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

• Decision Date: 27 April 1955
• Docket Number: No. 10284,MISSOURI-KANSAS-TEXAS,10284
• Citation: 279 S.W.2d 410
• Parties: RAILROAD COMPANY OF TEXAS, Appellant, v. Ruth Adele McFERRIN et al., Appellees.
• Court: Texas Court of Appeals

Page 410

279 S.W.2d 410

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS, Appellant, v. Ruth Adele McFERRIN et al., Appellees.

No. 10284.

Court of Civil Appeals of Texas, Austin.

April 27, 1955.

Rehearing Denied May 25, 1955.

Naman, Howell & Boswell, G. H. Penland, Hilton E. Howell, Waco, for appellant.

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

HUGHES, Justice.

This suit results from a collision between a passenger train operated by appellant, Missouri-Kansas-Texas Railroad Company of Texas and a 1941 Pontiac Club Coupe automobile operated by R. T. McFerrin, deceased, which collision occurred about 2 P.M., January 31, 1953, at what is called Center Oak Crossing located about two miles north of Holland in Bell County, Texas.

The suit was brought by the widow of R. T. McFerrin, Ruth Adele McFerrin, for herself and as next friend for the eight minor chidren of herself and her deceased husband.

Trial was to a jury which returned a verdict in every way favorable to appellees. The jury found:

(1) The train was being operated at an excessive rate of speed, (2) the engineer failed to keep a proper lookout, (3) the train bell was not rung nor its whistle blown, (4) the railroad crossing was extra hazardous and no automatic warning signal was maintained, (5) the essentials of the doctrine of discovered peril, (6) the collision was not the result of an unavoidable accident.

The jury exonerated deceased of having been contributorily negligent including the finding that he did not fail to stop his car within 50 feet and not less than 15 feet of the nearest rail.

Damages totaling $58,750 were apportioned among appellees.

Appellant's first point is that deceased was guilty of contributory negligence proximately cusing the collision, as a matter of law, under Section 86, paragraph (d), Art. 6701d, V.A.C.S., which we quote:

'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.'

This point is overruled. Explanation of this ruling requires a recitation of the more important evidence in a manner most favorable to appellees.

Deceased was thirty-seven years old at the time of his death and was in good health. He was a fireman for the G. C. & S. F. Ry. Company but had been recently promoted to engineer. The McFerrins had lived within two miles of the Center Oak Crossing for about five years prior to Mr. McFerrin's death and he was familiar with the crossing using it at least four or five times weekly.

The day of the accident was cloudy and misty. The time was about 2 P.M., January 31, 1953.

The scene of the accident is shown by the picture inserted on the following page:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This picture was made in March, 1953, and introduced in evidence by appellant. It shows the track to the south from which direction the train came to strike the McFerrin car and a car approximately 50 feet west of the west track on the gravel road traveled by the McFerrin car.

We also insert a picture introduced by appellant taken from the gravel road, shown in the preceding picture, 35 feet west of the west rail and showing a train stopped 900 feet to the south. ¹

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The gravel road crosses the track at right angles and proceeding west it begins to turn at 60 feet and turns south at about 100 feet from the crossing and parallels the track for about 600 feet upgrade (gaining about 9.5 feet elevation in 600 feet) when it turns west and away from the tracks.

At about 25-50 feet south of the crossing and between the tracks and the gravel road there begins an embankment which runs south and parallel to the tracks. This embankment at 100 feet south of the crossing is 4 feet higher that the rails, 5 feet higher at 200 feet, 9 feet higher at 250 feet, 11 feet higher at 275 feet, 15 feet higher at 500 feet and about 19 feet higher at 800 feet.

These figures are profile figures and do not take into account weeds, trees and shrubs growing on the embankment to a height, in some places, of four or five feet.

Some 1100 feet south of the crossing the tracks enter a long curve to the west which curve is in a deep cut for more than half a mile.

The railroad right of way is 100 feet wide, the tracks being in the center.

A locomotive is about 14 feet 6 inches high.

The eye level of a person seated in a passenger automobile is about 4 feet from the ground.

Based on these physical facts Mr. Fred Williamson, County Surveyor of Bell County, a witness employed by and vouched for by all parties, testified that at a height of 4 feet above the gravel road 50 feet west of the crossing looking in the direction from which the train approached on the occasion in question, the line of sight would be completely unobstructed for 350 feet, and as far back as 700 feet south of the crossing the line of sight would include more than half of an object 14 feet high. At the same 50 feet on the road the line of sight would continue to include some portion of a 14 feet object on the track as far south as 1,000 feet. At 45 feet west of the crossing on the road the line of sight on the track to the south at 700 feet would include the upper 10 feet of a 14 foot object, and at approximately 1,000 to 1,100 feet the line of sight would still include some portion of the object. At 40 feet the line of sight would include the upper 10 feet of a 14 foot object as far south as 700 feet and the upper half of such object at 100 feet and going further south would include some portion of it. From thirty feet west of the crossing to the crossing 'there is no physical object other than the curve of the track or the slight rise of the ground to obstruct the line of sight from that point on.' The embankment 'is no longer in the line of vision' and is not a factor to be considered. From 30 feet the only obstruction would be the curvature of the track so that at 1,400 feet the top of an object 6 feet high would be in the line of vision.

There was no automatic signal at the crossing, no flagman and no warning device except the standard cross-arm sign.

The evidence shows that this crossing was on the main road from the Center Oak community to State Highway 95 on the east side of the tracks and that it was a busy crossing being much used by the public and by the railroad, at least eight fast trains passing over it every twenty four hours.

Many witnesses testified to the dangerous character of the crossing and the difficulty in seeing trains approaching from the south when crossing the tracks from west to east.

The evidence also showed that there had been ten near accidents and three separate accidents at the crossing prior to the one in suit.

Mr. Jap Stafford who had known the crossing all his life (65 years) and who had 'had dangerous calls there two or three times' testified that a year or so before Mr. McFerrin was killed he discussed the dangerous character of the crossing with appellant's Division Engineer and Division Superintendent in an unsuccessful effort to have the company build an overpass.

Mr. McFerrin approached the tracks from the fireman's side of the locomotive. The fireman testified that he had seen the McFerrin car coming from the west before the road turned left to parallel the tracks at a speed of about 18 miles per hour and that the car slowed perceptibly when it made the right angle turn on the wet, slick ground just before reaching the crossing.

The train at the moment of the collision was traveling 60 miles per hour or 88 feet per second.

The McFerrin car almost cleared the crossing. It was struck about 2 feet from the back end. After the collision it was noted that the right car window was open and the car was in second gear. This latter fact together with testimony that it was the habit of Mr. McFerrin to stop before crossing the tracks is the principal evidence upon which the jury based its finding that deceased did not fail to stop as required by the above statute.

Appellant has cited several cases including our Lackey v. Gulf C. & S. F. Ry. Co., Tex.Civ.App., 225 S.W.2d 630, under this point. The factual differences in such cases are so marked that comparison is almost futile. In Lackey, for instance, plaintiff pulled around a street corner and without stopping drove onto the tracks and he was unable to explain why he failed to see the engine which struck him, it appearing that the only obstruction to his view was a box car or two some 300 feet away. Also it did not there appear that the engine was bearing down on plaintiff at the rate of 88 feet per second on a murky day nor was the crossing shown to be extra hazardous.

Texas & N. O. R. Co. v. Stewart, Tex.Civ.App., 248 S.W.2d 177, Waco, writ ref. N.R.E., is of no help because there plaintiff's truck traveling at an unlawful rate of speed ran broadside into a train already occupying the crossing and moving at a rate of speed of 10 to 15 miles per hour.

Zamora v. Thomspon, Tex.Civ.App., 250 S.W.2d 626, San Antonio, writ refused, was another case in which plaintiff drove into the side of a train already occupying the crossing when it came within the range of his vision.

Gulf C. & S. F. Ry. Co. v. Pratt, Tex.Civ.App., 262 S.W.2d 775, San Antonio, writ ref., N.R.E., was a 'discovered peril' case there being no contention that jury findings convicting Pratt of violating the statute involved here were without evidentiary support.

Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, is also solely a 'discovered peril' case.

In Peters v. Chicago, R. I. & P. R. Co., Tex.Civ.App., 257 S.W.2d 860, Amarillo, writ ref., N.R.E., the jury found...