Missouri Pac. R. Co. v. American Statesman

• Decision Date: 18 May 1977
• Docket Number: No. B-6207,B-6207
• Citation: 552 S.W.2d 99
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. AMERICAN STATESMAN, Respondent.
• Court: Texas Supreme Court

Page 99

552 S.W.2d 99

MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. AMERICAN STATESMAN, Respondent.

No. B-6207.

Supreme Court of Texas.

May 18, 1977.

Rehearing Denied June 22, 1977.

Gresham, Davis, Gregory, Worthy & Moore, Bond Davis and Marshall B. Miller, Jr., San Antonio, for petitioner.

Clark, Thomas, Winters & Shapiro, Barry K. Bishop, Austin, for respondent.

DANIEL, Justice.

The American Statesman, a newspaper publishing company, filed this suit against Missouri Pacific Railroad Company for damages alleged to have resulted from the negligence of the railroad company in running a boxcar into the steel scaffolding (tram) extending from the American Statesman's building over a spur track owned and operated by the Missouri Pacific. The principal question is whether the trial court should have found proximate cause as a matter of law as a result of American Statesman's negligent failure to provide a clearance of twenty-two feet beneath the structure as required by Article 6559a. ¹

A jury found that Missouri Pacific or its agent was negligent in assuring American Statesman that the tram, built with a clearance of 16' 4 , could accommodate any boxcar which would move under such tram and that such negligence was a proximate cause of American's damages. The jury also found negligence and proximate cause on the part of Missouri Pacific in moving the boxcar into the American Statesman's tram. On the other hand, the jury found that the Statesman's failure to construct the tram with a clearance of twenty-two feet, as required by statute, was negligence on the part of American Statesman. However, the jury found that such failure was not a proximate cause of American Statesman's damages. Both parties moved for a judgment on the verdict. The trial court entered judgment for the American Statesman. The Court of Civil Appeals affirmed. 538 S.W.2d 229. We reverse the judgments of the courts below and render judgment for Missouri Pacific.

On July 17, 1972, a boxcar, allegedly being "spotted" by a Missouri Pacific train crew, collided with the steel scaffolding which was attached to the American Statesman's building. The scaffolding or "tram" had been constructed to facilitate the movement of a press, consisting of eight units, each weighing approximately 50,000 pounds, to the new American Statesman building.

Prior to the July collision, Mr. Tim Brown, production director for the Statesman, attempted to contact Mr. Leo Murphy, Missouri Pacific's local freight agent, to discuss the construction of the tram across the spur track. Although Mr. Murphy was unable to meet with Mr. Brown at that time, Mr. John Henry, an assistant construction engineer for Missouri Pacific, visited the American Statesman's office and provided two employees of the newspaper with information on the 22 ft. clearance requirements mandated by Article 6559a. Thereafter, Mr. Brown determined that the newspaper could not feasibly construct the tram with a clearance of 22 feet. Mr. Murphy met with Mr. Brown, and, according to Mr. Brown, assured him that it was safe for the tram to be built with a 16' 4 clearance. The American Statesman contends that Mr. Murphy, as agent for the railroad, gave the newspaper authority to build the tram lower than the statutory clearance. Mr. Murphy denies that he gave the American Statesman authority to build the tram across the spur track, but merely that he assured the newspaper that a lower clearance would be adequate. The parties disagreed on the height of the minimum clearance that Mr. Murphy stated as being adequate.

Article 6559a provides:

"All bridges, viaducts, overheadways, footbridges, wires or other structures hereafter built over the tracks of a railway, or over the tracks of railroads, by the State, or by a county, municipality, a railroad company or other corporation, firm, partnership, or natural person, shall be placed not less than twenty-two (22) feet in the clear from the top of the rails of such track, or tracks to such structure or wire, or to the bottom of the lowest sill, girder or crossbeam, the lowest downward projection on the bridge, viaduct, overheadway, or footbridge or other structure."

Article 6559e provides for a penalty of not less than $100 nor more than $1000 for any violation of the clearance requirements. Suit for penalties under Article 6559e shall be filed by the Attorney General. Clearance deviations under Article 6559f may be granted only by the Texas Railroad Commission after proper notice to the Attorney General.

Missouri Pacific contends that the Statesman was negligent as a matter of law in constructing the structure at a lower elevation than required by law and that the facts and circumstances warrant a finding that such negligence was also a proximate cause of the accident as a matter of law. In Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), this Court discussed the doctrine of negligence per se and adopted the view of the Restatement (Second) of Torts, Sec. 288 B (1965):

"(1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself."

Thus, for negligence per se, there must (1) be a violation of a legislative enactment, (2) which is unexcused. The rule is also well settled in Texas that one who seeks to excuse a statutory violation must present some evidence of a permissible excuse for his statutory violation. L.M.B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973).

In Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972), this Court cited some of the permissible excuses for violation of legislative standards by quoting from the Restatement (Second) of Torts, Sec. 288 A (1965). Sec. 288 A provides that a violation of a statute may be excused (unless the enactment or regulation is constructed not to permit such excuse) when

(a) the violation is reasonable because of the actor's incapacity;

(b) he neither knows nor should have known of the occasion for compliance;

(c) he is unable after reasonable diligence or care to comply;

(d) he is confronted by an emergency not due to his own misconduct;

(e) compliance would involve a greater risk of harm to the actor or to others.

This Court in Impson approved of the general treatment of legally acceptable excuses cited above, noting that the applicable illustrations of the five categories were merely dictum. The evidence in this case establishes that the American Statesman knowingly violated the clearance statute, and the newspaper did not show a legally acceptable permissible excuse for the violation.

American Statesman contends that the doctrine of negligence per se is inapplicable for the benefit of Missouri Pacific in this case, not because of any excusable violations, but because the statute involved was not designed to protect railroad companies. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947), has generally been cited for the proposition that in order for a party to show negligence per se, it must belong to the class of persons which the statute is designed to protect. American Statesman contends that a statute imposing such severe penalties upon railway companies was not designed to protect the railroad. American Statesman also contends that the statute was not intended to prevent the type of incident that occurred here, but was intended to protect railroad employees who used to be required to work on top of cars. This argument is without merit. Where the Legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care, and an unexcused violation of the statute constitutes negligence or contributory negligence as a matter of law. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969). It should be noted that Article 6559a applies to the State and any county, municipality, railroad company, corporation, firm, partnership or natural person. The railroad company and the newspaper are within the class of persons covered and the type of accident that occurred here was one of the very types of accidents that the Legislature apparently sought to avoid in enacting Article 6559a.

The jury found that the American Statesman was negligent in constructing the tram with a clearance of less than twenty-two feet. No attack is made on that finding. Such construction was in violation of the statute and unexcused. Therefore, the plaintiff, American Statesman, is contributorily negligent per se. ² However, a finding of negligence per se only subjects the American Statesman to possible liability; it does not establish liability. In addition, a showing is required that such negligence was a proximate cause of the damages. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363 (1920). In other words, a liability does not attach to every act of negligence per se ; such liability only attaches when the injury or damages are a proximate result of that negligence. H. and T. C. Ry. Co. v. J. F. Wilson, 60 Tex. 142 (1883).

Whether we label the act or omission as negligence per se or common negligence, the rules for determining proximate cause are the same. Katz v. Southwestern Scrap Materials Co., 412 S.W.2d 685 (Tex.Civ.App.1967, no writ); Kenny v. El Paso Elec. Co., 371 S.W.2d 777 (Tex.Civ.App.1963, writ ref'd n. r. e.). Under Texas law, proximate cause consists of two elements: (1) cause in fact, and (2) foreseeability. Farley v. M. M. Cattle Co., 529 S.W.2d 751 (Tex.1975); East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.1970); Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957). Both elements must be present. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970). Cause in fact as an element of proximate cause means that the negligent act or omission was a substantial factor in bringing about the injury and...