Missouri-Kansas-Texas R. Co. of Texas v. McKinney

• Decision Date: 16 February 1939
• Docket Number: No. 2062.,2062.
• Citation: Missouri-Kansas-Texas R. Co. of Texas v. McKinney, 126 S.W.2d 789 (Tex. App. 1939)
• Parties: MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS et al. v. McKINNEY et al.
• Court: Texas Court of Appeals

Page 789

126 S.W.2d 789

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS et al. v.McKINNEY et al.

No. 2062.

Court of Civil Appeals of Texas. Waco.

February 16, 1939.

Rehearing Denied April 6, 1939.

Appeal from District Court, Seventy-Fourth Judicial District, McLennan County; Giles P. Lester, Judge.

Action by 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.From an adverse judgment, defendants appeal.

Affirmed.

Chas. C. Huff, of Dallas, Naman, Howell & Boswell, of Waco, and Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, for appellants.

Conway & Scharff, of Waco, for appellees.

GEORGE, Justice.

Mrs. Mary Lola McKinney and two children instituted this suit for damages for the wrongful death of their husband and father, J. N. McKinney, against Jackson-Strickland Transportation Company and Missouri-Kansas-Texas Railroad Company of Texas.The case was tried before the court and jury and judgment was rendered in favor of the McKinneys for the aggregate sum of $16,000 against both Transportation Company and Railroad Company on the jury's findings that the driver of the truck and the operatives of the train were each guilty of negligence in many respects, and that each act of negligence was a proximate cause of the collision between the tank car and truck.

The Railroad Company contends (1) that the trial court erred in not granting its peremptory instruction and its motion for judgment non obstante veredicto; (2) that appellees' counsel made improper argument that injuriously affected the Railroad Company's rights; (3) that the answers of the jury to issues Nos. 5 and 6, that the act of engineer Keith in driving the train over the crossing was negligence proximately causing the collision, were without any evidence to support them and were against the overwhelming weight and preponderance of the evidence; (4) that the answers of the jury to issues Nos. 9 and 10, that the failure of engineer Keith to stop the train as it approached the east edge of the concrete constituted negligence proximately causing the collision, were wholly without any evidence to support them and were against the overwhelming weight and preponderance of the evidence; (5) that the answers of the jury to special issues Nos. 10c and 10d, that the failure of engine foreman Moody to stop his train as it approached the east edge of the concrete constituted negligence proximately causing the collision, were wholly without any evidence to support them and were against the overwhelming weight and preponderance of the evidence; (6) that the answers of the jury to issues 18 and 19, that the failure of the engineer to blow the whistle as the train approached the east edge of the concrete constituted negligence proximately causing the collision, were without any evidence to support them and were against the overwhelming weight and preponderance of the evidence; (7) that there is an irreconcilable conflict between the jury's findings that engineer Keith was negligent in driving the train across the highway over the crossing, that engineer Keith was negligent in failing to stop the train as it approached the east edge of the concrete highway, and that engine foreman Moody was negligent in not stopping the train as it approached the east edge of the concrete highway and the jury's finding that the operator of the truck was negligent in failing to yield the use of the crossing to the train and that such failure was negligence and the proximate cause of the collision; (8) that the court erred in entering judgment against the Railroad Company for the reason that no issue was submitted to the jury inquiring as to whether any of the acts of negligence submitted constituted a proximate cause of the death of McKinney; (9) that the court failed to properly charge the jury on the burden of proof with reference to the issue of unavoidable accident; (10) that the court's definition of "unavoidable accident" was erroneous.

The Transportation Company's truck at about 6:30 A. M., July 5, 1936, ran into the Railroad Company's tank car on the crossing on the concrete portion of State HighwayNo. 2, about five miles north of Waco, knocking it over on J. N. McKinney and instantly killing him.The tank car was near the center of the pavement.McKinney, who was a car inspector in the employ of the Railroad Company, was riding on the running board on the south side of the tank car.The train consisted of an engine, tender and empty tank car and was approximately 100 feet in length.The truck and its attached trailer had a load of 10,213 pounds of steel lockers.The train approached the crossing from an easterly direction and the truck from a northerly direction.The concrete pavement is twenty feet wide and the right-of-way on each side thereof is forty feet.The train came to a stop when it reached a point about thirty-five or forty feet from the eastern edge of the concrete, at which time both engineer Keith and engine foreman Moody saw the truck.The train remained stopped only ten or twelve seconds, then proceeded west.It had been raining intermittently during the morning.The highway was wet and the sun was just fixing to shine.There was testimony to the effect that the speed of the truck was from twenty to twenty-five miles per hour; that the speed of the truck was from sixty to sixty-five miles per hour; that the truck traveling at sixty miles per hour with its load on the wet pavement could not have been stopped under 550 feet; that the train traveling at five or six miles per hour could have been stopped in two or three feet by being "big holed;" that when the train started up from its stopped position, the truck was about 850 feet from the crossing; that the truck at that time was three-fourths of a mile north of the crossing; that when the front end of the engine reached the eastern edge of the concrete the truck was 120 feet north of the crossing; that the truck at such time was five or six hundred feet north of the crossing; that the truck at such time was between 1,000 feet and one-fourth of a mile north of the crossing; that the train was not going over two or three miles per hour as it approached the eastern edge of the concrete; that it was traveling at such time at the speed of between four and five miles per hour; that it was traveling at the rate of five or six miles per hour at the time of the collision; that it was traveling at the rate of fifteen miles per hour at the time of the collision; that it was traveling at the rate of between twenty and twenty-five miles per hour when it entered upon the concrete portion of the crossing; that engineer Keith and engine foreman Moody realized at the time the train reached the eastern edge of the concrete that the truck was coming into a field of danger, and that a collision would occur if it didn't either slacken its speed or stop; that the truck did not slacken its speed from the time it was first observed until it reached a position of about 120 feet north of the crossing; that engineer Keith and engine foreman Moody knew that few cars made less than sixty miles per hour on that highway if they could get it out of them; and that engineer Keith continuously increased the speed of his train until the time of the collision.

Thus, it is obvious that the evidence is conflicting and some of it contradictory not only within itself but with the physical attendant facts and happenings, that different inferences may properly be drawn from the facts depending wholly upon the grouping and acceptance of certain facts and circumstances as true and the rejection of others as incorrect, and that there is an irreconcilable dispute about the principal facts.It would possibly be true that there was an absence of negligence shown on the part of the operatives of the railroad if we should accept as correct the version given by the witnesses for the railroad to the effect that the truck was traveling at a speed of sixty miles per hour and was from three-fourths to one mile north of the crossing when the train started up thirty-five or forty feet east of the concrete, that there was nothing in the manner in which the truck was being operated that would indicate a collision between the truck and the train, and that the train traveled at a rate of speed from no miles to fifteen miles per hour, yet such testimony does not account for the collision, for it...