Panhandle & Santa Fe Ry. Co. v. Liscomb

• Decision Date: 30 January 1963
• Docket Number: No. 5562,5562
• Citation: 365 S.W.2d 190
• Parties: PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. N. R. LISCOMB et al., Appellees.
• Court: Texas Court of Appeals

Page 190

365 S.W.2d 190

PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. N. R. LISCOMB et al., Appellees.

No. 5562.

Court of Civil Appeals of Texas, El Paso.

Jan. 30, 1963.

Rehearing Denied March 6, 1963.

Mays, Leonard, Moore & Dickson, Sweetwater, J. M. Preston, Pecos, for appellant.

Finley & Scogin, Kermit, Royal Hart, Richard W. Davis, Upton, Upton, Baker & Griffis, San Angelo, Walker F. Means, Robert S. Kent, Pecos, for appellees.

CLAYTON, Justice.

This is a 'blocked crossing' case arising out of a collision between a truck-tractor pulling a tank semi-trailer being driven by William Lee Michum and a tank car in appellant's train, in which collision Michum, was killed. Michum was an employee of N. R. Liscomb, who filed suit against appellant for damage to the truck and trailer, wherein Liscomb's insurance carrier intervened. In a separate suit, Michum's surviving wife and two minor children filed suit against appellant for damages growing out of Michum's death, and in this suit Liscomb's Workmen's Compensation carrier intervened. These suits were consolidated for trial.

The collision occurred just past midnight and in the early morning of December 22, 1959 at appellant's spur track which crosses a farm to market road No. 652 at a slight angle near the town of Orla, in Reeves County, Texas. The farm to market road runs generally east and west, and the spur track approximately north and south. We consider the following facts pertinent to the decision we must reach in this case:

The deceased lived in the vicinity of Orla. His employer lived and had his place of business in Orla. The employer was engaged in road work and water hauling and in connection with the latter occupation used the truck-tractor and tank trailer involved in the collision. In the late evening of December 21, 1959 the deceased left his employer's place of business in the truck and trailer to deliver the last load of water for the evening. He proceeded east on Farm Road No. 652 and of necessity traversed the appellant's spur track crossing which was a little over a half a mile to the east from his employer's place of business. The deceased had been over this crossing many times, both in daytime and at night-time.

After delivering the load of water, deceased was returning to Orla, proceeding in a westerly direction from the east, along Road 652. At a distance of something over 430 feet east of the crossing there was an 'early warning' sign advising of the railroad crossing, and just before the crossing to the east there was a standard 'reflectorized' crossing sign. For a little over nine-tenths of a mile to the east from the crossing, the road is perfectly straight and on a slight upgrade toward the crossing of about seven and 7/8 inches for each 100 feet horizontally. There were no buildings or other obstructions to the eye-sight on the east side of the crossing, the area being 'good and clear'. At the time of this accident there were no street lights in the town of Orla to confuse the vision, and the closest mountain was 26 miles away. Although the night was described as 'dark', there were no adverse weather conditions. One of the witnesses described the night as a 'cold still night' and stated 'you could see quite a ways.' The highway was of black asphalt. As deceased approached this crossing, appellant's employees were slowly (four miles or less per hour) backing a switch-engine with a string of eleven railroad cars across the road toward a loading rack which ran along the west side of the track. A conductor for the appellant was at the crossing to see that it was clear as the string of cars backed in a northerly direction across the road, after which he went to the loading rack to make a coupling between the cars in the train and some cars already at the loading rack. As the train slowly backed toward the loading rack the deceased ran his truck into the fourth car from the north end of the string of railroad cars, this car being a tank car which was completely across the highway at the time. There were seven cars and the engine south of the car that was struck. The engine had headlights on each end that contained two sealed beams, each burning. It had two 'classification' lights on the front end; four lights for the engine numbers, one on each corner of the engine; the gauge lights in the cab, and two ground lights under the cab deck--all burning. As the train started backing over the highway the regular crossing whistle signal was given and the engine bell was set to ringing constantly. While the train was on the crossing, the lights of the oncoming truck could be seen, possibly 'when it first came around the curve', a little more than nine-tenths of a mile to the east.

Both the tank-trailer and the tank car involved in this collision were empty at the time. The tractor with its equipment weighed in the neighborhood of 11,000 pounds, and the tank-trailer it pulled weighed from 6,500 to 7,200 pounds, or a combined weight of 17,500 to 18,200 pounds. The tank car weighed 66,200 pounds. The tank car was black with the word 'BEACON' painted on the sides in white letters. The letters in this word were horizontally two feet across and vertically three feet high, extending a distance along the body of the car of 23 feet. The bottom of these letters was six feet 7 and 13/16 of an inch from the top of the rails. There were other, smaller, letters and numbers painted on the sides of the car. The eye-level of a person of normal height, as he sat on the seat of the truck-tractor, would be about five feet 6 or 7 inches above the ground. Investigation showed that a 'Beacon' tank car could be seen at night in the light of standard vehicle headlights at distances of from 600 to 750 feet.

The motor of the truck-tractor had a 'governor' on it set at 58 miles an hour. The lights and the brakes on the tractor were in good condition, but the brakes on the tank-trailer 'weren't too good'. A witness with a Bachelor of Science degree, who had made a study of kinetics, was called by the appellees and he estimated the speed of the tractor and tank-trailer at the time of the collision as approximately 39 miles per hour. A witness called by the appellant who held Bachelor of Science, Master of Science and Doctor of Philosophy degrees scientifically estimated the speed of the truck and tank-trailer at 61 miles per hour, or 'right in the 60 mile an hour range'. The appellant called a Texas highway patrolman who investigated the accident, and he estimated such speed as between 55 and 60 miles an hour. The appellant called a deputy sheriff, formerly a Texas highway patrolman, who also investigated the accident, and he estimated such speed as about 60 miles an hour. The cab of the truck-tractor was crushed in the collision and burned. After the deceased was removed from the cab his right shoe sole was still on the accelerator and his left shoe sole was on the floor-board of the cab between the seat and the clutch. There were no skid marks on the pavement.

It has been stated that the tank such which was struck by the truck had an empty weight of 66,200 pounds. It rested on 'couplings' or 'couplers' at each end of the tank over the 'trucks' of the car which include the wheels at each end of the car. The tank is held on the trucks by center castings, twelve inches in diameter and about two inches deep, through which center pins of iron or steel are run on down through the couplings, which are eleven inches deep. The force of the impact by the truck-tractor and semi-trailer raised the tank completely off the trucks of the tank car--a height of 18 to 21 inches--and it came to rest on the highway west of the tracks a distance of approximately fifteen feet at the north end of the tank and four feet at the south end. The center pins were bent. One of the tank car trucks, weighing 7,240 pounds, was pushed off the tracks. The connecting pin on the tank semi-trailer was sheared off and the trailer went up and over the cab of the truck, crushing it and probably striking the tank car itself. The truck-tractor was demolished.

It was stipulated at the trial that there were no stationary mechanical devices of warning of appellant's at the time and place of the collision.

Testimony was introduced by appellees for the purpose of showing that this crossing was more than ordinarily dangerous as a night-time crossing. There was one collision of an automobile with a box car at this crossing in 1955 at 11:30 one night. Investigation revealed that the automobile was travelling west at 70 miles per hour. No claim or lawsuit followed this collision.

There was a 'near miss' between a tractor, pulling a semi-trailer, and a tank car on this crossing in June of 1959. This occurred at night between twelve and one o'clock, and the highway was 'a little bit slick' after a little rain, but visibility was good. The vehicle was travelling west at a rate of 40 to 50 miles an hour, the driver saw the tank car from 115 or 120 feet away and stopped on slick pavement in time to avoid a collision. The driver of the vehicle had gone over this crossing probably a thousand times from March till September of 1959, and the related occurrence was the only time he had seen a train stopped on the crossing.

Another witness testified to a 'near miss' at night-time on April 30, 1958 while he was driving a truck and tank-trailer containing 112 barrels of water in a westerly direction at about 30 to 35 miles per hour. The driver saw the engine of a train approaching the crossing about 60 feet away, applied his brakes and turned off the highway into solid sand and his vehicle hit a post. The truck stopped so close to the engine 'that you couldn't have got between it and the engine'. The driver testified that going from east to west on the highway at night, he had to turn off his lights to see if there was a beam from the headlight of an engine to disclose the presence of a train approaching the...