFERRIN et al., Respondents.
• Court: Texas Supreme Court

Page 931

291 S.W.2d 931

156 Tex. 69

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY of Texas, Petitioner, v. Ruth Adele McFERRIN et al., Respondents.

No. A-5348.

Supreme Court of Texas.

May 23, 1956.

Rehearing Denied July 25, 1956.

Wayne R. Howell, St. Louis, Mo., G. H. Penland, Dallas, Naman, Howell & Boswell, Waco, for petitioner.

Saulsbury, Skelton, Everton, Bowmer & Courtney, Temple, for respondents.

CALVERT, Justice.

This is a suit for damages for wrongful death brought against the petitioner Railroad by respondent, Ruth Adele McFerrin, for herself and as next friend for the minor children of herself and her deceased husband, R. T. McFerrin, who was killed in a crossing accident.

A jury trial on special issues resulted in a verdict in all respects favorable to respondent. Judgment for respondent was entered on the verdict. The Court of Civil Appeals has affirmed. 279 S.W.2d 410.

Under petitioner's first point of error it is argued that its motion for an instructed verdict should have been granted because the deceased was violating Article 6701d, Sec. 86(d), Vernon's Annotated Texas Civil Statutes, at the time and place in question, and that this conduct on the part of the deceased was contributory negligence as a matter of law, which negligence, as a matter of law, was a proximate cause of the collision. The pertinent provisions of Article 6701d read as follows:

'Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:

'(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.'

The point of error calls for an analysis of the statute which, in turn, poses many difficult problems. We note some of them in their logical order, as follows:

1. What duties are imposed by the statute?

2. Are the duties absolute or conditional?

3. If conditional, what are the conditions?

4. By what test shall the courts determine whether in a given case a train was 'plainly visible' and 'in hazardous proximity' to a crossing?

5. Does the evidence in the particular case establish conclusively the existence of the conditions giving rise to a duty to stop?

6. Does the evidence in the particular case establish conclusively a breach of the duty to stop?

7. Does breach of the duty to stop constitute negligence as a matter of law under the facts of the particular case?

In this opinion we will have occasion to discuss the first six questions listed, but because of the conclusion we reach in answering the sixth question, will have no occasion to consider or discuss the seventh.

This Court has not had occasion to write in any case in which it was necessary to consider a defense to liability based upon a violation of the statute. Many of the Courts of Civil Appeals have. See Lackey v. Gulf, C. & S. F. Ry. Co., 225 S.W.2d 630, no writ history, by the Austin Court; Lewis v. Thompson, 244 S.W.2d 286, writ refused, N. R. E., by the Austin Court; Texas & N. O. R. Co. v. Stewart, 248 S.W.2d 177, writ refused, N. R. E., by the Waco Court; Zamora v. Thompson, 250 S.W.2d 626, writ refused, by the San Antonio Court; Larson v. Missouri-Kansas-Texas R. Co., 254 S.W.2d 215, writ refused, N. R. E., by the Austin Court; Panhandle & Santa Fe Ry. Co. v. Karr, 257 S.W.2d 486, affirmed 153 Tex. 25, 262 S.W.2d 925, by the Amarillo Court; Gulf, C. & S. F. R. Co. v. Pratt, 262 S.W.2d 775, writ refused, N. R. E., by the San Antonio Court; Peters v. Chicago, R. I. & P. R. Co., 257 S.W.2d 860, writ refused, N. R. E., by the Amarillo Court; Fort Worth & D. Ry. Co. v. Barlow, 263 S.W.2d 278, writ refused, N. R. E., by the Forth Worth Court; Texas Mexican R. Co. v. Bunn, 264 S.W.2d 518, writ refused, N. R. E., by the San Antonio Court; Texas & P. R. Co. v. Midkiff, 275 S.W.2d 841, application dismissed by agreement, by the Eastland Court; Texas & Pac. Ry. Co. v. Hasting, 282 S.W.2d 758, writ refused, N. R. E., by the El Paso Court; Bollinger v. Missouri-Kansas-Texas R. Co., 285 S.W.2d 300, writ refused, N. R. E., by the Waco Court. But in none of the cases listed did the court writing the opinion have occasion to make a searching analysis of the statute. Our research indicates that three other states-New Mexico, Utah and Indiana-have statutes which in all material respects are the same as our Article 6701d, Sec. 86, but only in Indiana has the statute been considered by the courts. See Dommer v. Pennsylvania R. Co., 7 Cir., 156 F.2d 716; Pearson v. Baltimore & O. R. Co., 7 Cir., 200 F.2d 569. Basing its holding upon the decision of the Supreme Court of Indiana in construing an analogous statute in Heiny v. Pennsylvania R. Co., 221 Ind. 367, 47 N.E.2d 145, the United States Court of Appeals for the 7th Circuit held in the Dommer and Pearson cases, despite the statute, that the common law standard of the reasonably prudent man would be used in determining whether the conduct of the motorist was negligent.

As we analyze the statute it imposes two duties on a motorist approaching a grade crossing: (1) a duty to stop the vehicle within fifty but not less than fifteen feet from the nearest rail, and (2) a duty on one having thus stopped not to proceed until he can do so safely. The two duties cannot both be violated on the same occasion. The duty not to proceed comes into existence only if the duty to stop has been obeyed. The statute thus furnishes to a railroad-defendant two independent and alternative grounds of defense based on a violation by a motorist-plaintiff of the duties thereby imposed, and a defendant relying on a violation of the statute as a defense to liability should plead specifically which duty was violated by the plaintiff, or should plead violation of both duties in the alternative.

Further analyzing the statute, it appears obvious that the duties imposed on the motorist are not absolute but are conditional. Neither duty comes into existence unless and until these three conditions exist: (1) A train must be 'approaching' the crossing; (2) the approaching train must be 'plainly visible', and (3) the train must be 'in hazardous proximity' to the crossing. Before either duty can be said to have been absolute in a particular case so as to form the basis of an instructed verdict all three conditions must be conclusively established by the evidence.

We are next confronted with the problem of deciding what test is to be used in determining whether, in a given case, an approaching train was 'plainly visible' and 'in hazardous proximity' to a crossing so as to give rise to the statutory duty to stop.

At the outset of this discussion it may be said that it is the position of petitioner that the fact of a collision establishes, conclusively, that the train was 'in hazardous proximity' to the crossing and that that question may be examined into no further. In other words, it is the contention of petitioner, in effect, that the quoted provisions of Article 6701d operate as a rule of evidence and foreclose against the motorist the question of 'hazardous proximity' in all crossing cases by mere proof of the happening of the collision. We apprehend that the statute was not intended to and does not lay down a rule of evidence; it prescribes rules of conduct and defines crimes. For penalties, see Article 6701d, Sec. 143. A simple example will serve to illustrate that the contention of petitioner is unsound. If a motorist traveling at a speed of 30 miles per hour, or 44 feet per second, reached the statutory stopping distance of 50 feet at a time when an approaching train, then becoming plainly visible and traveling at 60 miles per hour, or 88 feet per second, was a quarter of a mile (1,320 feet) from the crossing, the motorist, by continuing his rate of speed, would normally be across the track more than 13 seconds before the train reached the crossing. It is hardly likely that any court would say, as a matter of law, that in failing to stop the motorist had violated the statute or the duty of care imposed on him by the statute. Yet if the motorist's automobile should stall as he attempted to cross the track and he was hit by the train, petitioner's theory would compel the court to deny a recovery of damages on the ground that the collision established, as a matter of law, that the train was in 'hazardous proximity' to the crossing. We reject the theory and hold that whether a train was 'in hazardous proximity' to a crossing, so as to impose on an approaching motorist a duty to stop, must be determined by the court from the evidence of the facts and circumstances existing at the time the motorist was compelled to make a decision, and should not be determined by or from the happening of subsequent events. We would be loath, indeed, to hold that the legislature, by the enactment of Article 6701d, Sec. 86(d), laid down a rule of evidence by which in this situation it has exacted of the motorist perfect foresight of all eventualities. While we reject petitioner's theory of the law, we recognize that in a great many cases involving crossing collisions, and perhaps even in a majority of such cases, the evidence will undoubtedly show conclusively that the train was 'in hazardous proximity' to the crossing as the motorist approached it, and the critical issue, therefore, will usually be as to when, if at all, the train became 'plainly visible'.

If there is a duty on the motorist to act it arises as he approaches and comes within the statutory stopping area. It is at that time that he must determine whether he is under a statutory duty to stop. As heretofore pointed out, the existence of the duty is not absolute but is conditioned on the existence at that time of a certain state of facts. It seems to us that in determining whether the fact situation is such as to call the statutory duty into existence, we...