Southern Pac. Co. v. Castro, B--3141

Citation493 S.W.2d 491
Decision Date10 January 1973
Docket NumberNo. B--3141,B--3141
PartiesSOUTHERN PACIFIC COMPANY et al., Petitioners, v. Aurora M. CASTRO, Individually and as next friend of minors, Sandra Castro et al., Respondents.
CourtSupreme Court of Texas

Matthews, Nowlin, Macfarlane & Barrett, Harper Macfarlane, Luther H. Soules, III, and Ferd C. Meyer, Jr., San Antonio, Baker & Botts, Houston, Clark Murray, Floresville, for petitioners.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, Groce, Hebdon, Fahey & Smith, James D. Guess, Rice & Seely, Rudy Rice, Tilman R. Thomas, San Antonio, for respondents.

POPE, Justice.

Arthur Castro's widow, Aurora Castro, and their children obtained a judgment against Southern Pacific Company, its engineer, and fireman, for damages arising out of Castro's death at a railroad intersection in Floresville, Texas. The court of civil appeals affirmed the judgment of the trial court. 473 S.W.2d 577. The question presented by this appeal is whether the jury verdict will support the conclusion of the courts below that Castro's contributory negligence in violating Section 86(c) of Article 6701d, Vernon's Ann.Texas Civil Stats., was excused. We hold that it was not. We reverse the judgnents below and remand the cause to the trial court in the interest of justice.

Castro was driving a truck to make deliveries of beer after dark on the evening of the collision. He approached the main line of the Southern Pacific at a time when its freight train was also approachig the same intersection. He was headed east and the train was headed south. The truck was stopped with its front wheels in the middle of the track at the time of the fatal collision.

Judgment for the plaintiffs was grounded upon jury findings that the railroad crossing was extra-hazardous, defendant was negligent in failing to provide an automatic flashing signal, the train was operating in excess of twelve miles an hour, it was operating in excess of twenty-five miles an hour, and that each omission and act of negligence was a proximate cause of the occurrence.

Southern Pacific also obtained jury findings that Castro was contributorily negligent in that he violated two of the statutory standards fixed by Section 86, Article 6701d, Vern.Tex.Civ.Stats. The provisions of section 86 which are relevant to this case provide:

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) * * *

(b) * * *

(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. (Emphasis added.)

By the undisputed evidence Castro approached the crossing and failed to stop within fifty feet but not less than fifteen feet from the nearest rail. It was also undisputed that the engine was approaching. The trial court submitted these contributory negligence issues and to each of them the jury answered, 'We do.' ISSUE NO. 22 Do you find from a preponderance of the evidence that when the engine of the train was within approximately 1,500 feet of the crossing in question it emitted a signal which was audible from that distance?

ISSUE NO. 23 Do you find from a preponderance of the evidence that the train was plainly visible before ARTHUR CASTRO reached a point fifteen feet from the nearest rail of the mainline track on which the train was approaching?

A train is 'plainly visible' if a driver, situated as was ARTHUR CASTRO and using ordinary care for his own safety, would have seen it.

If you have answered either Issue No. 22 or Issue No. 23 'We do,' then answer Issue No. 24' (sic) otherwise do not answer Issue No. 24.

ISSUE NO. 24 Do you find from a preponderance of the evidence that the train was in hazardous proximity to the crossing in question before ARTHUR CASTRO reached a point fifteen feet from the nearest rail of the mainline track on which the train was approaching?

A train is 'in hazardous proximity to the crossing' if the speed or nearness of the train is such that a driver, situated as was ARTHUR CASTRO and using ordinary care for his own safety, would reasonably conclude that he cannot pass over the crossing without danger of collision.

If you have answered Issue No. 24 'We do,' then answer Issue No. 25; otherwise do not answer Issue No. 25.

ISSUE NO. 25 Do you find from a preponderance of the evidence that the failure of ARTHUR CASTRO to stop his vehicle within fifty feet, but not less than fifteen feet, from the nearest rail of the mainline track was a proximate cause of the collision in question?

Castro was therefore contributorily negligent under the standard imposed upon him by Section 86(c), Article 6701d, because (1) it was undisputed that he failed to stop within the statutory zone, and the jury found that, (2) the engine was within 1,500 feet of the crossing when the engine emitted a signal audible from that distance, (3) the train was in hazardous proximity, and (4) Castro's failure to stop in the statutory zone was a proximate cause of the collision. Additionally, the jury found that Castro was contributorily negligent under the standard imposed upon him by section 86(d) in that (1) it was undisputed that he failed to stop within the statutory zone, and the jury found that (2) the train was plainly visible before he reached a point fifteen feet from the nearest rail of the mainline track, (3) the train was in hazardous proximity, and (4) Castro's failure to stop within the statutory zone was a proximate cause of the collision. See Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956).

Thus, Southern Pacific was successful in obtaining jury findings that Castro violated the statutory standard of section 86(c) as well as section 86(d). We observe that the trial court treated the phrase in section 86(c) 'an immediate hazard' and the phrase in section 86(d) 'in hazardous proximity' as synonymous and thus submitted the issue only once. We regard that as a proper practice.

We now reach the controlling problem in this case. Plaintiffs alleged that Castro's violations of the standards stated in section 86(c) and 86(d) were excused because it was impossible for him to comply. The trial court submitted two requested excuse issues, and the jury answered those issues favorably to plaintiffs' contentions. The jury answered 'We do' to these issues.

ISSUE NO. 14 Do you find from a preponderance of the evidence that after the train became Plainly visible and in hazardous proximity to the crossing, ARTHUR CASTRO could not by the exercise of ordinary care have stopped his vehicle within fifty feet but not less than fifteen feet from the nearest rail of the mainline track.

A train is 'plainly visible' if a driver, situated as was ARTHUR CASTRO and using ordinary care for his own safety would have seen it.

A train is 'in hazardous proximity to the crossing' if the speed or nearness of the train is such that a driver, situated as was ARTHUR CASTRO and using ordinary care for his own safety, would reasonably conclude that he cannot pass over the crossing without danger of collision.

If you have answered Issue No. 14 'We do', then answer Issue No. 15; otherwise, do not answer Issue No. 15.

ISSUE NO. 15 Do you find from a preponderance of the evidence that the inability of ARTHUR CASTRO to stop, if any, was not caused by his own negligence.

Southern Pacific argues that it obtained separate findings that Castro was contributorily negligent in two particulars. He violated section 86(c) by failing to stop after the engine gave the statutory audible signal, and he also violated section 86(d) by failing to stop after the train was plainly visible. It says that special issue 14, quoted above, was tied to and limited to that time and place at which the train was Plainly visible and that the finding on issue 14 excused Castro's violation of section 86(d) only. Southern Pacific says that section 86(c) imposed another, different, and independent duty to stop which is grounded upon an approaching driver's duty to listen; that is to stop or slow down after an engine emits an audible signal. It says that plaintiffs failed to get a finding which excused Castro's negligence under 86(c).

There is some evidence in this record that there were structures located along the highway and railroad track, and that the train was not plainly visible until it was about sixty-two feet from the crossing. A jury believing that evidence could conclude that Castro could not have stopped his vehicle in the statutory zone after the train reached that point of plain visibility. Castro, therefore, would be excused from failing to stop after the train became plainly visible. Such a finding, however, does not compel the wholly different conclusion that Castro was unable to stop after the engine emitted a signal when it was approximately 1,500 feet from the crossing.

The plaintiffs, to counter Southern Pacific's argument, begin with the factor which is common to sections 86(c) and 86(d), that of 'hazardous proximity.' They correctly reason that the phrases 'immediate hazard' used in section 86(c) and 'hazardous proximity' used in section 86(d) have the same meaning. They rely upon our decision in Texas & Pacific Railway Company v. Snider, 159 Tex. 380, 321 S.W.2d 280 (1959), in which case we held there was a conflict between the finding on an issue submitted under section 86(c) that a train Was in hazardous proximity and a finding on another issue submitted under section 86(d) that a train Was not in hazardous proximity. They point to...

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