Snider v. Texas & Pac. Ry. Co.

• Decision Date: 10 June 1958
• Docket Number: No. 7017,7017
• Citation: 315 S.W.2d 82
• Court: Texas Court of Appeals
• Parties: Mrs. O. J. SNIDER, Administratrix, Appellant, v. The TEXAS & PACIFIC RAILWAY COMPANY, Appellee.

Page 82

315 S.W.2d 82

Mrs. O. J. SNIDER, Administratrix, Appellant, v. The TEXAS & PACIFIC RAILWAY COMPANY, Appellee.

No. 7017.

Court of Civil Appeals of Texas, Texarkana.

June 10, 1958.

Rehearing Denied July 8, 1958.

Jones, Brian & Jones, Marshall, Meredith, Adams & Shepperd, Longview, for appellant.

Bibb & Green, Marshall, Earl Roberts, Longview, J. T. Suggs, Tom L. Farmer, Dallas, for appellee.

DAVIS, Justice.

Plaintiff-appellant, Mrs. O. J. Snider, a widow, individually and as temporary administratrix of the estate of O. J. Snider, deceased, sued defendant-appellee for damages arising from a collision at a street and railroad crossing in the City of Longview, Texas, between a pick-up truck driven by O. J. Snider and a train of appellee. The collision occurred on June 26, 1956, and resulted in the death of O. J. Snider on July 19, 1956. Trial was to a jury and in response to special issues submitted found that: (Issues not answered are omitted; the issue numbers skipped from 18 to 25) (1) The crossing was extrahazardous; (2) appellee knew, or by the exercise of ordinary care should have known at such time, that the crossing was extrahazardous; (3) the failure of appellee to place a warning system of lights and bells at the crossing prior to the collision was negligence; (4) such negligence was a proximate cause of the collision; (5) appellee did not fail to sound the whistle on the engine at a distance of at least 80 rods from the crossing in question; (7) appellee did fail to ring the bell on the engine at a distance of at least 80 rods from the crossing and did fail to keep such bell ringing until the engine had crosed the crossing; (8) the failure to ring the bell and keep it ringing was not a proximate cause of the collision; (9) that the engine of the train was being operated at a rate of speed in excess of 40 miles per hour as it approached the crossing; (10) the operation of such train in excess of 40 miles per hour was negligence; (11) such operation at such speed was a proximate cause of the collision; (12) the value of the pick-up immediately before the collision was $400, and immediately after was $105; (13) the value of the hospital, medical, nursing and doctor expense to be $2,248.25; (14) the value of the burial expense to be $1,269; (15) damages for conscious pain and suffering, 'none'; (16) damages for death of O. J. Snider $59,800; (17) the train was plainly visible to O. J. Snider before he reached a point 15 feet from the nearest rail of the railroad track; (18) the train was not 'in hazardous proximity' to the crossing before the truck driven by O. J. Snider reached a point 15 feet from the nearest rail of the railroad track; (19) the train was approaching the crossing within 1,500 feet of the crossing at a time when Snider's truck was more than 15 feet and less than 50 feet from the nearest rail of the railroad track; (24) the train was emitting a signal that was audible at the crossing before Snider reached a point 15 feet from the nearest rail of the railroad track; (25) the train was 'an immediate hazard' before deceased reached a point 15 feet from the nearest rail of the railroad track; (26) Snider did stop his truck within 50 feet, but not less than 15 feet from the nearest rail of the railroad track; (27) after Snider stopped his truck, he then proceeded when he could not do so safely; (28) Snider's proceeding when he could not do so in safety was a proximate cause of the collision; (30) Snider did not fail to keep a proper lookout for trains approaching from the west while driving his truck in a westerly direction and before turning southerly toward the crossing in question as would have been kept by a person of reasonable prudence in the exercise of ordinary care under the same or similar circumstances; (32) Snider, while driving in a southerly direction within 40 feet of the railway track, did not faile to keep a proper lookout; (34) Snider did not fail to look to the west for approaching trains immediately before attempting to drive across the railway track; (36) Snider did not fail to see the approaching train before driving his truck upon the railway track; (39) Snider was guilty of contributory negligence by driving his truck upon the railway track after seeing the approaching train; (40) the whistle of the train was blown before the truck was driven upon the railway track; (41) Snider did not fail to hear such whistle; (43) Snider did hear the noise of the approaching train before attempting to drive across the railway track; (44) Snider's attempting to drive his truck across the railway track, after hearing the noise of the train, constituted contributory negligence on his part; (45) Snider did not fail to hear the noise of the train before driving his truck upon the railway track; (47) Snider's failure to stop his truck and wait for the train immediately before driving upon the railway track, under all the then existing circumstances, constituted contributory negligence on his part; (48) Snider did not allow his truck to stall or temporarily stop while it was upon the main line of the track; and (50) it was not an unavoidable accident.

Upon receipt of the verdict, appellant filed a motion for mistrial because of certain conflicts in the verdict. The motion was overruled and judgment was entered that appellant take nothing. Appellant's motion for new trial was overruled and she has perfected her appeal. She brings forward only three points of error; although she filed numerous exceptions to the court's charge and raised many more points in her motion for new trial.

This is another case in which the special issues were framed in an effort to try to comply with and conform to the requirements of Sec. 86 of Article 6701d, Vernon's Annotated Civil Statutes, which reads as follows:

'Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:

'(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train;

'(b) A crossing gate is lowered, or when a human flagman gives or continues to give a signal of the approach or passage of a train;

'(c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard;

'(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.'

Justice Calvert pointed out in Missouri-Kansas-Texas Railroad Co. v. McFerrin, Tex., 291 S.W.2d 931, 938-939, that: 'Section 86 is but one of 156 sections contained in a comprehensive Act of the 50th Legislature, passed in 1947, regulating traffic on highways * * * The historical note to Article 6710d contained in Vernon's Annotated Texas Statutes, states that it is similar to the Uniform Act regulating traffic on highways but that it contains many additions and differences * * *.' To which we add the following from said historical note: 'This act was declared obsolete by the National Conference on Uniform State Laws and the question whether the conference should interest itself further in the subject was referred to the Committee on Scope and Program, in August, 1943. See Handbook of the National Conference, 1943, p. 69.' The history ends there; we got the Act in 1947.

We call attention to the provisions of the Act because the appellant's points require the Court to construe certain special issues submitted in an effort to comply with the Act, and the jury's answers thereto. In Point One, appellant contends that there is an irreconcilable conflict between the answer of the jury to Special Issue No. 18, and its answers to Special Issues Nos. 25, 27, 28, 39, 44 and 47.

We only have to look to two of the special issues and answers, 18 and 25, to determine that there is definitely such a conflict.

In order to plainly demonstrate our conclusion, Special Issues 18 and 25, the...