Southern Pac. Co. v. Stanley
| Decision Date | 24 September 1970 |
| Docket Number | No. 516,516 |
| Citation | 459 S.W.2d 232 |
| Parties | SOUTHERN PACIFIC COMPANY et al., Appellants, v. Velma Eloise STANLEY, Appellee. |
| Court | Texas Court of Appeals |
Anderson, Smith & Null, Joseph P. Kelley, Victoria, for appellants.
Kilgore, Cole & Garrett, Emmett Cole, Jr., Victoria, for appellee.
On this appeal the appellants are Southern Pacific Company and its engineer E. R. Weitzel. Appellee is Velma Eloise Stanley, widow of Ernest Stanley, deceased.
This is a companion case to Opal Gentry v. Southern Pacific Company (Tex.Civ.App. Corpus Christi 1969), 449 S.W.2d 527, aff'd Tex.Sup.Ct. July 15, 1970, 457 S.W.2d 889. It involves the same collision between one of Southern Pacific's trains being operated by E. R. Weitzel as engineer and J. J. Forman as acting fireman, and an automobile being driven by James G. Gentry and occupied also by Ernest Stanley. Gentry and Stanley were killed in the accident. Their widows filed separate suits to recover damages from the railroad company and Weitzel. The suits wer tried jointly in one trial. The sole basis of liability sought to be imposed in Gentry on appeal was discovered peril, since Gentry, the driver of the car, was found guilty of several acts of contributory negligence proximately causing the collision. In view of the holding of the appellate courts in Gentry, supra, that there was No evidence to support the submission of discovered peril, such ground of liability is out of the case.
However, the jury did not find any negligence of the passenger Stanley, and no contention is made by appellants that any legal relationship existed between Stanley and Gentry which would cause Stanley to be chargeable with Gentry's negligence. The jury did find the railroad engine crew guilty of negligence proximately causing the accident in two respects, as follows:
'SPECIAL ISSUE NO. 4--Do you find from a preponderance of the evidence that the failure of J. J. Foreman to apply the emergency brake on the Defendant's train was negligence?
Answer 'Yes' or 'No'
We, the Jury, answer 'Yes'
SPECIAL ISSUE NO. 5--Do you find from a preponderance of the evidence that such negligence, if any you have found, was a proximate cause of the collision in question?
Answer 'Yes' or 'No'
We, the Jury, answer 'Yes'
SPECIAL ISSUE NO. 6--Do you find from a preponderance of the evidence that E. R. Weitzel failed to reduce the speed on the train which he was operating at the time when a person of ordinary prudence in the exercise of ordinary care would have reduced the speed of said train?
Answer 'Yes' or 'No'
We, the Jury, answer 'Yes'
SPECIAL ISSUE NO. 7--Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the collision in question?
Answer 'Yes' or 'No'
We, the Jury, answer 'Yes"
Based on such jury findings, and the answer to the damage issue, the trial court rendered judgment for appellee Mrs. Stanley and against appellants railroad and its engineer Weitzel for the sum of $55,989.22, which was later reduced on the filing if a remittitur by appellee to $54.972.69. Appellants' motion for judgment n.o.v. as to plaintiff Stanley, and their subsequent amended motion for new trial were overruled, and they have appealed to this Court.
By a number of points of error (Nos. 1, 3, 6, 8, 10, 26, 27) appellants assert that there was No evidence of any negligence or proximate cause on the part of defendants on this occasion, and particularly No evidence to support the submission of special issues Nos. 4, 5, 6 and 7, and they argue under such points that the court erred in overruling their objections to the submission of such special issues, and in rendering judgment based on the jury's affirmative answers.
Prior to submission of the case to the jury appellants duly objected to the giving of the foregoing special issues on the ground, among others, that there was no evidence to support their submission. The same objections were raised in their Motion for Instructed Verdict, Motion for Judgment, and Amended Motion for New Trial. The trial court overruled the objections in each instance.
The evidence of the events leading to the occurrence in question is thoroughly summarized in the opinions of the Supreme Court and of this Court in Gentry, supra. We copy from the Supreme Court opinion the following:
'We will review the evidence and the inferences therefrom in the light most favorable to plaintiff and in support of the jury's answer. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); and cases hereinafter cited.
The accident occurred near the small community of El Toro, Texas, on March 6, 1965, at approximately 3:45 p.m. The weather was clear. The automobile was traveling in a northerly direction on Farm to Market Road 234, with the train traveling in a westerly direction at approximately right angles. As the automobile approached the crossing there were five warnings: (1) a round sign on the shoulder of the road bearing an X with the letter R on each side of the sign; (2) an X, with an R on each side, painted on the surface of the portion of the road being traveled by the deceased driver; (3) cross arms with two flashing red lights; (4) the engine's horn or whistle; and (5) the engine's bell. The undisputed evidence shows that the audible and visual warning devices were functioning properly on the occasion.
The engineer, Mr. Weitzel, testified in substance as follows: the compartment from which the train is operated by the engineer is located in the first engine or unit. The particular unit involved in the accident is a 1500 horsepower diesel electric locomotive. The entire train consisted of four units, a caboose, and one hundred and fourteen cars, seventy-four of which were loaded and forty empty . The engineer occupies the right side of the unit and the fireman is located on the left. The primary duty of the fireman is to maintain a constant lookout for obstructions on the tracks to the left-front of the train, and to alert the engineer of traffic that is approaching the railroad-highway crossings from his side. Traveling at a speed estimated to have been 39 or 40 miles per hour, the lead unit approached the whistle board located one-fourth of a mile east of the intersection. A whistle board is a railroad marker designed to inform the engineer of an upcoming crossing, and alerts the engineer to the necessity for blowing the air horn as a warning to approaching traffic. At that time Weitzel commenced blowing the air horn. When the unit was approximately 1,000 feet east of the crossing the fireman, Forman, said that 'he saw an automobile.' Weitzel continued to blow the air horn, and he also turned on the bell ringer. He did nothing else, because as far as he knew, that was all there was to do. He looked to the left but could not see the car, possibly because 'there were trees that might have been in the way.' Although such size trains as this one do not 'stop on a dime,' he never had reduced the speed of any train in an effort to avoid a collision. Weitzel did nothing to prepare to stop or slow the train other than to place his hand on the emergency brake without applying it. He knew that the only manner is which he could avoid a collision with a car on the track at the crossing should one be there, was by reducing the speed of the engine, because he could not take any evasive action on a train track.
The speed of the train could have been reduced somewhat before reaching the crossing, if he had applied the brake when the fireman had first alerted him of the oncoming automobile, which was at a point 1,000 feet from the intersection. He knew that once he passed a point three or four hundred feet from the crossing, he could do nothing effective to stop or slow the train in time to avoid a collision. At a distance of about 100 feet east of the intersection the fireman called out, 'They are going to hit us, stop,' and then 'put the brakes into emergency on the unit.' It was too late. The lead unit, even with the emergency brake on, traveled over two thousand feet beyond the point of impact, pushing the automobile along in front of it. In conclusion, Weitzel stated that he never did see the automobile, but rather, that he relied on the fireman to give him any information of any car approaching from the left side of the train.
The fireman, Forman, testified: that he was actually a brakeman, but that he was serving as fireman on March 6, 1965. He knew that he must maintain lookout for any obstructions forward and to the left of the diesel locomotive, and to alert the engineer of the traffic approaching an intersection from his side of the train. He first noticed the Gentry automobile when the lead unit was about 1,000 feet from the crossing, the...
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Stanley v. Southern Pac. Co.
...finding no evidence to support the jury's verdict, reversed the judgment of the trial court and rendered judgment for the railroad. 459 S.W.2d 232. We find there is evidence to support the jury's verdict. Accordingly we reverse the judgment of the court of civil appeals and remand the cause......
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Southern Pac. Co. v. Stanley, 516
...Christi 1969).2 Gentry v. Southern Pacific Company, 457 S.W.2d 889 (Tex.Sup.1970).3 Southern Pacific Company v. Stanley, 459 S.W.2d 232 (Tex.Civ.App.--Corpus Christi 1970).4 Stanley v. Southern Pacific Company, 466 S.W.2d 548 ...