Osuna v. Southern Pac. R. R.
| Decision Date | 07 January 1982 |
| Docket Number | No. 6283,6283 |
| Citation | 627 S.W.2d 245 |
| Parties | Eva OSUNA, Appellant, v. SOUTHERN PACIFIC RAILROAD (Southern Pacific Transportation Company), Appellee. |
| Court | Texas Court of Appeals |
Bob Andrews, Austin, for appellant.
Robert B. Burns, Jr., Thomas A. Broussard, McKay & Burns, P.C., Austin, for appellee.
This is a railroad crossing accident case brought by plaintiff-appellant Mrs. Eva Osuna against Southern Pacific Transportation Company (sued as Southern Pacific Railroad). Summary judgment was rendered that plaintiff take nothing. Plaintiff appealed. We affirm the judgment.
To establish its right to summary judgment, defendant had the burden of establishing that no material fact issue existed in the case and that it was entitled to judgment as a matter of law. Rule 166-A(c), Vernon's Tex.Rules Civ.Proc.; Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 494 (Tex.1978). In determining the propriety of a summary judgment, both in the trial court and on appeal, all conflicts in the evidence are disregarded, the proof which tends to support the position of the party opposing the motion is accepted as true, and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972).
The accident in question occurred at approximately 1:00 A.M. on Monday, November 7, 1977, where defendant's single set of tracks cross U. S. Highway 183 about 1.3 miles north of the City of Leander, in Williamson County. Defendant's train, composed of four diesel engines and ninety cars, was crossing the highway. Plaintiff collided with the forty-first and forty-second cars. It is undisputed that automatic signal lights maintained by defendant for many years at the crossing to warn motorists of approaching and crossing trains were not working at the time of the accident, at least not on the side of plaintiff's approach. Plaintiff's basic contentions for reversal are that the summary judgment record does not conclusively establish (1) that the crossing was not extra hazardous and (2) that defendant was not negligent in failing to maintain the automatic signal in proper working condition or provide other adequate warning of the train at the crossing. Defendant's basic contentions are that the record shows as a matter of law that the crossing was not unusually hazardous and that, accordingly, defendant owed no duty to provide extraordinary warnings at the crossing.
Defendant's railroad ran generally east and west; and the highway ran generally north and south. However, the angle of their crossing was approximately 45o at the southeast and northwest corners. The paved portion of the highway was approximately 48 feet wide; and it was composed of four lanes, providing two lanes for traffic traveling in either direction. Plaintiff was traveling north, alone in her car, in the lane nearest the center of the highway. 600 feet from the crossing, the usual yellow round metal sign with an "X" and an "R" on it was stationed off the highway on plaintiff's side facing her. 350 feet south of the crossing, a large "X" with an "R" on each side was painted on the surface of the northbound lanes, spanning most of both lanes. Near the south side of the tracks and just off the shoulder of the highway on plaintiff's side there was the familiar cross-board sign erected on a white pole with the word "RAILROAD" written in black on one of the boards and the word "CROSSING" written on the other, facing northbound highway traffic. An automatic signal device with two lights was stationed on the pole immediately below the cross-boards. Plaintiff had crossed this crossing several times, was familiar with all of these warnings, knew they were there, and saw them as she approached the tracks. These warning signs located along the highway were held to be adequate warnings for the dangers of an ordinary rural railroad crossing, in Missouri Pac. R. Co. v. Cooper, 563 S.W.2d 233, 235 (Tex.1978), where the court noted that the presence of railroad cars already occupying the crossing and directly in front of the driver in that case (also a night time accident) was an additional warning of danger. The court said, "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." Whether the circumstances surrounding a crossing at a particular time mark the crossing as extra hazardous is "a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds." Fort Worth & Denver Railway Company v. Williams, 375 S.W.2d 279, 283 (Tex.1964).
The primary question for our decision is this: Does the summary judgment record conclusively establish that the crossing in our case was not more than ordinarily hazardous as a nighttime crossing at the time of the accident in question? We hold that it does.
Plaintiff was driving her 1970 Chevrolet automobile at the time of the collision. She was 40 years of age, and she had been driving cars for 20 years. The headlights on her car were on bright, and her speed was about 55 miles per hour, her usual speed on highway travel. The highway south of the crossing is rather "curvy," and at the location of the round yellow sign 600 feet south of the crossing the highway begins a gentle curve to the right for northbound traffic which continues to the crossing. The highway inclines slightly from the sign to the crossing, but the railroad tracks are on a level with the road at the crossing, and there was nothing along the roadway that obstructed plaintiff's view of the crossing from the sign. Photographs made on the day of the accident show that in the daytime the crossing is plainly visible from the yellow sign, although, because of the curve, the view is partially across the right shoulder of the road.
Because of the curve, at the location of the yellow sign, the headlights on plaintiff's car did not shine on the crossing. However, plaintiff testified in her deposition that at approximately the location of the warning painted on the pavement (approximately 350 feet from the crossing) she could see in her headlights the white pole at the crossing which supported the cross boards and the automatic lights. From this location, at her speed, she said she could have safely stopped in time to avoid the collision if she had seen the train. As we have said, plaintiff ran into the forty-first and forty-second cars of defendant's ninety-car train. The record shows that, with the exception of the eleventh car, all of the cars in the train were "open hoppers" which have side walls ten to twelve feet high and have the general appearance of box cars. The only reasonable inference that may be drawn from these circumstances is...
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