Rio Grande, E. P. & S. F. R. Co. v. Dupree

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: Rio Grande, E. P. & S. F. R. Co. v. Dupree, 55 S.W.2d 522 (Tex. 1932)
• Decision Date: 22 December 1932
• Docket Number: No. 1595-5974.,1595-5974.
• Parties: RIO GRANDE, E. P. & S. F. R. CO. v. DUPREE et al.

55 S.W.2d 522

RIO GRANDE, E. P. & S. F. R. CO. v. DUPREE et al.

No. 1595-5974.

Commission of Appeals of Texas, Section A.

December 22, 1932.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Dora S. Dupree, for herself and as next friend of Joseph Dupree and another, minors, against the Rio Grande, El Paso & Santa Fe Railroad Company. A judgment for plaintiffs was affirmed by the Court of Civil Appeals [35 S.W.(2d) 809], and defendant brings error.

Affirmed.

Terry, Cavin & Mills, of Galveston, and Turney, Burges, Culwell & Pollard and A. H. Culwell, all of El Paso, for plaintiff in error.

Robert L. Holliday, and Henry T. Moore, both of El Paso, for defendants in error.

CRITZ, J.

This is a suit for damages. It originated in the district court of El Paso county, Tex. Mrs. Dora Dupree, for herself and as next friend for her two minor sons, Joseph and David Dupree, complained against Rio Grande, El Paso & Santa Fe Railroad Company on account of the death of Dr. W. A. Dupree, her deceased husband, who was the father of John and Joseph Dupree. Dr. Dupree's death resulted from a collision between a truck in which he was riding, and a locomotive of the railroad at a public crossing. The case was submitted to a jury in the district court on a general charge and resulted in a verdict for the plaintiffs for $50,000. The district court required a remittitur of $14,000 and judgment was finally entered against the railroad for $36,000 duly apportioned among the three plaintiffs. On appeal by the railroad this judgment was affirmed by the Court of Civil Appeals at El Paso. 35 S.W.(2d) 809. The railroad brings error.

We shall hereafter refer to the Duprees as plaintiffs, and to the railroad company as the railroad.

The plaintiffs' petition alleges certain acts of negligence on the part of the railroad resulting directly and proximately in Dr. Dupree's death. It is not necessary to detail such allegations here; it is sufficient to say that the verdict of the jury is amply sustained as to these matters by probative evidence in the record. In fact, the railroad does not question this conclusion.

The railroad company contends that the judgments of the Court of Civil Appeals and district court should be reversed for two reasons:

(a) Because the evidence shows as a matter of law that Dr. Dupree was himself guilty of negligence which directly and proximately contributed to his death.

(b) Because of certain alleged improper argument indulged in by plaintiffs' counsel while making his closing argument to the jury.

We shall consider the two contentions in the order in which they are stated.

In connection with the issue of contributory negligence, it is contended by the railroad that the locomotive which collided with the truck in which Dr. Dupree was riding at the time he was killed was pulling a train engaged in transporting interstate commerce, and therefore the rules and standards of negligence as laid down and announced by the United States Supreme Court must be applied in deciding the issues of negligence in the instant case.

It is settled that the Federal Employers' Liability Act (45 USCA §§ 51-59), with its amendments, and other federal laws applicable to railroad carriers supersede, in so far as they cover the same field, all state laws where the railroads and their employees are engaged in interstate commerce. Also in such cases the rules and standards of negligence as laid down and announced by the United States Supreme Court must be applied; and this even where such cases are adjudicated in state courts. On the other hand, it is equally as well settled that the Congress has not undertaken to enact any law governing the tort liability of railroads to third persons not in their employment, and where such cases are being adjudicated in state courts they are at liberty to apply their own rules and standards of negligence. Galveston, H. & S. A. Ry. Co. v. Wells (Tex. Sup.) 50 S.W.(2d) 247, and authorities there cited. The opinion in the Wells Case, supra, clearly states the reasons for the above holding, and exhaustively reviews the authorities on which it is based. No good purpose can be served by further discussion here.

It is undisputed that no relation of master and servant existed between Dr. Dupree and the railroad. It follows that we must determine the question as to whether Dr. Dupree was guilty of negligence contributing to his death according to the rules and standards laid down and announced by our own Supreme Court. At this point we deem it proper to say that at the time this writ was granted the Wells opinion, supra, had not been delivered, and our Supreme Court had not then directly decided the question above discussed.

We shall now proceed to determine the issue as to whether the undisputed evidence in this record shows as a matter of law that Dr. Dupree was himself guilty of negligence which directly and proximately caused, or contributed to cause, his death. The Court of Civil Appeals has made a very extended and comprehensive statement of the testimony of the various witnesses who testified touching the facts and circumstances of this deplorable accident, and, in the interest of brevity, we will not repeat such testimony here, but content ourselves with referring to and adopting that part of that opinion.

As we understand the testimony, it shows that Dr. Dupree and his son, John Dupree, were riding in the truck at the time of the accident; that it was not shown which one of them was doing the driving; that Dr. Dupree was killed instantly at the time of the collision, and John Dupree lived only a few minutes thereafter; and that at the time of the accident the crossing in question was unusually dangerous in that it was uphill, very rough and narrow, and had deep ditches on either side, thus requiring the driver of a motor vehicle to give close attention thereto in order to pass over it in safety. It was further shown that, at the time the accident occurred, the approaching train was, to some extent, obscured by salt cedar trees and other bushes, and a double line of telephone or telegraph poles. Also at the time a violent sand storm was raging, making it difficult for a person to see more than a few feet ahead. It was shown that the train was running at a high rate of speed under the circumstances at the time; that the whistle was not blown at the whistling post or at any other point where it would have constituted a warning; and that the bell was not rung as required by law. Also it was shown that such train was supposed to pass this crossing between 3:30 and 4 o'clock while on this occasion it passed about 1:30. All of the above facts are supported by the evidence, and are presumed to be true in support of the verdict of the jury.

On the other hand, the testimony shows that, at the place where the collision occurred, the track is straight for quite a distance; that a paved highway runs parallel with the track, and adjacent to the railroad right of way; that Dr. Dupree's home was a short distance from the highway and across the railroad; that he and his son, who was also killed, were both thoroughly familiar with the crossing; that the truck came first along the paved highway going in an opposite direction to that which the train in question was traveling; that, when the crossing was reached, the truck turned to the left and proceeded about 45 feet without stopping, to the track in the direction of the Dupree home; that the truck was traveling at the rate of about 10 miles per hour on the highway as it approached the crossing; that, when the truck reached the railroad track, the left front fender and wheel struck the locomotive at a point thereon back of the cylinder head, and about 10 feet from the pilot; that just before the impact the man who was sitting on the right in the truck grabbed the steering wheel; and that Dr. Dupree and his son were the only persons in the truck at the time.

From the above facts the railroad company contends that Dr. Dupree was, as a matter of law, guilty of negligence which directly and proximately contributed to his death. In connection with this contention the railroad further contends that the above facts show as a matter of law that Dr. Dupree approached the crossing in question without observing any of the natural laws of self-preservation and ran the truck in which he was riding heedlessly and recklessly into the side of the locomotive.

The effect of the jury's verdict is to find the railroad guilty of negligence which resulted in Dr. Dupree's...