Panhandle & Santa Fe Ry. Co. v. Karr

• Decision Date: 09 February 1953
• Docket Number: No. 6273,6273
• Citation: 257 S.W.2d 486
• Parties: PANHANDLE & SANTA FE RY. CO. v. KARR et al. . Jan., 26, 1953. Rehearing Denied
• Court: Texas Court of Appeals

Page 486

257 S.W.2d 486

PANHANDLE & SANTA FE RY. CO. v. KARR et al.

No. 6273.

Court of Civil Appeals of Texas, Amarillo.

Jan., 26, 1953.

Rehearing Denied Feb. 9, 1953.

Lewis Jeffrey, Amarillo, for appellant.

Ratliff, Conner & Walker, Spur; L. A. Wicks, Sr., Ralls, for appellees.

PITTS, Chief Justice.

This is a suit for personal and property damages growing out of a collision that occurred between a motor vehicle and a moving passenger train at the intersection of the paved farm-to-market road number 400 with Panhandle and Santa Fe single line track railway in Lubbock County, Texas, about 1 1/4 miles west and a little north of Slaton soon after dark at 7:14 p. m. o'clock on October 12, 1951. J. B. Karr, a tenant farmer of Dickens County, filed this suit for himself and as next friend of four of his minor children therein named seeking such damages against appellant, Panhandle and Sante Fe Railway Company. Plaintiffs as appellees herein alleged in part that the railroad crossing at the said intersection was an extra hazardous crossing, more than ordinarily dangerous to nighttime travelers and that it is so peculiarly dangerous that prudent persons travelling over the said road at the said intersection at nighttime cannot use the same with safety unless extraordinary means are there provided to protect such travelers. Appellees further pleaded that the foregoing alleged facts were known to appellant or, in the exercise of ordinary care should have been known to it, and they alleged negligence on the part of appellant because of its failure to provide the required extraordinary means at the said crossing. Appellant answered by joining issues with appellees on the matters pleaded by them and alleged negligence of the occupants of the said motor vehicle and contributory negligence and negligence as a matter of law on the part of J. B. Karr, the operator of the motor vehicle.

The case was tried before a jury and judgment was rendered for appellees upon the jury verdict awarding to J. B. Karr the sum of $6,000 because of injuries sustained by his wife, Inez Karr, $500 because of his own injuries sustained and $100 was awarded to each of the four minor children because of the injuries they each sustained. It was agreed by stipulation that the damage done to the 1947 four door Chevrolet sedan involved in the collision and owned by J. B. Karr was $885, for which sum judgment was also awarded. Appellant perfected its appeal from the judgment and has presented ten points of error.

The jury verdict and the trial court's judgment thereon awarding damages against appellant were based principally upon the alleged negligence of appellant's failure to provide extraordinary means for the protection of nighttime travelers at the alleged extra hazardous railroad crossing. However the jury also found that the crossing in question was an extra hazardous one. Appellant has challenged the sufficiency of the evidence to support such a charge presented by the pleadings of appellees, such issues of fact found by the jury and such a judgment based thereon by the trial court.

It is common knowledge and has been many times judicially recognized that every railroad crossing in use is a place of danger. Yet the common law and statutory duty of a railroad in Texas with respect to an ordinary crossing is not greater than to provide and maintain thereat one crossing sign or signal of the type prescribed by statute, Vernon's Ann.Civ.St. Article 6370, which kind of sign was conclusively proven to be present at the crossing in question and at the time in question. A railroad crossing is not extra hazardous unless it is so unusually and peculidarly dangerous that prudent persons, in the exercise of ordinary care, could not use it with safety without extraordinary means, over and above the usual sign or signal, having been there provided to warn the approaching travelers and protect them from danger. By an unbroken line of authorities the rule has been well established in Texas that a railroad is under no obligation to provide extraordinary means to warn persons approaching its crossings or intersections with public roads and highways unless the said crossing or intersection is more than ordinarily hazardous. St. Louis Southwestern Ry. Co. of Texas v. Barr, Tex.Civ.App., 148 S.W.2d 924; Lundberg v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 232 S.W.2d 879; Thompson v. St. Louis Southwestern Ry. Co. of Texas, Tex.Civ.App., 55 S.W.2d 1084; Robinson v. Houston Belt & Terminal Ry. Co., Tex.Civ.App., 23 S.W.2d 894; Missouri, K. & T. Ry. Co. of Texas v. Magee, 92 Tex. 616, 50 S.W. 1013.

Before any higher duty attaches on the part of the railroad, the burden is upon him who complains to establish by competent evidence that the railroad crossing is attended by such unusual or extraordinary dangers as to make its use hazardous to a prudent person in the exercise of ordinary care unless extra precautions, more than the usual crossing sign, are provided for his safety. Before a jury is warranted in finding that a railroad is negligent in its failure to provide extraordinary means to warn the travelers over one of its crossings, it must first be established by competent evidence that such a crossing is more than ordinarily hazardous by an obstruction of some sort or by the configuration of the land about it, or that the crossing is a much travelled one so that the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of confusion incident to a busy railroad area, or by some other such causes that would prevent a reasonably prudent person in the exercise of ordinary care from using the crossing with safety. Texas & N. O. R. Co. v. Beard, Tex.Civ.App., 91 S.W.2d 1080, writ refused.

The record before us reveals that the controlling facts with reference to the alleged extra hazardous crossing being here considered are not materially controverted. The railroad crossing in question is situated in the country at a place where the land is comparatively level and there is nothing in the immediate area to obstruct the view of the railroad bed and track at the crossing. The railroad right of way is 100 feet wide and the bed and track are level with the surface of the land at the intersection and the same is elevated a little above the surface in some places immediately west of the crossing. The paved road runs north and south while the railroad runs generally east and west but varies a little making it run slightly southeast and northwest. Parallel with the railroad and 100 feet south of it is the Lubbock-Slaton highway, which is a paved State and Federal Highway carrying much more traffic than the farm-to-market road number 400. The said farm-to-market road intersects the Lubbock-Slaton highway only 100 feet south of the point of its intersection with the railroad. The railroad track is elevated a little above the Lubbock-Slaton highway for some distance west of the crossing in question. The farm-to-market road crosses the Lubbock-Slaton highway after crossing the railroad but it jogs to the west a little at the intersection with the said highway before it continues south. Appellees approached the intersection from the north, travelling on the paved farm-to-market road, which is substantially straight for some distance north of the intersection. The said paved road does not cross the railroad at right angles but it approaches the track at an angle of 63 between its west edge and the railroad on appellees' right as they approach the intersection. However, 111 feet north of the intersection the said road makes a slight curve leaving a 55 angle between it and the railroad for some distance. J. B. Karr, while operating his automobile, had been following another automobile operated by witness Joe Long for several miles, both of them driving at a rate of 40 to 50 miles per hour. The sky was clear on the occasion and the weather was calm except possibly for some wind blowing from the south. Karr and Long, both of whom lived at Spur, Texas, were taking their families to Slaton to see a high school boys' football game to be played between Spur and Slaton. The night was dark and Karr had driven for some time with his lights dim to prevent them from blinding Long. As both automobiles approached the intersection they slowed down to 12 or 15 miles per hour. At the same time appellant's 15-car passenger train, with every car well lighted and two headlights shining, visible for more than a mile from the crossing down a single track line, was approaching the intersection at a high rate of speed from the west and at a distance of approximately 1355 feet away with its automatic bell ringing continuously and the whistle blowing almost constant blasts from the whistle board at 1355 feet away to the crossing. The train had a regular stationary headlight about 12 feet high and also what is known as a 'gyro' light on the front of the train moving back and forth, throwing its light from the ground on one side, then overhead forming an arc or a bow-shape in the sky and then throwing its light to the ground on the other side, then often repeating the same movement, back and forth, giving light for several hundred feet in front of the train and for some distance on each side of it. Others in that vicinity saw the train lights and heard its other signals. The headlights of the approaching train were visible to a traveler on the farm-to-market road for a distance of one-half mile north of the railroad crossing while the train was a mile or more west of the crossing, yet could be distinctly seen all along the line to the crossing. Long, operator of the automobile in the lead, heard the signals immeidately before reaching the crossing and safely crossed over it, while the train was estimated to be from 300 feet to 800 feet away. Karr, while driving 50 to 65 feet...