Missouri Pac. R. Co. v. Cooper, 5696

• Decision Date: 17 February 1977
• Docket Number: No. 5696,5696
• Citation: 547 S.W.2d 723
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Lula COOPER et al., Appellees.
• Court: Texas Court of Appeals

Page 723

547 S.W.2d 723

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Lula COOPER et al., Appellees.

No. 5696.

Court of Civil Appeals of Texas, Waco.

Feb. 17, 1977.

Rehearing Denied March 17, 1977.

John L. Lancaster, III, Dallas, for appellant.

Ernest L. Sample, Beaumont, for appellees.

OPINION

McDONALD, Chief Judge.

This is a suit by the surviving family members to recover for the death of Wilford Cooper and his wife Evinia for personal injuries to Sheronell, their daughter. The deaths and injuries occurred as the result of a collision between the Cooper's automobile and a Missouri Pacific freight train.

Trial was to a jury which found:

1) On February 2, 1969, at the time and on the occasion in question, defendant's railroad crossing over FM 413 near the Brazos River, which was involved in this case, was extra hazardous.

The court instructed: "A railroad crossing is extra hazardous when, because of surrounding conditions, it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the usual cross arm sign".

2) Defendant was negligent in failure to have an automatic signal at the crossing to warn vehicle or traffic.

3) Such negligence was a proximate cause of collision between the Cooper automobile and the train.

After striking one item of damages (not here in question) the trial court rendered judgment on the verdict for plaintiffs against defendant for $71,000.

Defendant appeals on 4 points contending:

1) There is no evidence to support jury finding 1, that the crossing was extra hazardous.

2) Jury finding 1, that the crossing was extra hazardous, is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

3) It was prejudicial error to admit evidence of the reputation in the community of the crossing for being extra hazardous or dangerous.

Wilford Cooper and wife and their infant daughter (and Mrs. Cooper's daughter) were occupants of an eastbound automobile which collided with the 110th car of defendant's southbound 113-car freight train, at night, in a fog, on February 2, 1969, at the railroad's grade crossing on FM Highway 413 in Falls County. The railroad had at the crossing its standard crossbuck sign (which contained no automatic signal with light or bell). There were no witnesses to the accident. Mr. and Mrs. Cooper were both killed, and the daughter received a broken arm.

Plaintiffs plead the crossing of Highway 413 and the railroad track was extra hazardous, and that the railroad was negligent in not taking extraordinary means to guard the crossing and warn motorists.

The witness Kilgore testified he knew of prior accidents that happened at this crossing; that the Bama pie salesman had an accident in daylight hours with a train at this crossing; that an elderly couple had an accident at this crossing. Over objection by defendant he further testified, this crossing had the reputation of being a dangerous crossing; that such reputation was by reason of accidents that had actually happened there before this accident occurred.

The witness Pearson testified he lives on FM 413; that he is familiar with the locality and the...