Missouri Pac. R. Co. v. Cooper

• Decision Date: 22 February 1978
• Docket Number: No. B-6735,B-6735
• Citation: 563 S.W.2d 233
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. Lula COOPER et al., Respondents.
• Court: Texas Supreme Court

Page 233

563 S.W.2d 233

MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. Lula COOPER et al., Respondents.

No. B-6735.

Supreme Court of Texas.

Feb. 22, 1978.

Rehearing Denied March 22, 1978.

Jackson, Walker, Winstead, Cantwell & Miller, John L. Lancaster, III and C. Steven Matlock, Jr., Dallas, for petitioner.

Ernest L. Sample, Beaumont, for respondents.

POPE, Justice.

This is a wrongful death action arising from a collision between the Cooper passenger car and a Missouri Pacific freight train. Wilfred Cooper and his wife, Evina, died as a result of the accident and Sheronell, their daughter, was injured. The plaintiffs are the parents of the two decedents and the legal representatives of the two minor children. The trial court rendered judgment in favor of the minor children on a jury verdict in the amount of $71,000, and the court of civil appeals affirmed the judgment. 547 S.W.2d 723. Missouri Pacific urges by this appeal that there is no evidence to support the jury finding that the crossing was extra hazardous, and that the trial court erred in admitting testimony of prior accidents and also evidence that the crossing had a local reputation for being extra hazardous. We reverse the judgments of the courts below because of the improper evidence admitted upon the trial and render judgment that plaintiffs take nothing.

The Cooper family was traveling in an easterly direction along Farm Road 413 at about 5:00 A.M. on February 2, 1969. The road was lightly traveled. The family reached a point about nine miles east of Rosebud where they crossed the Brazos River. Without changing directions they drove about 800 feet farther east to a point where a single Missouri Pacific railroad track intersected the road at right angles. The Cooper vehicle ran into the side of a freight train that was crossing the road and moving to the south. The train consisted of 113 cars and a caboose and was pulled by four engines. The tracks were the Missouri Pacific's main line from Fort Worth to Houston. There was a light beam on the front engine which at the time of the accident was already about three fourths of a mile south of the crossing, and there was a light on the caboose. There were no other lights between the front and back of the train. The train was moving at a speed of about forty-five miles an hour.

The Cooper automobile ran into the 110th freight car, killing Evina Cooper instantly. Wilfred Cooper died a week later without ever regaining consciousness. A two-week-old infant sustained a broken arm, and a six-year-old daughter was unharmed. Both Mr. and Mrs. Cooper were thrown out of the car, which was itself totally demolished.

The weather at the time of the collision was foggy and damp. The evidence varied as to whether it was a light fog or "a lot of fog" on the morning of the accident. The rural setting of the accident was described by the witnesses as flat for at least a mile in all directions. There were no houses or lights in the vicinity and the crossing was outside of any towns. The railroad tracks were on a level with the road. One driving from the west to the east would drive over a hill about one mile west of the crossing and would have three kinds of warning signals before reaching the crossing. A large "X" with an "R" on each side was painted on the surface of the paved two-lane highway about 400 feet west of the crossing. To the right of that painting just off the shoulder of the road was the usual yellow round metal sign that also had an "X" with an "R" on either side. Near the tracks and just off the shoulder on the right side of the road there was the familiar cross buck sign with two crossing boards erected on a white pole. The word "Railroad" was written in black on one of the boards and the word "Crossing" was on the other. A similar sign faced the opposite direction on the other side of the tracks. An additional warning of danger to those proceeding toward the railroad crossing was the presence of railroad cars that were already occupying the crossing and directly in front of the driver. Texas & N. O. R. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 (1940); Texas City Terminal Ry. Co. v. Allen, 181 S.W.2d 727 (Tex.Civ.App. Galveston 1944, writ ref'd); Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App. San Antonio 1934, writ ref'd); Missouri-Kansas-Texas R. R. Co. v. Bernhardt, 418 S.W.2d 368 (Tex.Civ.App. Austin 1967, writ ref'd n. r. e.); Missouri-Kansas-Texas R. R. Co. v. Wagner, 400 S.W.2d 357 (Tex.Civ.App. Waco 1966, writ ref'd n. r. e.).

The warnings signs that were located along the highway were adequate warnings for the dangers of an ordinary rural railroad crossing. Every railroad crossing is dangerous, but it is only crossings which are found to be extra hazardous that place the higher duty upon the railroad to use extraordinary means to warn travelers along the road. Ft. Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 283 (Tex.1964); Missouri, K. & T. Ry. Co. v. Magee, 92 Tex. 616, 50 S.W. 1013 (1899); Missouri, K. & T. Ry. Co. v. Long, 299 S.W. 854 (Tex.Comm.App.1927, judgmt. adopted). The plaintiffs in the case before us had to show not that the railroad crossing was dangerous; they had to show that it was extra hazardous.

The plaintiffs obtained a favorable jury finding that the crossing was extra hazardous and conditioned upon that finding the jury additionally found that the railroad was negligent in failing to have an automatic warning signal at the crossing. There was evidence that such a signal might consist of flashing red lights. The jury refused to find that the railroad was negligent in failing to break the train into smaller units, in failing to have lights or reflectors on the sides of the railroad cars, in failing to put out flares at the crossing, or in failing to place a flagman with a lantern at the crossing. The court charged the jury: "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."

The central question in this appeal is whether there is any evidence which supports the jury finding that the crossing was extra hazardous, upon which finding the duty to provide the additional warning device is grounded. The plaintiffs relied upon several kinds of evidence to establish that fact: the view of the crossing was obstructed, the crossing was obscured by fog, there had been prior accidents at the crossing, and the crossing had a local reputation as an especially dangerous one. Missouri Pacific says that none of the evidence established the extra hazardous nature of the crossing.

Mr. John Pearson, a resident in the farm community, had lived in the locality all his life. He testified that a growth of trees obstructed the view of the crossing. This is not a case of an approaching train and a car that collide at a crossing; it is that of a car running into the side of a train that had already reached and was occupying the crossing. See Zamora v. Thompson, 250 S.W.2d 626 (Tex.Civ.App. San Antonio 1952, writ ref'd); Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App. San Antonio 1934, writ ref'd); Missouri-Kansas-Texas R. R. Co. v. Bernhardt, 418 S.W.2d 368 (Tex.Civ.App. Austin 1967, writ ref'd n. r. e.). Mr. Pearson at first testified that trees and shrubs interfered with visibility of a traveler on the road, but when confronted with a picture of the crossing taken five days after February 2, the date of the collision, he admitted that there was no obstruction in the open pasture land during the wintertime when the trees were bare of their foliage. The photograph shows that the crossing was open and unobstructed.

The evidence that the crossing was obscured by fog does not support the finding that the crossing was extra hazardous. There was evidence that fog was more prevalent along the Brazos River which paralleled the railroad tracks near the point of the collision. This court and many others have rejected foggy conditions as proof of more than ordinary danger. The facts in Texas & N. O. R. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 (1940), were that just after midnight the plaintiff ran into the sixtieth car of a freight train consisting of eighty-seven cars. The engine was already more than one-half mile beyond the intersection. The intersection of the road and track was also on a flat prairie without any obstructions. "The night was dark and foggy and the visibility was poor." 135 Tex. at 9, 136 S.W.2d at 1114. The court regarded the crossing as an ordinary one which did not cast a higher duty upon the railroad company to provide extraordinary precautions.

Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 746 (Tex.Civ.App. San Antonio 1934, writ ref'd), reversed a jury finding that a crossing was more than ordinarily dangerous in the nighttime. That was a case in which the decedents during the nighttime ran into the middle of a moving train of eight cars. The approach to the crossing was over a straight, even and level country road for about 900 feet before reaching the crossing. There was testimony that the accident occurred during the wintertime when the vicinity "was usually enveloped in a heavy fog" that obscured the vision. 74 S.W.2d at 747. The countryside was open except for some mesquite trees that were bare of foliage at that time of the year. A companion case also decided as a matter of law that the crossing was not extra hazardous. Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App. San Antonio 1934, writ ref'd).

The facts in Panhandle & Santa Fe Railway Co. v. Liscomb, 365 S.W.2d 190 (Tex.Civ.App. El Paso 1963, writ ref'd n. r. e.), were that a driver just after midnight approached a spur track almost at a right angle. The road was straight but had a slight upward grade. It was dark but there was no fog. The driver collided with the...