Missouri Pac. R. Co. v. Shaw

• Decision Date: 30 June 1981
• Docket Number: No. 1714,1714
• Citation: 620 S.W.2d 161
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. John Wayne SHAW, Appellee.
• Court: Texas Court of Appeals

Page 161

620 S.W.2d 161

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. John Wayne SHAW, Appellee.

No. 1714.

Court of Civil Appeals of Texas, Corpus Christi.

June 30, 1981.

Bond Davis, Gresham, Davis, Gregory, Worthy & Moore, San Antonio, William H. Keys, Keys, Russell, Seaman & Mansaker, Corpus Christi, J. R. Schneider, Schneider & McWilliams, George West, for appellant.

Paul Jensen, Dudensing, Webb, Tullis & Jensen, Houston, Russell H. McMains, Edwards & Perry, Corpus Christi, for appellee.

Carol S. Noble, Houston, for intervenor.

OPINION

YOUNG, Justice.

This is an appeal of a judgment entered for $482,091.00 in favor of the driver of a tractor-trailer which collided with a caboose at a railroad crossing. The judgment was based on findings by the jury that the railroad had a duty to warn of the backing operation of the train at the crossing. Appellant, Missouri Pacific Railroad Company, in its appeal asserts error in the failure of the trial court to enter judgment non obstante veredicto because of the lack of a finding that the crossing was extra hazardous, which finding is necessary to impose a duty on appellant to warn. We affirm.

A brief summary of the relevant facts, according to appellee, is as follows. Appellee, John Wayne Shaw, was driving a tractor-trailer through George West in the darkness of early morning on September 28, 1976. As he approached a railroad crossing which had lights flashing, he saw the headlights of two trains, one which was moving away from the crossing in a northerly direction, the other which was moving to the south away from the crossing. Shaw, being fully cognizant of train activity, approached the crossing cautiously, stopping some distance away from the tracks. Shaw testified that after stopping, he looked in both directions carefully, and seeing no trains, proceeded to cross the tracks. As the cab of his tractor-trailer traveled over the tracks, it was struck from the left side by the caboose of a train that was backing across the crossing. This collision caused the injuries of which he complains.

The liability of the parties was determined by the jury on primary negligence issues. Judgment was entered in favor of the appellee, who sustained injuries as a result of the appellant's failure to give adequate warnings of the backing operation of the train. The trial court refused to grant the appellant's motion for judgment non obstante veredicto, which urged that the verdict would not support a judgment for the appellee on two grounds:

"(1) Since Plaintiff saw the locomotive lights and the flashing lights at the crossing, and appreciated the danger, Railroad had no duty to provide any additional warnings, and any failure to provide additional warnings could not have been a proximate cause of the collision; and

(2) In the absence of pleading, proof, and a finding by the jury that the crossing was extra-hazardous, Railroad had no duty to provide any additional warning."

Appellant in its first point of error contends that the trial court erred in overruling the motion for judgment non obstante veredicto. In that motion, the appellant argued that a finding of liability on the part of the railroad could not be sustained without pleading and proof that the railroad owed a duty to warn the plaintiff of the extra hazardous nature of the crossing. Therefore, judgment could not properly be entered in favor of the appellee without a finding that the crossing was extra hazardous.

In reviewing an order overruling judgment non obstante veredicto, this Court must ascertain whether the material jury findings are without support in the evidence or are contrary to the conclusive evidence. Pate v. Southern Pacific Transportation Co., 567 S.W.2d 805, 807 (Tex.Civ.App. Houston (14th Dist.) 1978, writ ref'd n. r. e.). All evidence must be viewed in a light most favorable to the jury's findings in making this determination. Wood v. Texas Farmers Insurance Co., 593 S.W.2d 777 (Tex.Civ.App. Corpus Christi 1979, no writ). After reviewing all the evidence in light of this rule, we hold that the findings of the jury are adequately supported by the evidence.

The crux of appellant's argument, however, is not a challenge to the evidentiary support to the jury's findings. Appellant's main contention is that in the absence of a finding of extra hazardous crossing which would impose upon the appellant a duty to warn, no liability may be imposed upon appellant because appellant has done everything it was required to do by law. No additional duty was required by statute so long as article 6370 was complied with by the appellant. (Tex.Rev.Civ.Stat.Ann. art. 6370 requires the erection of a warning sign close to the crossing to warn persons of the necessity of looking out for railroad cars.) In other words, if appellant complied with this statute and if the crossing was not extra hazardous in nature, then the appellant could not be held liable for any injuries incurred as a result of an automobile crossing the tracks. In support of this contention, appellant offers many opinions of appellate courts of this State allegedly standing for the proposition that no additional duty to warn is required. An examination of some of the case law on both sides of this issue follows.

Every railroad crossing is a place of danger. The hazardous nature of a crossing should be recognized by both the driver of the automobile and the operators of the train alike. Panhandle & Santa Fe Ry. Co. v. Karr, 257 S.W.2d 486 (Tex.Civ.App. Amarillo 1953), aff'd, 153 Tex. 25, 262 S.W.2d 925. In order to eliminate some of the dangers inherent to railroad crossings, statutes have been promulgated by the Legislature of this State which set out the minimum standard of safe conduct which must be exercised by both the driver of the car and the operators of the train.

The duty imposed on the driver of an automobile is to stop his car within a specified distance in the event one of four circumstances occur which warn the driver of the proximity of a train. Tex.Rev.Civ.Stat.Ann. art. 6701d, § 86; Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973); Southern Pacific Transportation Company v. Garrett, 611 S.W.2d 670 (Tex.Civ.App. Corpus Christi 1980, no writ). The operators of the train, on the other hand, must not only erect the familiar crossbuck signs at crossings but also must take other steps such as the sounding of bells and whistles and the using of headlights to warn the public that a train is approaching the crossing. Tex.Rev.Civ.Stat.Ann. art. 6370-6372 (1980); Burlington-Rock Island Ry. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943); Burlington-Rock Island Ry. Co. v. Whitmire, 186 S.W.2d 296 (Tex.Civ.App. Waco 1945, no writ).

When these statutory duties are complied with, the chances of a serious collision between car and train are greatly reduced. Unfortunately,...