Missouri-Kansas-Texas R. Co. of Texas v. Lane, 14503.

Citation213 F.2d 851
Decision Date20 July 1954
Docket NumberNo. 14503.,14503.
PartiesMISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. LANE et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Ben H. Rice, III, and C. E. Bryson, Houston, Tex., G. H. Penland, Dallas, Tex., Vinson, Elkins, Weems & Searls, Houston, Tex., for appellant.

J. Edwin Smith, Houston, Tex., Terry L. Jacks, San Marcos, Tex. (Smith & Lehmann, Houston, Tex., of counsel), for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

HOLMES, Circuit Judge.

This is an action for damages, under the statutory law of Texas, for the alleged wrongful death of Homer Edward Lane, the husband of Clarice Ann Lane and the father of Rusty Ann Lane. Federal jurisdiction depends solely upon diversity of citizenship and the requisite jurisdictional amount. The injuries causing death occurred at a railroad crossing in Texas, and the issue as to liability is governed by the laws of that state.

The deceased met his death at a railroad crossing while riding as a passenger in an automobile, which collided with a freight train operated by appellant. The accident occurred on March 2, 1951, about 10:30 p. m. on a clear chilly night, and numerous acts of negligence on the part of the railroad company were alleged in the complaint; but in a trial upon the merits before the judge and a jury in the court below, the defendant was exonerated of every allegation of negligence except one. By special verdict, in answer to questions propounded by the court, the jury found that the train crew was negligent, shortly before or at the time of the collision, in so far as the fireman did not notify the engineer of the approaching automobile; and that such negligence was the proximate cause of the collision. The jury also found that the deceased was not negligent; and that the operators of the train did not discover or realize the position of peril of the deceased in time to avoid the accident.

After discovering and realizing the position of peril of the deceased, as the jury found, the operators of the train did not fail to exercise ordinary care in the use of all the means at their command, commensurate with their own safety and with the safety of the train and its crew, to avoid the collision. While conceding that the evidence of negligence on the part of the fireman was not strong with respect to his failure to warn the engineer of the approaching automobile, and that perhaps the argument to support the verdict on this ground was somewhat tenuous, the court below was unable to say as a matter of law that the special verdict was wrong and should be disregarded. Final judgment was accordingly entered on the verdict for the amounts fixed by the jury.

The plain facts are that, as this automobile approached the crossing, it was in a position from which the train was plainly visible if the driver or occupants of the car had looked. The driver did, in fact, see the train from behind the tank cars and tried to stop, but he was going at such a rate of speed that he was unable to do so before the impact. The train consisted of two diesel engines, a caboose, 51 cars, 18 loaded and 33 empty, and was travelling at a speed of about 35 miles per hour. The head-light of the locomotive was shining. The deceased was sitting in the front seat on the right hand side of the car at the time of the collision. The approaching automobile had to pass over three railroad tracks before it reached the main line on which the freight train was travelling.

As to whether or not judgment for the plaintiffs should have been entered upon the verdict of the jury, the crucial question is: Was there substantial evidence to support the special finding that the fireman was negligent in failing to notify the engineer of the approaching automobile prior to the time when it became apparently probable that the car was going to strike the locomotive? Taking, as it said, a sympathetic view of the verdict and the evidence...

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3 cases
  • Kansas City S. Ry. Co. v. Wiggins
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 28, 1956
    ...Texas & Pacific R. Co., La.App., 66 So.2d 621; Cook v. Louisiana & N. W. R. Co., 130 La.App. 917, 58 So. 767; Missouri-Kansas-Texas R. Co. of Texas v. Lane, 5 Cir., 213 F.2d 851, and second appeal 5 Cir., 223 F.2d 159. 3 A train is not required to slow down at ordinary crossings in the open......
  • Lane v. MISSOURI-KANSAS-TEXAS RAILROAD CO. OF TEXAS, 15466.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 17, 1955
    ...court held he should have entered on it. Indeed, we think he acted wisely in doing so. The judgment is Affirmed. 1 Missouri-Kansas-Texas Ry. Co. v. Lane, 5 Cir., 213 F.2d 851. 2 Madden Furniture Inc. v. Metropolitan Life Ins. Co., 5 Cir., 127 F.2d 837; Roth v. Hyer, 5 Cir., 142 F.2d 227; Fl......
  • Missouri Pacific Railroad Company v. Salazar, 16970.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 26, 1958
    ...the answers of the jury to the other issues and the controlling principles of law, as declared and applied in Missouri-Kansas-Texas Ry. Co. of Texas v. Lane, 5 Cir., 213 F.2d 851 and Brown v. Louisville & N. R. Co., 5 Cir., 234 F.2d 204, the first an appeal from a judgment on a jury verdict......

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