Pate v. Southern Pac. Transp. Co.

• Decision Date: 21 December 1977
• Docket Number: No. 1706,1706
• Citation: 567 S.W.2d 805
• Parties: Sarah H. PATE et al., Appellants, v. SOUTHERN PACIFIC TRANSPORTATION CO., et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 805

567 S.W.2d 805

Sarah H. PATE et al., Appellants, v. SOUTHERN PACIFIC TRANSPORTATION CO., et al., Appellees.

No. 1706.

Court of Civil Appeals of Texas,Houston (14th Dist.).

Dec. 21, 1977.

Rehearing Denied June 21, 1978 (with opinion).

Second Rehearing Denied July 14, 1978.

James H. Brannon, Schmidt & Matthews, Houston, for appellants.

Randall A. Hopkins, Ronald L. Palmer, Baker & Botts, Russell H. McMains, Fulbright & Jaworski, Houston, for appellees.

COULSON, Justice.

This is an appeal from a judgment entered non obstante veredicto in favor of the defendants in a wrongful death and survival action.

On July 13, 1967 Edwin O. Schwarz, an employee of Theobold Trucking Company, failed to stop the dump truck he was driving at a stop sign. Because of this failure a car driven by Virginia Snelling was forced to make an abrupt stop to avoid hitting Schwartz's truck, which, in turn, caused the pickup truck following Snelling's car to stop on a Southern Pacific railroad crossing. For some undetermined reason, the pickup stalled after this emergency stop and its driver, Carl H. Pate, was unable to restart it. As all of this occurred a Southern Pacific train, operated by C. F. Lykke, was approaching the crossing. Although the train was a considerable distance from the crossing when the pickup stalled, as Pate repeatedly tried to restart it, the train drew nearer. Finally, Pate abandoned the pickup and in an attempt to save his life ran down the tracks, away from the train. Unfortunately, the train collided with the pickup, pushed it a short way, and threw it off onto Pate. Pate was seriously injured and eventually died.

In 1969 the plaintiffs, Mrs. Sarah H. Pate, the deceased's wife (individually and as representative of her husband's estate, and as next friend of their minor child, Jerri Lu Pate), and Thomas Pate and Mrs. Frank Trubo, the deceased's adult children, filed a wrongful death and survival action against Southern Pacific Transportation Company, C. F. Lykke, Theobold Trucking Company, W. D. Theobold, and Edwin O. Schwarz. Lykke and Schwarz were subsequently dropped as defendants. In March 1977, following Theobold's unsuccessful venue appeal, reported in Theobold v. Pate, 542 S.W.2d 460 (Tex.Civ.App. Tyler 1976, writ dism'd), a trial on the merits was held. The jury found that the truck company and the railroad, but not Pate, were negligent, that Schwarz was within the scope of his employment at the time the accident occurred, and awarded $179,950.00 in damages to the various plaintiffs. Southern Pacific and Theobold Trucking both moved for judgment non obstante veredicto. This was granted and the plaintiffs have appealed. We affirm as to defendants Theobold Trucking Company and W. D. Theobold, and as to the award to the adult children of the deceased, but reverse and render as to the other defendant, Southern Pacific Transportation Company.

A court may enter judgment non obstante veredicto if the material jury findings are without support in the evidence or are contrary to the conclusive evidence. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942). All evidence must be viewed in the light most favorable to the jury's findings. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.Sup. 1974). Applying these rules we find that the trial court was correct in granting judgment non obstante veredicto as to Theobold Trucking Company and W. D. Theobold, and in refusing to award recovery to the deceased's adult children, Thomas Pate and Mrs. Frank Turbo.

In order to sustain recovery against the truck company it was necessary for the jury to find that Schwarz was acting within the scope of his employment when the accident occurred. This could be shown either by direct evidence or by resort to a presumption. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.Sup.1971). The plaintiffs chose the latter method. As such they were required to prove that Schwarz was an employee of Theobold and that Theobold owned the truck. Robertson Tank Lines, Inc. v. Van Cleave, supra. While there is abundant evidence that Schwarz was Theobold's employee, there is none that it was Theobold's truck. The failure to prove ownership precludes operation of the presumption which would support the jury's finding. Since there is no direct evidence which would support that finding, it must fall, and with it, any recovery against Theobold Trucking or W. D. Theobold.

Similarly, there is no probative evidence to support an award to the deceased's adult children. Adult children may recover for the death of their parent, Hartzell Propeller Company v. Alexander, 485 S.W.2d 943 (Tex.Civ.App. Waco, 1972, writ ref'd n. r. e.), but there must be evidence to support that recovery. Here there was none.

While we agree with the trial court's action on these matters, we believe that it erred in entering judgment non obstante veredicto in favor of Southern Pacific, and, further, that despite the cross-points brought by Southern Pacific, judgment on the verdict should be rendered against it.

Initially, we hold that the jury's failure to find Pate contributorily negligent was proper. It has never been suggested that Pate's negligence caused the pickup to become stalled on the railroad tracks. Further, Southern Pacific has admitted that when he abandoned the truck he had "sufficient time . . . to place himself in a position of safety," so there can be no allegations that he unreasonably delayed his exit. Instead, the claim is that he negligently failed to place himself in a position of safety after leaving the truck by failing to go to a place where he would not be struck by the truck. In particular, Southern Pacific claims that Pate should not have run away from the train as he did, in a direction roughly parallel to the tracks, since he should have known that this was the direction the truck would most likely go after being struck by the train.

Stated abstractly, Southern Pacific's allegation is that the failure to anticipate the flight direction of an object which a person knows will be struck by a railroad train coupled with the failure to remove himself from that anticipated path of flight, constitutes negligence. Given the difficulty of making these calculations in the presence of such relative uncertainties as the pickup truck's weight, its angle and position on the crossing, and the speed and weight of the train, it cannot be said as a matter of law that Pate's failure to anticipate the direction and distance the pickup would move after being hit constituted negligence, nor can it be said that the great weight and preponderance of the evidence demands such a finding.

In attempting to establish its position, Southern Pacific cites a number of cases which hold that a person who steps or drives in front of a moving train is negligent as a matter of law....