Robinson v. Gulf, C. & S. F. Ry. Co.

• Citation: 325 S.W.2d 432
• Decision Date: 15 May 1959
• Docket Number: No. 15998,15998
• Parties: Helen Mary ROBINSON, Adm'x, Appellant, v. GULF, COLORADO & SANTA FE RAILWAY CO., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 432

325 S.W.2d 432

Helen Mary ROBINSON, Adm'x, Appellant, v. GULF, COLORADO & SANTA FE RAILWAY CO., Appellee.

No. 15998.

Court of Civil Appeals of Texas, Fort Worth.

May 15, 1959.

Rehearing Denied June 26, 1959.

Cantey, Hanger, Johnson, Scarborough & Gooch, and Frank E. Crumley, Fort Worth, Akin & Vial and Henry D. Akin, Jr., Dallas (on motion for rehearing), for appellant.

Hudson, Keltner & Sarsgard and Luther Hudson, Fort Worth, for appellee.

RENFRO, Justice.

The plaintiff, Helen Mary Robinson, brought suit against the Gulf, Colorado and Santa Fe Railway Company, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for damages for the death of her husband while in the scope of his employment with the defendant.

The deceased was killed when the train on which he was working as fireman collided with a County asphalt truck on Avondale School Road in Tarrant County.

Following a verdict and judgment in favor of defendant Railway Company, the plaintiff appealed.

The controlling question is whether the trial court erred in refusing to submit to the jury Requested Issue No. 1(a): 'Do you find from a preponderance of the evidence that the defendant on the occasion in question failed to provide Grady Farris Robinson with a safe place to work?', with accompanying issues on negligence and proximate cause.

Plaintiff's petition in paragraph 6 described the train, alleged excessive speed, alleged that by reason of the terrain in the vicinity of Avondale Road, the angle or tangent at which said railroad crosses said road, color of the train, position of the sun, together with shortness of time said train is in view, 'works against the timely observation of said train, and particularly against any reasonable judgment of the speed thereof, by a traveler on or near the crossing in question'; that in spite of high speed of trains the Avondale crossing was marked only by an old-fashioned cross-buck railroad crossing sign, that said sign is deceptive as to nature of dangers existing at said crossing. Paragraph 6 concluded as follows: 'In connection with the dangers at the crossing here alleged, plaintiff would show that at the time herein complained of, defendant Railway Company had in its employ and regularly operating its fastest train, an elderly man, long past the age of retirement and long past the age in life when the mental and physical faculties of an individual could or should be expected to function as foreseeably necessary and required of one operating such heavy, powerful locomotives at the high and excessive speeds required by defendant company; that such elderly engineer was operating train No. 15 and in full charge and control of the diesel electric multiple-unit controlled locomotive at the time herein complained of, and Grady Farris Robinson, deceased, was by defendant company negligently placed under the control, supervision and direction of said elderly engineer, and made subject to his orders and commands; that immediately before the collision herein complained of, defendant's locomotive, with its elderly engineer, came out of the curve one and one-half miles north of the Avondale School Road crossing at a speed approaching ninety miles per hour, and within sixty or a few more seconds later crashed into a heavy tank truck belonging to the County of Tarrant, as same was moving across defendant's track westward, with the resulting fatal injuries to Grady Farris Robinson, said engineer and the driver of said truck; that under all of the circumstances existing at said time and place, as hereinabove alleged, or a combination of any of said circumstances, defendant Railway Company negligently failed to furnish Grady Farris Robinson with a safe place to work, as required by law to do, and such failure was a proximate cause of his death and the resulting damage herein complained of.'

Paragraph 7 alleged the crossing to be extra hazardous.

In paragraph 8 plaintiff plead: 'Further and in addition to the above, and in the alternative if necessary, * * *'; then followed thirteen alleged acts of negligence on the part of defendant and its employees.

The jury found: (1) Defendant was not negligent in authorizing its engineers to operate locomotives at the point of collision at a speed of 84 miles per hour. (3) Defendant was not negligent in failing to mark the crossing in some manner to warn the public that trains passed at speeds as high as 84 miles per hour. (5) Defendant's engineer was not negligent in operating the train at a speed of 84 miles per hour. (7) The engineer did not fail to keep a proper lookout. (9) The engineer timely sounded the whistle. (11) He did not fail to timely apply the brakes on the train. (22) As between defendant and deceased the collision was an unavoidable accident. (24 and 25) Failure of the driver of the asphalt truck to keep a proper lookout was sole proximate cause of death of Robinson. (28) The driving of the asphalt truck on the railway track was the sole proximate cause of Robinson's death.

Plaintiff did not object to any of the issues submitted and does not now contend the answers are not supported by the evidence. She does contend that if the 'safe place to work' issues had been submitted and answered favorably to plaintiff, such issues would have controlled over the findings...