Southern Pac. Transp. Co. v. Peralez

• Decision Date: 31 December 1976
• Docket Number: No. 1087,1087
• Citation: 546 S.W.2d 88
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. Carlos PERALEZ, Appellee.
• Court: Texas Court of Appeals

Page 88

546 S.W.2d 88

SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. Carlos PERALEZ, Appellee.

No. 1087.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 31, 1976.

Rehearing Denied Jan. 26, 1977.

Ralph L. Alexander, Kelley, Looney & Alexander, Edinburg, for appellant.

Henrichson & Smith, Edinburg, for appellee.

OPINION

YOUNG, Justice.

In this train-automobile collision case, Southern Pacific Transportation Company, defendant below, appeals from a $322,650.00 judgment against it and in favor of Carlos Peralez, plaintiff below, for plaintiff's property damage and personal injuries. The plaintiff had alleged that several acts of negligence by the defendant proximately caused the collision in question and the resulting damages to the plaintiff.

The parties tried the case before a jury which found that the collision was proximately caused by the negligence of Southern Pacific in the following respects: (1 through 5) maintenance of an extra-hazardous crossing without adequate warnings; (8 and 9) failure to ring the train's bell continuously from a distance of at least 1,320 feet from the crossing; (10 through 12) failure to sound the train's whistle continuously from a distance of at least 1,320 feet from the crossing; (13 and 14) traveling at an excessive rate of speed; (15 and 16) failure to keep a proper lookout; (17 and 18) failure to apply the brakes properly; (19 and 20) failure to give a proper warning of the train's approach; (21 and 22) failure to maintain the crossing in proper condition; (33 and 34) failure to use ordinary care after the discovery of plaintiff's peril. The jury refused to find that the collision was proximately caused by any negligence of the plaintiff. The total damage award (including the stipulation of $5,650.00) was $322,650.00. Based upon the stipulation and the jury verdict, the trial court entered judgment in favor of Peralez and against Southern Pacific in the amount of $322,650.00. Southern Pacific appeals from that judgment.

A fair summary of the background facts shows these events and circumstances. On November 18, 1969, the date of the accident, at approximately 8:30 A.M., Peralez was driving his automobile north on Sugar Road approaching Edinburg, Hidalgo County, Texas, at a speed of approximately 50 miles per hour. At the same time, the Southern Pacific train was approaching from the northeast toward its crossing with Sugar Road at a speed of between 25 and 35 miles per hour. After both the engineer of the train and Peralez had applied their brakes, the train and the automobile nevertheless reached the intersection simultaneously and collided, causing the property damage and personal injuries of which Peralez complains. The impact was between the right front of the automobile and the left front of the engine of the train.

At that time, Sugar Road was a two lane, black topped county road without either center line markings or railroad crossing markings. The only sign indicating a railroad crossing was a crossbuck sign which was located off the east shoulder of the road in line with several utility poles. The Southern Pacific tracks cross Sugar Road at an angle of approximately 45 , measuring from the north. The crossing was within the city limits of Edinburg. At the crossing the track was flat and level with the road and there was no grade to indicate the crossing. The railroad bed, however, is elevated above the surrounding land which was flat and on which there were no obstructions blocking the view to the south of the track. Sugar Road, as it approaches the crossing, is level and straight for more than 1,700 feet.

Appellant has brought forward 24 points of error. Among appellant's points of error are several legal insufficiency points ('no evidence' and 'as a matter of law'). With each such point, we shall view the evidence in a light most favorable in support of the jury findings and consider only the evidence and inferences which support the findings and reject the evidence and inferences contrary to the findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975). In considering the appellant's factual insufficiency points of error ('insufficient evidence' and 'against the great weight and preponderance of the evidence'), we shall examine the whole record to determine whether the evidence supports the jury findings. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have grouped for discussion appellant's points 9, 10, 11, 12, 13, 14, 15, and 16 asserting legal and factual insufficiency of the evidence to support the jury findings 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22.

About appellant's complaint of the jury finding of an extra-hazardous crossing, it is the general rule that a crossing is extra-hazardous if the place is so peculiarly dangerous that a prudent person could not use the public road in safety unless the company employed a flagman or other extraordinary means to signal the approach of the train. If a crossing is extra-hazardous, it is incumbent upon the railroad to employ the necessary extraordinary means of warning. Missouri, K. & T. Ry. Co. of Texas v. Magee,92 Tex. 616, 50 S.W. 1013 (1899); Panhandle & Santa Fe Ry. Co. v. Karr,257 S.W.2d 486 (Tex.Civ.App.--Amarillo 1953), aff'd 153 Tex. 25, 262 S.W.2d 925 (1953); Lundberg v. Missouri-Kansas-Texas R. Co. of Texas, 232 S.W.2d 879 (Tex.Civ.App.--Waco 1950, writ ref'd n.r.e.). It has been further held that unless only one conclusion can be drawn from the facts describing the surroundings of any particular crossing, the question of extra-hazardous crossing is a question solely for the determination of the jury. Fort Worth & Denver Railway Company v. Williams, 375 S.W.2d 279 (Tex.Sup.1964); Tisdale v. Panhandle & S.F. Ry. Co., 228 S.W. 133 (Tex.Com.App.1921, opinion adopted).

Upon our review of the evidence, we find the testimony and exhibits presented were sufficient for the jury to find that the Sugar Road crossing was extra-hazardous. There was no grade in the road as it approached the crossing; there was but one crossbuck at the crossing and it was obscured by utility poles; and the track approached the road at 45 angle thereby increasing the difficulty of perceiving movement on the track. Joseph Nanus, James Evins, and Dr. Gary Montgomery, all testified that the crossing was difficult to see because of these factors.

About appellant's attack on the jury findings that neither the bell nor the whistle was sounded continuously as the train approached the crossing, by statute an engineer is required to sound the train's whistle or bell at least 80 rods (1,320 feet) from a public crossing. The bell must be sounded continuously until the engine has passed over the crossing. Tex.Rev.Civ.Stat.Ann. 6559h--11 (Supp.1976). Obviously, the purpose of this requirement is to warn of an approaching train. Missouri-Kansas-Texas Railroad Company v. Wagner, 400 S.W.2d 357 (Tex.Civ.App.--Waco 1966, writ ref'd n.r.e.); Texas & N.O.R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App.--San Antonio 1934, writ ref'd n.r.e.).

The testimony of James Evins, Richard Cray, Mrs. Richard Cray, and Matias Morin, all disinterested witnesses, was sufficient to support the jury's finding that the engineer failed to sound the whistle or bell. This evidence coupled with the reasoning in Wagner and Stratton, demonstrate the jury was correct in determining that this failure was a proximate cause of the collision. Texas & P. Ry. Co. v. Brown, 142 Tex. 385, 181 S.W.2d 68 (1944); Missouri-Kansas-Texas Railroad Company v. Chesher, 354 S.W.2d 645 (Tex.Civ.App.--Texarkana 1962, writ ref'd n.r.e.); Port Terminal Railroad Association v. Noland, 288 S.W.2d 276 (Tex.Civ.App.--Galveston 1956, writ ref'd n.r.e.).

Next, we examine appellant's challenge to the jury findings that the train was traveling at an excessive rate of speed and that this was a proximate cause of the collision. In that regard, the record presents the following evidence about excessive speed and whether it was a proximate cause of the collision in question. The speed of the train was between 25 and 35 miles per hour. The crossing was located within the city limits of Edinburg and within the boundaries of the Southern Pacific's Edinburg Yard. James Ramsey, the engineer of the train, testified that he normally traveled 6 miles per hour within the city limits of Edinburg. Rules of operation for Southern Pacific trains were introduced which showed that a train of the type involved here was required to travel 'with caution' within yard limits. Travel 'with caution' was shown to mean travel at reduced speeds according to conditions; that it meant to be prepared to stop short of a train, engine, car, misplaced switches, derails, or other objects before reaching a stop signal, and where circumstances require the train must be preceded by a flagman. Mr. Ramsey testified that he was probably traveling at a speed in excess of 25 miles per hour within the yard and the city limits of Edinburg. We have already determined that the evidence supports the jury findings that the crossing was extra-hazardous and that no warnings were sounded as the train approached the crossing. We now hold that the evidence is sufficient to support the jury's finding that the speed was excessive.

The further determination of whether this rate of speed was a proximate cause of the collision was a question for the jury. Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402 (1958). The testimony of the accident reconstruction experts showed that this collision could have been avoided if seconds or feet had been saved in either direction. Engineer Ramsey testified further that he saw the car and realized it was traveling at a high rate of speed but that he did not reduce his speed or apply his brakes until he knew that the car could not stop. We hold this evidence sufficient to support the jury's determination of...