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

• Decision Date: 21 March 1984
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 13870,13870
• Citation: 670 S.W.2d 338
• Parties: RAILROAD COMPANY, Appellant, v. Guadalupe C. ALVAREZ, Appellee.
• Court: Texas Court of Appeals

Page 338

670 S.W.2d 338

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Guadalupe C. ALVAREZ, Appellee.

No. 13870.

Court of Appeals of Texas Austin.

March 21, 1984.

Rehearing Denied April 25, 1984.

Dan Moody, Jr., Graves, Dougherty, Hearon & Moody, Austin, for appellant.

Mack Kidd, Kidd, Whitehurst & Harkness, Austin, for appellee.

Before PHILLIPS, C.J., and SMITH and GAMMAGE, JJ.

EARL W. SMITH, Justice.

Missouri-Kansas-Texas Railroad Company (MKT) appeals from a judgment awarding appellee Guadalupe C. Alvarez damages for injuries sustained by him when he was struck by an MKT train at a crossing. The trial court's judgment is based upon the jury's answer to Special Issue No. 1, in which the jury found only one act of negligence by MKT. In assuming in such issues that MKT did "not timely apply its brakes," the court's charge, submitted over the objection of MKT, constituted an impermissible comment on the weight of the evidence. The judgment will be reversed and the cause remanded.

The controlling issue in this case is whether the train crew made a timely application of the brakes. Special Issue No. 1 submitted by the court was as follows:

On the occasion in question do you find from a preponderance of the evidence that the Missouri-Kansas-Texas Railroad The jury answered "No" to (a), (c) and (d), but answered "Yes" to (b), and found that such negligence was a proximate cause of the occurrence in question. MKT objected to the issue for the reason that "the wording of this issue constitutes an improper comment on the weight of the evidence by implying that the brakes were not timely applied...." MKT, in its objection, suggested that the proper wording of (b) in special issue No. 1 should be "in its application of the brakes."

Company was negligent in its (a) speed, (b) in not timely applying the brakes, (c) in its lookout or (d) in failing to sound the train whistle or horn. (emphasis added).

Under former practice, Tex.R.Civ.P.Ann. 272 (1971), the trial judge was required to frame his charges so that he did "not therein comment on the weight of the evidence." The quoted phrase was deleted from Rule 272 by the 1973 amendments to the Rules, and the last paragraph of Rule 277 was added in 1973, reading as follows:

The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court's charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers where it is properly a part of an explanatory instruction or definition.

Tex.R.Civ.P.Ann. 277 (1973). (emphasis added).

Notwithstanding the 1973 amendment to Rule 277, supra, to permit incidental comments on the weight of the evidence, the trial judge is prohibited by such rule from making direct comments, which has been proscribed before and since the amendment. Gleghorn v. City of Wichita Falls, 545 S.W.2d 446, 447 (Tex.1976); Briseno v. Martin, 561 S.W.2d 794, 796 (Tex.1977); City of Pearland v. Alexander, 483 S.W.2d 244, 248-49 (Tex.1972); Capitol Title Co. v. Mahone, 619 S.W.2d 204, 206 (Tex.Civ.App.1981, no writ); Otto Vehle & Reserve Law Officers Ass'n v. Brenner, 590 S.W.2d 147, 150 (Tex.Civ.App.1979, no writ); City of Beaumont v. Fuentez, 582 S.W.2d 221, 224 (Tex.Civ.App.1979, no writ); Cactus Drilling Co. v. Williams, 525 S.W.2d 902, 906-7 (Tex.Civ.App.1975, writ ref'd n.r.e.). See Figari, Graves, and Moss, Texas Civil Procedure, 36 Sw.L.J. 435, 459-60 (1982) and Pope and Lowerre, The State of the Special Verdict--1979, 11 St. Mary's L.J. 1, 45 (1979).

The rule is well defined in Texas Emp. Ins. Ass'n v. Percell, 594 S.W.2d 182, 184 (Tex.Civ.App.1980, writ ref'd n.r.e.), wherein the court said:

For more than a century and a quarter in Texas, the trial court has been prohibited from directly commenting on the weight of the evidence in the jury charge. 3 R. McDonald, Texas Civil Practice § 12.032.2 (1970). The prohibition currently is expressed in the Texas Rules of Civil Procedure, Rule 277, in these words: "The court shall not in its charge comment directly on the weight of the evidence ...." A prohibited comment occurs when a special issue is so worded that it indicates an opinion by the trial court as to the verity of the fact inquired about. Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 102 (Tex.Civ.App.--Amarillo 1971, writ ref'd n.r.e.).

Thus, it is error to submit to the jury a special issue which assumes the existence of disputed material facts.

Alvarez argues that the evidence is factually undisputed that MKT did not apply its brakes in a timely manner. If this be true, there would be no error in the trial court's assumption of such fact in the issue. El Paso Drive-In Cafes, Inc. v. Wilson, 467 S.W.2d 200, 203 (Tex.Civ.App.1971, no writ).

UNDISPUTED BACKGROUND FACTS

The accident occurred approximately 11:29 p.m. on December 26, 1975, at the point where Morrell Road in Round Rock crosses the railroad track in question. MKT's train was west-bound. As it approached the city limits of Round Rock, it was travelling at a constant speed of 40 miles per hour--reduced by order of the MKT's train consisted of three diesel electric pulling engines, 30 loaded and 22 empty cars. Its total weight was 3317 tons, its length 2606 feet. At 2034 feet east of the crossing there was a two-crossing whistle board sign on the railroad right of way. The purpose of the sign is to inform the front-end crew of the train that they are approaching two crossings for which they have to go through the whistle sequence hereinafter described. East of the crossing was a railroad trestle, with the east end thereof 1754 feet from the center of the crossing and the west end 1504 feet therefrom. Two switch stands were east of the crossing, one 746 feet and the other 400 feet from the center of the Morrell Street crossing. On Morrell Street, on the switch side of the crossing, there was a stop sign, located 12 feet south of the nearest rail.

railroad from the normal speed limit of 50 miles per hour, due to holiday traffic. The four-door car in which Alvarez was a back-seat passenger was north-bound on Morrell Street.

To resolve the question of whether Special Issue 1 was erroneous, a summary of the testimony is necessary.

Alvarez lived in Round Rock. Antonio Ledesma (Alvarez's brother-in-law) and Antonio Tijerina were visiting at the Alvarez home on December 26. At the request of Alvarez's wife, the three men left in Tijerina's car to go for food. According to Tijerina and Ledesma, the latter drove the car because Tijerina was not familiar with Round Rock. Ledesma also said that Tijerina did not feel like driving. The train conductor said that Tijerina told him that he was the driver.

Ledesma's testimony was that: he drove, Tijerina was the right front-seat passenger, and the plaintiff, Alvarez was the right rear-seat passenger; Ledesma approached the stop sign at 15 to 20 miles per hour; he stopped, looked both ways, did not hear a whistle or horn, decided it was safe to proceed, and drove onto the crossing tracks, when the car stalled; the car "just cut-off"; he unsuccessfully attempted to start the car a couple of times, looked to his right, and saw the train coming when the train lights caught his attention; as he tried to start the car, Tijerina got out and started waving at the train to stop; Ledesma screamed for everyone to get out; when he saw the train lights, it was obvious that everyone had time to do so; he and Tijerina ran to the front of the car; he did not see what Alvarez was doing; he knew what it was to "play chicken," i.e., make it look like a stop, then "take off"; he did not intentionally stop the car on the tracks; Tijerina had said that the car had been "missing a little bit"; it was after the car stalled that he first saw the train lights; he did not tell the DPS officer that he had seen the train before he went on the crossing; he thought he had time to get across, and imagined that he could have if the car had not stalled; he "might have" taken a chance with trains before.

Tijerina, the owner of the car, testified that as far as he knew, all four doors and the door locks were working all right; when they got to the crossing, he looked both ways and did not see a train; he first saw the train light after the car had stopped on the crossing after pulling out from the stop sign; as soon as Ledesma saw the light, he told "us" to get out; he did so, waved a couple of times, kept looking at the light, and ran beyond the front of the car; he did not see Alvarez and did not know what Alvarez did.

Alvarez testified: that he was the right-rear passenger in the four-door car; when he got in, he locked the door, as was his habit; Ledesma stopped at the stop sign; Alvarez did not hear a train whistle or bell nor see the train lights; Ledesma started over the tracks; the car stalled; Ledesma could not re-start it; he did not remember Ledesma seeing the train lights and hollering for everyone to get out; he realized the car was stopped on the tracks; there was a point in time when everyone started getting out; he said "I was real scared" and "I panicked"; he tried to open the door handle, which was jammed; he tried to push the front seat forward, but could not do so; he thought it was a two-door car; he jumped over the front seat and exited the car from the front; at the time he was getting out of the car he saw the train light Robert Donnell, the MKT engineer, testified: the train came through Hutto and Round Rock at 40 miles per hour with no reduction in speed until he applied the emergency brakes; the Morrell street crossing was the third crossing in Round Rock; as the train approached the stretch of track in question, it came around a slight curve and straightened up at about the first whistle board, from which he could see the crossing;...