Southern Pac. Co. v. Castro

• Decision Date: 11 November 1971
• Docket Number: No. 7244,7244
• Citation: 473 S.W.2d 577
• Parties: SOUTHERN PACIFIC COMPANY et al., Appellants, v. Aurora M. CASTRO, Individually and as Next Friend of Minors, Sandra Castro, et al., Appellees.
• Court: Texas Court of Appeals

Page 577

473 S.W.2d 577

SOUTHERN PACIFIC COMPANY et al., Appellants, v. Aurora M. CASTRO, Individually and as Next Friend of Minors Sandra Castro, et al., Appellees.

No. 7244.

Court of Civil Appeals of Texas,

Beaumont.

Nov. 11, 1971.

Matthews, Nowlin, Macfarlane & Barrett, San Antonio, Clark Murray, Floresville, for appellants.

Brown, Kronzer, Abraham, Watkins & Steely, Houston, Rice & Seely, San Antonio, for appellees.

STEPHENSON, Justice.

This is an action for damages growing out of a truck-train collision in which the truck driver, Arthur Castro, was killed. Plaintiffs are the surviving wife and minor children of the deceased . Trial was by jury and plaintiffs recovered judgment upon the verdict. The parties will be referred to here as they were in the trial court.

The jury made these findings:

Issue 7. That the crossing in question was extrahazardous.

Issue 8. That the failure of the defendant to have an automatic flashing signal in operation was negligence.

Issue 9. That such failure was a proximate cause of this occurrence.

Issue 10. That the train was being operated at a speed in excess of twelve miles per hour.

Issue 11. That such operation was a proximate cause of this occurrence.

Issue 12. That the train was being operated at a speed in excess of twenty-five miles per hour.

Issue 13. That such operation was a proximate cause of this occurrence.

Issue 14. 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.

Issue 15. That such inability to stop was not caused by his negligence.

Issue 22. That when the engine of the train was within approximately 1500 feet of the crossing it emitted a signal audible from that distance.

Issue 23. 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.

Issue 24. That the train was within hazardous proximity to the crossing before Arthur Castro reached a point fifteen feet from the nearest rail of the mainline track on which the train was approaching.

Issue 25. 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 this collision.

Issue 26. That this accident was not an unavoidable accident.

The jury failed to make the following findings:

Issue 1. That the train crew failed to keep a proper lookout.

Issue 3. That the engine crew failed to sound a whistle at least 1320 feet from the crossing as the train was approaching.

Issue 5. That the engine crew failed to ring the bell on the engine continuously from a distance of at least 1320 feet from the crossing until after the engine had crossed over the public road.

Issue 16. That Arthur Castro failed to keep a proper lookout.

Issue 18. That Arthur Castro was negligent in stopping the truck between the rails of the track.

Issue 20. That Arthur Castro was driving the truck at a greater rate of speed than a person using ordinary care would have driven it .

The real controversy in this case on appeal centers around the jury findings in Issues 22, 23, 24 and 25, and the findings in Issues 14 and 15. Article 6701d, § 86, Vernon's Ann.Civ.St., reads, in part, as follows:

'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:

'(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.'

Defendant contends it is entitled to judgment because the jury findings in Issues 22, 23, 24 and 25 established negligence per se on the part of Arthur Castro which proximately caused this collision . Plaintiffs answer that such negligence was excused by jury findings to Issues 14 and 15, and, therefore, plaintiffs were entitled to the judgment entered. Defendant replies that Issues 14 and 15 do no more than excuse Arthur Castro under § 86(d), and it was still entitled to judgment because of the negligence per se found under § 86(c).

Issue 24 was conditioned upon an affirmative answer to either Issue 22 or 23, and Issue 25 was conditioned upon an affirmative answer to Issue 24. We reproduce Issues 14 and 15 here so the problem may be more easily understood:

'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.

'Answer: 'We do' or 'We do not.'

'Answer: We do

'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.

'Answer: 'We do' or 'We do not.'

'Answer: We do

The law is generally accepted not in Texas to be, under the negligence per se doctrine, once it is established that a party did violate a traffic statute, then the burden shifts to the offender to come forward with some evidence of 'excuse'--and the validity of the excuse depends upon the absence of common law fault. Thus, in this case, when defendant established the violations of § 86(c) and (d) by Arthur Castro, as was done by the jury answers to Issues 22, 23, and 24, the burden was then upon plaintiffs to establish the absence of negligence as an excuse for such traffic violations. See 44 Tex.Law Rev. 1, 19.

Further statements as to the law controlling this case appear in Christy v. Blades, 448 S.W.2d 107, 111 (Tex.Sup.1969):

'(I)t is settled in Texas that an unexcused violation of Article 6701d, § 86(d), constitutes negligence as a matter of law.'

and,

'It is also our opinion that when impossibility of compliance is raised but not conclusively shown by the evidence, the motorist must request the submission of proper excuse issues before he will be heard to complain of their omission from the charge.'

Chief Justice Calvert in his article in 34 Tex.Law Rev. 971, 977 entitled 'Special Issues Under Article 6701d, Section 86(d), of the Texas Civil Statutes', has written:

'It is very generally held that violation of a statute is excusable, and therefore is not negligence, if the violation is one that a reasonably prudent person would have committed under the same or similar circumstances . . ..'

The opinion in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 936 (1956), makes it clear that the reasonably prudent man test is applicable to the present situation. It is there written:

'Accordingly, we apply the objective common-law test of the reasonably prudent man and hold that before it can be said in a given case that an approaching train was 'plainly visible' as a matter of law, it must appear, as a matter of law, that a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it. We further hold that it will not be said that a train was 'in hazardous proximity' to a crossing, as a matter of law, unless under all the attendant facts and circumstances it can be said, as a matter of law, that by reason of the speed and nearness of the train a reasonably prudent person should have known that an attempt to proceed over the crossing ahead of the train, was hazardous.'

That court at page 940 applied such doctrine in this manner:

'We hold, as a matter of law, under the facts and circumstances of this case, that a reasonably prudent person, situated as was the deceased, should have known that an attempt to proceed over the crossing ahead of the train, was hazardous. We accordingly hold, as a matter of law, that at the time the train became 'plainly visible' it was 'in hazardous proximity' to the crossing.'

In view of the jury findings in Issues 22, 23, 24 and 25, plaintiffs had the burden of securing jury findings of excuse as to both § 86(c) and (d). It is also clear under the case law in this state, that § 86(c) and (d) are separate and distinct defenses. Texas & Pacific Railway Company v. Davis,374 S.W.2d 305 (Tex.Civ.App., El Paso, 1963, writ ref., n.r.e.) and cases there cited. So the paramount question, at this point, is to determine whether or not the answers to Issue 14 and 15 constitute excuses for the negligence per se found under both § 86(c) and (d).

Issue 14 is the key issue. It contains the two elements 'plainly visible' and 'hazardous proximity' in the conjunctive state. The inquiry is whether or not 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 the specified distances. Defendant emphasizes the fact that this jury was not asked whether or not, after an audible signal and in hazardous proximity to the crossing, Arthur Castro could not by the...