Southern Pac. Transp. Co. v. Smith Material Corp.

• Decision Date: 28 April 1980
• Docket Number: No. 78-1140,78-1140
• Parties: SOUTHERN PACIFIC TRANSPORTATION CO. et al., Plaintiffs-Appellees, v. SMITH MATERIAL CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 111

616 F.2d 111

SOUTHERN PACIFIC TRANSPORTATION CO. et al., Plaintiffs-Appellees, v. SMITH MATERIAL CORPORATION, Defendant-Appellant.

No. 78-1140.

United States Court of Appeals Fifth Circuit.

April 28, 1980.

Pike Powers, Jr., Austin, Tex., Michael L. Baker, Beaumont, Tex., for defendant-appellant.

Mehaffy, Weber, Keith & Gonsoulin, Robert Q. Keith, Daniel V. Flatten, Beaumont, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before COLEMAN, Chief Judge, and REAVLEY and ANDERSON, Circuit Judges.

REAVLEY, Circuit Judge:

This diversity case, Texas law controlling, concerns a collision between a truck and a train. Southern Pacific Transportation Co. ("Southern Pacific") and the National Railroad Passenger Corp. ("Amtrak"), acting as a single entity, sued Smith Material Corp. ("Smith") for damages to its train tracks and cars when a truck driven by a Smith employee collided with the train at a railroad crossing. Smith counterclaimed for damages to its truck. The jury apportioned fault, finding Smith responsible for 75 per cent of the negligence proximately causing the collision, Amtrak and Southern Pacific 25 per cent negligent. The trial judge, on Southern Pacific/Amtrak's motion, then entered a declaratory judgment providing for contribution between the parties in accordance with their respective negligence for any liability which might be incurred to third parties as a result of the collision. Smith Material appealed. We affirm the findings of negligence. We also affirm the declaratory judgment with the exception that it shall not apply in any case in which Amtrak is found liable to a passenger or any other party to whom it owed a higher duty of care by virtue of its status as a common carrier.

I. Jury Instructions

Smith objects to the court's jury charge on the ground that it misstated Texas law. Texas Rev.Civ.Stat.Ann. art. 6701d § 86 (Vernon 1977) governs vehicular safety at railroad crossings. ¹ Smith would be negligent as a matter of law for the unexcused violation of this statute unless it presented some evidence to excuse its nonconformance. Southern Pacific Co. v. Castro, 493 S.W.2d 491 (Tex.1973). Five representative, though non-exclusive, categories of excuses ² adopted from the Second Restatement of Torts, § 288A (1965) will prevent a finding of negligence per se. Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). That is, the statutory violation will be excused if some evidence, which is more than a mere speculation or suspicion, of a legally acceptable excuse is presented. Hoppe v. Hughes, 577 S.W.2d 773 (Tex.Civ.App. Amarillo 1979, writ ref'd n. r. e.).

Once the court finds sufficient evidence of an excuse, the plaintiff bears the burden of proving the defendant negligent under the common law or prudent man standard. L. M. B. Corp. v. Gurecky, 501 S.W.2d 300 (Tex.1973). The court may inform the jury that the legislature has established a uniform standard of safe conduct by stating the provisions of the statute as well as instructing the jury that the defendant along with the whole public is charged with knowledge of those safety provisions. The court may also instruct and define for the jury any claimed excuse which falls within Impson. Id.

Smith contended that the train failed to brake in time, that the signal lights were not functioning, and that its driver's view of the approaching train was obstructed by bushes and trees near the track. Assuming that Smith's evidence of a legally acceptable excuse created a jury issue on common law negligence, the trial judge's instructions were not in accord with Texas law. ³ The jury was told that failure to comply with article 6701d would not constitute negligence per se if compliance were impossible or not necessary under the circumstances (Record at 926), more than a Texas court would tell. The error, however, did not prejudice Smith. The judge also discussed the importance of the driver's visibility in assessing the necessity of complying with the statute. Smith, therefore, received the benefit of any conceivably relevant excuse, and the total effect of the instruction was to give the jury a common law ordinary prudent man test for determining Smith's negligence. Consequently, we find no harm from the court's failure to adhere to Texas procedure ⁴ or substantive law in submitting the case to the jury.

II. Declaratory Judgment

Smith objects to the entry of a declaratory judgment by the trial court fixing financial responsibility between the parties to the 25/75 percent negligence ratios found by the jury for any future liability to third parties. In all subsequent cases in which the collision between the truck and the train is the sole or a contributing proximate cause of an injury to a third party, that party, absent contributory negligence, will be entitled to collect the entire sum from either Smith or Amtrak. See Tex.Rev.Civ.Stat.Ann. art. 2212a § 2(c). Between Smith and Amtrak, each will have a right to contribution from the other in accordance with the jury assessment of negligence in this case. See art. 2212a § 2(f).

The declaratory judgment, then, operates no differently here than collateral estoppel used offensively. The Supreme Court approved the offensive use of collateral estoppel in Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), provided a defendant received a full and fair opportunity to litigate, suffered no procedural disadvantages because of opportunities unavailable in the prior litigation, and did not risk the possibility of inconsistent decisions. Smith engaged in a week long trial in which several hundred thousand dollars were at stake; Smith had, therefore, every incentive to litigate Amtrak's negligence, and its own absence from negligence, to the fullest extent. No other cases arising from the truck-train collision had been litigated; the risk of inconsistent decisions, particularly if this litigation is given collateral estoppel effect, is entirely eliminated.

We note, furthermore, that federal procedure governs this diversity action and determines the applicability of collateral estoppel. Johnson v. United States, 576 F.2d 606 (5th Cir. 1978); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff'd in unpublished opinion, 537 F.2d 1142 (5th Cir. 1976). "The very purpose of federal diversity jurisdiction is to avoid bias against parties from outside the forum state . . . (t)o permit (Smith Trucking Co.) to nullify a prior federal court judgment rendered in favor of (Amtrak), an out-of-state party, through subsequent state court action would fly in the face of that purpose." Aerojet-General Corp. v. Askew, 511 F.2d 710, 716 n.6 (5th Cir. 1975), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). In any subsequent litigation against Smith arising out of this suit, Smith, therefore, shall be precluded from re-litigating the existence or scope of Amtrak's negligence. "(U)nder federal principles a party who has had a full and fair opportunity to litigate an issue decided in a prior suit may be precluded from relitigating that issue in a subsequent action, even though the subsequent adversary was not a party to the prior litigation." Johnson v. United States, 576 F.2d at 614.

With respect to any suit in which the plaintiff was a passenger on Amtrak, or any other party to whom Amtrak owes a higher duty of care by virtue of its status as a common carrier, the prior litigation between Smith and Amtrak shall not have collateral estoppel effect and the declaratory judgment will not be operative.

Article 2212a, which when applicable, prevails over article 2212, Tex.Rev.Civ.Stat.Ann. art. 2212a § 2(h) (Vernon Supp. 1979), provides for a system of comparative negligence and the apportionment of damages among negligent tortfeasors. Although article 2212a became effective in September, 1973, the Texas courts have not yet resolved the problem of contribution among joint tortfeasors when one tortfeasor owes a very high degree of care to the plaintiff and the other owes only ordinary care. The closest case on Amtrak's ability to collect contribution from Smith for a suit in which a plaintiff-passenger successfully sues is Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449 (1941), a pre-2212a case. In Wheeler, a passenger on a streetcar was injured when the streetcar was struck by Glazer's truck. The jury found only the truck company negligent and acquitted the streetcar company of all acts of alleged negligence proximately contributing to...