Missouri Pac. R. Co. v. Thomas
Decision Date | 08 March 1979 |
Docket Number | No. 8169,8169 |
Citation | 579 S.W.2d 46 |
Parties | MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Elenor G. THOMAS et al., Appellees. |
Court | Texas Court of Appeals |
C. S. Pipkin, John G. Bissell, Beaumont, for appellant.
Alto V. Watson, Kaye Sexton, Beaumont, for appellees.
On the night of November 25, 1975, Mary Ann Leger was driving on FM 1006 in Orange County, Texas. In the car as her passenger was her sister, Helen Thomas. Near the DuPont plant, two tracks of the Missouri Pacific Railroad Company (Railroad) cross this road. A train was occupying one of these crossings slowly backing south into the DuPont plant when the car driven by Mary Ann Leger drove into and under a tank car of the train, killing both ladies.
Plaintiffs, Elenor G. Thomas, the surviving mother of decedents; and David Leger, Charles Leger, and Paula Davis Bowsher, the surviving children of the deceased driver, Mary Ann Leger, brought a wrongful death action against the Railroad, defendant below. Trial was to a jury which found the Railroad 55 percent negligent and Mary Ann Leger 45 percent negligent. A judgment was given plaintiffs for $65,675 from which Railroad brings this appeal.
Railroad urges that the jury's finding, that the conditions surrounding the crossing in question were such as to render the crossing more than ordinarily dangerous as a nighttime crossing, is supported by no or insufficient evidence or is against the great weight and preponderance of the evidence.
In passing on the no evidence point, we consider only the evidence and inferences therefrom which tend to support the verdict and disregard all evidence and inferences to the contrary, Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). A contention that the evidence is insufficient or against the great weight and preponderance of the evidence directs us to all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
When the resident engineer of the Texas Highway Department was on the stand he was asked by the Railroad's attorney:
'Wood poles can be safely used in this instance by locating illuminator assembly behind exiting metal beam guard fence rail . . . .'
He also was asked by Railroad counsel, "Have you had any accidents at this crossing, that you are aware of, since these lights were put in?" To which he responded: "Not to my knowledge."
This document shows prior accidents at the DuPont crossing, which is evidence to support a finding of extra hazardous crossing. In Missouri Pacific Railroad Company v. Cooper, 563 S.W.2d 233 (Tex.1978), the court held that witnesses testifying as to previous crossing accidents were not qualified because of lack of knowledge of similarity. Since the witnesses had shown no knowledge of similarity in their testimony, the case was rendered, implying that if this could have been "corrected," the case would have been remanded on the issue of extra hazardous crossing. (Id. 238). See also Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925, 932 (1953). "It is noteworthy that there was no testimony whatever that anybody had suffered any accident or near-accident at the crossing under similar conditions prior to the night in question, as there was in the Long case, supra."
And in Missouri K. & T. RR. Co. v. Long, 23 S.W.2d 401, 402 (Tex.Civ.App. Austin 1929, writ ref'd), the court held that evidence of prior accidents or near accidents was proper "(i)n determining whether the crossing was unusually dangerous or hazardous as a nighttime crossing at the time of the accident" and "(i)n determining whether appellant (Railroad) knew, or in the exercise of ordinary care should have known, of the alleged unusually dangerous or hazardous conditions surrounding the crossing at the time of the accident."
We hold that the evidence produced by the Railroad of the prior accidents together with the unobjected to testimony of the highway engineer was sufficient evidence to support the jury finding challenged and thus overrule these points.
Some eight witnesses testified concerning prior accidents at this crossing. Appellant Railroad urges that the proper predicate was not laid for this testimony. Cooper, supra at 236 says:
"The plaintiffs' were required to show that the earlier accidents occurred under reasonably similar but not necessarily identical circumstances."
Undoubtedly some of these points would be good had not the Railroad itself put in evidence earlier the document set out above, which contains the same prior accidents the witnesses allude to.
In Tex.Jur.2d Evidence § 208 (1961) we find:
". . . a party is ordinarily estopped to complain of evidence presented by his adversary if he himself has previously introduced either the same evidence or evidence of a similar character."
See Blakney v. Panhandle & Santa Fe Ry. Co., 381 S.W.2d 143 (Tex.Civ.App. El Paso 1964, writ ref'd n. r. e.), where appellant tried to complain of testimony of appellee's witnesses where testimony of appellant's witness and introduction of diagram by appellant were substantially the same. These points are overruled.
Even though plaintiff's evidence of the subsequent lights installed by the highway department went in evidence without objection and despite the fact the same evidence, as well as the prior collisions, was put in evidence by the Railroad in the highway document set out above, we yet must determine if this evidence is hearsay, for hearsay evidence cannot support a judgment. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941); Hughes v. State, 508 S.W.2d 167 (Tex.Civ.App. Corpus Christi 1974, writ ref'd n. r. e.); Gulf St. Pipeline v. Orange County Water Control & Improvement Dist. No. 1, 526 S.W.2d 724 (Tex.Civ.App. Beaumont 1975, writ ref'd n. r. e.).
Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp.1978) in part reads:
" . (Emphasis supplied).
2 C. McCormick & R. Ray, Texas Law of Evidence § 1258 at 127-128 (Texas Practice 2d ed. 1956):
See Stillman v. United States, 177 F.2d 607, 618 (9th Cir. 1949); 2 C. McCormick & R. Ray, Texas Law of Evidence § 1261 (Texas Practice 2d ed. 1956), ". . . the record of Any sort of 'act, event or condition' may qualify for admission." The United States Department of Agriculture, Soil Conservation Service is "business" within the meaning of this article. Kaufman Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.).
Bond, the Orange resident engineer, testified he had custody of the records covering the Orange County area; that the traffic department actually conducted the investigation of the crossing, but he (Bond) "discussed it with our traffic engineer." He was asked by the Railroad's attorney, "Do your records reflect that all of that was done?" To which he responded, "Correct." He also testified he was personally acquainted with the crossing involved. See Gasperson v. Christie, Mitchell & Mitchell Company, 418 S.W.2d 345, 358 (Tex.Civ.App. Fort Worth 1967, writ ref'd n. r. e.),...
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