Port Terminal R.R. Ass'n v. Richardson

• Decision Date: 14 February 1991
• Docket Number: No. C14-89-1176-CV,C14-89-1176-CV
• Citation: 808 S.W.2d 501
• Parties: PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. Marcella Ann RICHARDSON; Joyce Marcella Michael, Individually and as Next Friend of Leatrice Elaine Michael; Richard Gregory Michael, Jr.; Russell Keith Michael; and Melanie Ann Michael, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 501

808 S.W.2d 501

PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. Marcella Ann RICHARDSON; Joyce Marcella Michael,

Individually and as Next Friend of Leatrice Elaine Michael;

Richard Gregory Michael, Jr.; Russell Keith Michael; and

Melanie Ann Michael, Appellees.

No. C14-89-1176-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 14, 1991.

Rehearing Denied March 21, 1991.

Gordon A. Holloway, William A. Worthington, Ramon G. Viada, III, Kyle M. Rowley, Melanie Elwood, Houston, for appellant.

Carl Crow, Houston, Russell H. McMains, Corpus Christi, for appellees.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

The plaintiff below recovered for injuries arising from a collision between an automobile and a train at a railroad crossing. Appellant raises thirteen points of error and appellees raise one cross-point. The judgment of the trial court is affirmed.

The decedent, Richard Michael, had been an employee at the Rohm & Haas chemical plant for almost thirty years. Its private roadway connects the plant with Highway 225. This road intersects two parallel sets of railroad tracks north of the entrance gate to the plant. A yellow and black warning disk is posted 325 feet north of the crossing. On the northwest and southeast corners of the crossing are 30 foot signal masts containing the standard railroad crossbuck sign and red flashing lights. A warning sign on these masts advises drivers to "stop on red signal." On the date of the collision, there were mercury vapor lights mounted atop each signal to illuminate the crossing at night. The road is straight and flat. A line of oak trees flanks both sides of the road. Port Terminal Railroad Association (PTRA) operates the trains which cross the road approximately four or five times daily.

On the night of the accident, the decedent was leaving the plant, traveling south. At this time, PTRA was backing black tank cars in an easterly direction toward the crossing. The train foreman testified that PTRA rules required flagging a crossing when the train backs across the crossing. The train foreman testified that he flagged the crossing with an electric lantern in the center of the crossing, although other testimony indicated that he stood on the east side of the crossing. While the decedent approached the crossing from the north, another car was approaching from the south.

Appellees' expert, a traffic engineer, calculated that when the decedent was 375 feet from the crossing, the train car was 20 feet from the crossing, moving at 3-5 miles per hour. The decedent was traveling at 30-35 miles per hour. The oncoming car crossed the tracks and passed the decedent 200 feet north of the crossing. The driver of this vehicle testified he did not see the flagman or any red flashing lights, although others testified the signals were working. Based on skid marks and allowing for reaction time, appellees' expert calculated the decedent did not see the train until he was 148 feet from the crossing. At this point, the lead tank car was almost completely across the crossing. The decedent collided with the rear wheels of the lead car and was severely injured. He died two weeks later of his injuries.

The evidence further revealed that the decedent had vision problems. He was functionally blind in his right eye and had undergone corrective surgery to his left eye. The decedent's ophthalmologist testified that the decedent had 20/20 vision in his left eye with glasses. The decedent's family found his bloody, broken glasses in the automobile, indicating the decedent was wearing them when he hit the windshield.

Appellees sued PTRA and Rohm & Haas as the party responsible for maintaining the signal masts, alleging negligence and gross negligence. While the jury was deliberating, Rohm & Haas settled with appellees. The jury found PTRA negligent and grossly negligent by inadequately flagging the crossing and by failing to control the crossing. The jury exonerated Rohm & Haas. The jury apportioned ninety percent of the fault to PTRA and ten percent to the decedent. PTRA filed a motion for judgment n.o.v. The trial court granted this motion as to the finding of gross negligence and struck the punitive damages award.

In points of error one, two, and three, PTRA claims error in the submission of jury questions 1(1) and 2(1) regarding PTRA's inadequate flagging of the crossing. PTRA additionally claims under point four that no evidence or insufficient evidence supported the jury's finding of an extra-hazardous crossing, and thus, PTRA had no duty to use extraordinary means to warn drivers of the approaching train.

Because every railroad crossing is hazardous, statutes set out the minimum standard of safe conduct for both drivers and train operators. Missouri Pac. R.R. Co. v. Shaw, 620 S.W.2d 161, 163 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.). The operator of a train must erect crossbuck signs at railroad crossings and must sound a bell and whistle to warn drivers of an approaching train. TEX.REV.CIV.STAT.ANN. art. 6370-6371 (Vernon 1925 and Vernon Supp.1991). See Shaw, 620 S.W.2d at 163. Even if there is statutory compliance, the train operator may be liable for negligent operation or warnings that result in a collision with a vehicle. See id. at 164.

A driver of a vehicle using a crossing must exercise ordinary care to discover and avoid approaching trains. See id. Similarly, the train operator must exercise reasonable care and caution to avoid collisions with vehicles. See id. A train operator has the duty to use extraordinary measures to warn drivers of an approaching train only if the railroad crossing is "extra-hazardous." See Osuna v. Southern Pac. R.R., 641 S.W.2d 229, 230 (Tex.1982); Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 235 (Tex.1978). These "extraordinary" measures may include signal bells or lights at the crossing, lights on the train cars, or flagging the crossing. See Texas & N.O.R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, 1115 (1940).

A crossing is extra-hazardous if it is "so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the usual cross arm sign." See Cooper, 563 S.W.2d at 235. Poor visibility resulting from darkness or fog does not render a crossing extra-hazardous. See id.; Missouri-Kansas-Texas R.R. Co. v. Bernhardt, 418 S.W.2d 368, 374 (Tex.Civ.App.--Austin 1967, writ ref'd n.r.e.). In Bernhardt, the court stated:

It is the settled rule in this state that a train lawfully standing on a crossing at night does not of itself cause the crossing to be more than ordinarily dangerous. If the night is dark and foggy and visibility is bad, these additional conditions will not, even when coupled with the presence of the train, make the crossing an extrahazardous nighttime crossing.

Bernhardt, 418 S.W.2d at 374.

A crossing may be classified as extra-hazardous, however, if a permanent or temporary condition obstructs a driver's view of an approaching train. See Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925, 930 (1953). If a temporary condition is alleged, the condition "must be due to some act or omission of the railway employees, because only under those circumstances could the defendant know or fairly be charged with knowledge that the crossing is temporarily extra-hazardous." Id.

Even if a crossing is extra-hazardous, Texas courts hold as a matter of law that "the presence of railroad cars occupying the crossing directly in front of the driver" is a sufficient additional warning. Osuna, 641 S.W.2d at 230. In Texas City Terminal Ry. Co. v. Allen, 181 S.W.2d 727 (Tex.Civ.App.--Galveston 1944, writ ref'd), the court offered the following explanation of the "occupied crossing" rule:

While it is the uniformly recognized rule in this state that, where a railroad crossing is more than ordinarily dangerous to night time travelers, it is incumbent upon the railroad company to take more than ordinary measures to apprise travelers approaching the crossing that such dangers exist, our courts under facts similar in all material respects to the facts in the instant case, have held that the operatives of trains could properly assume that persons traveling upon the highway would exercise the care incumbent upon them in the hazards of the night to keep their cars under control so as to be able to avoid colliding with objects which should have been disclosed by their headlights.

Id. at 729 (citations omitted).

Under Texas case law, PTRA owed a duty to use extraordinary warnings, such as flagging the crossing, only if the crossing was extra-hazardous. In point of error four, PTRA challenges the legal and factual sufficiency of the evidence supporting the jury's finding of an extra-hazardous crossing. Where a party claims no evidence supports a finding, we may consider only the evidence and inferences supporting the challenged finding, disregarding all contrary evidence and inferences. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). The only evidence tending to support the finding of extra-hazardous crossing was the presence of trees on both sides of the roadway that restricted motorists' view of approaching trains. This is more than a scintilla of evidence. See Southwest Stone Co. v. Symons, 237 S.W.2d 380, 384 (Tex.Civ.App.--Fort Worth 1951, writ ref'd n.r.e.). PTRA's claim of no evidence is overruled.

In reviewing a factual sufficiency challenge, all of the evidence must be considered and the finding set aside "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The evidence showed that, at the time of the collision, visibility was poor due to darkness, poor lighting at the crossing, and trees on both sides of the road. This evidence is sufficient to support the jury's finding. Point of error four is overruled.

In point...