Richards v. Southern Pac. Transp., 80-2240

• Decision Date: 20 January 1982
• Docket Number: No. 80-2240,80-2240
• Citation: 666 F.2d 99
• Parties: Linda RICHARDS and Dorothy Richards, Plaintiffs-Appellees, v. SOUTHERN PACIFIC TRANSPORTATION, Defendant-Appellant. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 99

666 F.2d 99

Linda RICHARDS and Dorothy Richards, Plaintiffs-Appellees, v. SOUTHERN PACIFIC TRANSPORTATION, Defendant-Appellant.

No. 80-2240.

United States Court of Appeals Fifth Circuit.

Unit A ^*

Jan. 20, 1982.

Matthews, Nowlin, MacFarlane & Barrett, Ferd C. Meyer, Jr., San Antonio, Tex., for defendant-appellant.

Byrd, Davis & Eisenberg, Mike Davis, Austin, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

At approximately 11:50 p. m., on November 25, 1977, a car driven by Owen Richards ran into the side of a Southern Pacific Transportation Company (Southern Pacific) train which was crossing the access road on which Richards was driving. Richards died several hours later from injuries sustained in the collision. Alleging that the collision resulting in Richards' death was directly and proximately caused by the negligence of Southern Pacific employees, Richards' wife and mother (plaintiffs) brought an action against Southern Pacific, under the Texas Survival Act, Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon), and the Texas Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. art. 4671 (Vernon). Jurisdiction was predicated on diversity of citizenship. 28 U.S.C. § 1332. The trial court held Southern Pacific liable for failing to put flares on the access road to warn of the presence of the train. Because we conclude that plaintiffs failed to establish that Southern Pacific had a duty, under Texas law, to put flares on the access road, we reverse the judgment of the trial court.

I. Statements of Facts.

Richards was proceeding north on the north-bound access road to Interstate Highway 10 (I.H. 10). The Southern Pacific train, consisting of three engines and seven loaded air dump cars, was transporting rock products from a McDonough Brothers gravel pit on the west side of the highway to a McDonough Brothers plant north-east of the highway. The record indicates that the tracks on which the train was operating cross the access road from under the highway to the west of the access road and then turn north on the east side of the access road. At the time of the collision, the second air dump car of the train was upon the highway; the three engines, which were leading the loaded air dump cars, were rounding the curve to the east of the access road and were headed the same general direction in which Richards was traveling. Richards' car struck the second air dump car of the train.

The trial court found that the train's only lights and warning signals were on the engines, which were approximately 210 feet beyond the scene of the collision, and that there were no flares on the roadway. The record further indicates that along the highway access road there were the following warning devices: (1) a black and yellow advance warning sign, facing northbound traffic, approximately 400 feet south of the crossing; (2) a fifty-two foot warning sign, painted on the surface of the access road, approximately 270 feet south of the crossing; and (3) standard reflectorized railroad crosstrack signs, facing oncoming traffic, just before the crossing. There was no form of artificial illumination at the crossing.

The trial court, in a non-jury trial, entered a judgment for Linda Richards in the amount of $180,000 and for Dorothy Richards in the amount of $30,000 on the basis of the following findings of fact:

(1) The railroad crossing involved was an extrahazardous one.

(2) Immediately prior to the accident made the basis of this suit, defendant's employees failed to place flares on the I.H. 10 access road to warn oncoming traffic of the presence of a train across the highway.

(3) The failure of the defendant's employees to place flares on the roadway constitutes negligence for which the defendant is legally responsible.

(4) The negligence of defendant's employees in failing to place flares upon the roadway was a direct and proximate cause of the accident made the basis of this suit.

(5) On the occasion in question, the decedent was a proximate cause of the accident and of his death.

(6) The negligence of the decedent was a proximate cause of the accident and of his death.

(7) As a direct and proximate result of the death of Owen Clifford Richards, plaintiffs have sustained the following damages:

(a) Lynda Richards, for the care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that she would have received from her husband during her lifetime had he lived-$300,000.

(b) Dorothy Richards, for the kindness, services, comfort, and attention that in reasonable probability she would have received from her son during her lifetime-$50,000.

(8) The percentage of the negligence that caused the occurrence to be attributable to each found to be negligent is:

(a) The defendant 60%

(b) The decedent 40%

Although the trial court's findings do not state the basis on which it found Richards contributorily negligent, there was evidence in the record that Richards had been drinking, that he may have been driving at a speed greater than the posted speed limit, and that, because of his position as McDonough Brothers' liaison with Southern Pacific, he was well aware that the train would be operating at the crossing on the night of the collision.

II. The Trial Court's Finding That The Crossing Was Extrahazardous.

Arguing that under Texas law there is no duty to provide extraordinary warnings that a train is occupying a crossing unless the crossing is "extrahazardous," Southern Pacific contends that the trial court erred in its findings that the railroad crossing involved in this case was extrahazardous, that the failure of Southern Pacific's employees to place flares on the roadway constitutes negligence for which Southern Pacific is legally responsible and that the negligence of Southern Pacific's employees in failing to place flares upon the roadway was a direct and proximate cause of the accident made the basis of this suit. ¹

In Fitch v. Missouri-Kansas-Texas Transportation Co., 441 F.2d 1, 2 (5th Cir. 1971), we summarized the Texas law with respect to the duty owed by a railroad to motorists approaching one of its crossings as follows:

Though every railroad crossing is tinged with danger, the common law and statutory duty of a railroad in Texas with respect to an ordinary crossing is simply to provide and maintain thereat one crossing sign " * * * with large and distinct letters placed thereon, to give notice of the proximity of the railroad and warn persons of the necessity of looking out for the cars." Tex.Rev.Civ.Stat.Ann. art. 6370 (1926); Karr v. Panhandle & S.F. Ry., 153 Tex. 25, 262 S.W.2d 925 (1953); Muniz v. Panhandle & S. F. Ry., 285 S.W.2d 809 (Tex.Civ.App.-Amarillo 1955, writ ref'd n.r.e.). With respect to an "extra hazardous" crossing, however, it is incumbent upon a railroad company to provide extraordinary means such as lights or signal bells to warn persons approaching its crossing or intersection. See, e.g., Fort Worth & D. Ry. Co. v. Williams, 375 S.W.2d 279 ((Tex.)1964); Texas & N. O. Ry. v. Compton, (135 Tex. 7) 136 S.W.2d 1113 (1940); Muniz v. Panhandle & S. F. Ry., supra; Lundberg v. Missouri-K. T. Ry., 232 S.W.2d 879 (Tex.Civ.App.-Waco 1950, writ ref'd n.r.e.); St. Louis Southwestern Ry. v. Barr, 148 S.W.2d 924 (Tex.Civ.App.-Dallas 1940, writ dism'd jdgmt. cor.); Thompson v. St. Louis Southwestern Ry., 55 S.W.2d 1084 (Tex.Civ.App.-Texarkana 1932, no writ). A railroad crossing is characterized as extrahazardous under Texas law when it is so perilous that prudent persons, in the exercise of ordinary care, cannot use it with safety in the absence of extraordinary warning devices. See, e.g., Texas & N. O. Ry. v. Compton, supra; Muniz v. Panhandle & S. F. Ry., supra. Since the degree of danger associated with a crossing is not constant but varies with the concurrent circumstances, "(w)hether or not any given set of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger or extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds." Fort Worth & D. Ry. v. Williams, supra, 375 S.W.2d at 283; Missouri-K-T Ry. v. Wagner, 400 S.W.2d 357, 360 (Tex.Civ.App.-Waco 1966, writ ref'd n.r.e.).

We remanded that case for a new trial, where the trial court failed to indicate to the jury the relationship between an extrahazardous crossing and the duty to employ extraordinary means to give warning, stating:

It is apparent from the summary of Texas law with which we began this discussion that a finding that M-K-T failed to provide extraordinary warning precautions is simply without legal consequence in the absence of a specific finding that the crossing in question was an extrahazardous one. The relationship between an extrahazardous crossing and the attendant duty to employ extraordinary means to give warning is central to a proper determination of the instant case.

Id. at 4.

In Fitch, an automobile collided with the lead gondola car of a train, id. at 2, the automobile and the train apparently having arrived at the crossing at substantially the same time. In 1978, the Texas Supreme Court applied the doctrines summarized in Fitch to a case in which, as in the present case, "a car (ran) into the side of a train that had already reached and was occupying the crossing." Missouri Pacific Railroad Co. v. Cooper, 563 S.W.2d 233, 235 (Tex.1978). "There was a light beam on the front engine which at the time of the accident was already about three fourths of a mile south of the crossing, and there was a light on the caboose. There were no other lights between the front and back of the train.... The weather at the time of the collision was foggy and damp." Id. at 234. As in this case, a driver approaching the...