Southern Pacific Company v. Matthews
| Citation | 335 F.2d 924 |
| Decision Date | 24 September 1964 |
| Docket Number | No. 20988.,20988. |
| Parties | SOUTHERN PACIFIC COMPANY, Successor and Assign of Texas and New Orleans Railroad Company, Appellant, v. Ruth MATTHEWS, et vir, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Warren G. Moore, Tyler, Tex., Ben G. Sewell, Houston, Tex., for appellant, McGregor, Sewell, Junell & Riggs, Houston, Tex., of counsel.
Robert Fairchild, Center, Tex., Jack Flock, Tyler, Tex., for appellees, Ramey, Brelsford, Hull & Flock, Tyler, Tex., McDaniel, Hunt & Fairchild, Center, Tex., of counsel.
Before HUTCHESON, PRETTYMAN* and JONES, Circuit Judges.
Ruth Matthews and her husband, L. D. Matthews, recovered judgment against the appellant railroad company for personal injuries sustained when a train of the appellant struck an automobile, driven by L. D. Matthews in which his wife, Ruth Matthews, was a passenger, at a grade crossing in the town of Tenaha, Texas. The car was struck on the right side by a train composed of freight cars backing over the crossing. Ruth Matthews was sitting on the right of the front seat and was injured. The negligence of the railroad is not questioned. The only issue on this appeal is whether the evidence required a finding that L. D. Matthews was guilty of contributory negligence so as to preclude recovery by either Matthews or his wife, it being the law of Texas that contributory negligence defeats recovery and the negligence of the husband driver is imputed to the wife passenger. 40 Tex.Jur. 2d 639, Negligence § 122.
The railroad directs our attention to the Texas statute which provides:
A violation of this statute constitutes contributory negligence as a matter of law. Missouri-Kansas-Texas R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931. However, the Texas Supreme Court, in the McFerrin case, decided that whether the train is "plainly visible" and in "hazardous proximity" must be determined by the "common-law test of the reasonably prudent man." Missouri-Kansas-Texas R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 939. There is no question in this case that the train was in hazardous proximity to the crossing, and it is undisputed that the appellees did not stop. The issue for our resolution, therefore, is whether we can say, as a matter of law, that the train would have been "plainly visible" to a reasonably prudent man. In addition, the appellant argues that the appellees breached, as a matter of law, a common law duty of reasonable care in failing to see the train which was plainly visible, but we find no necessity of considering this point.
The controlling fact question was whether the view of L. D. Matthews was obstructed so as to prevent him from seeing the train. The controlling question of law is whether the evidence on that fact question was such as to sustain the finding, implicit in the jury verdict, that there was an obstruction of the view. If this question be decided for the railroad then its motion for a judgment notwithstanding the verdict should have been granted.
Just prior to the accident, L. D. Matthews turned off a primary highway onto an unpaved road known as Menefee Street. The crossing where he met the train is on this street between the highway and his home. He was familiar with the crossing. The railroad was elevated approximately four feet above the elevation of the street at the approach to the crossing. The street ran north and south and the Matthews car was traveling north. The track ran east and west and the train which struck the Matthews car was moving west. There was a house, referred to as the Parker house, thirty feet from and east of the street and 170 feet from and south of the crossing. Between the house and the track were some trees, a junked trailer and three junked cars. Nineteen feet from the crossing there was a railroad warning cross which was not equipped with warning lights.
The train consisted of fifteen cars and a caboose being pushed by an engine. The first railway car to reach the crossing, and consequently the one which struck appellees' car, was a gondola. The estimates of the speed of the train ranged from six to twenty miles an hour. It had rounded a curve 740 feet from the crossing and was traveling down a straightaway, into Tenaha. There was a lookout sitting on the gondola. The engineer did not blow the whistle nor did he ring the bell as he approached the crossing.
L. D. Matthews testified that as he turned onto Menefee Street leading to the crossing he was traveling between eight and ten miles an hour. It was, according to his testimony, a cold day with drizzling rain, a little sleet and a little snow. The windows in the car were rolled up and the heater and defroster were on. Both windshield wipers were working and visibility out the front was unobstructed. There was no evidence that the right front seat window was fogged up, or that there was any obstruction there. He testified that he looked to his left and right three times before driving onto the track. The first time he looked he was approximately seventy-five feet from the track and he failed to see a train. His view was obstructed, he testified, by the house, the old wrecks behind the house, and some sweet gum bushes. At one point in his testimony he estimated the height of the bushes to have been between fifteen and twenty feet, and at another point to have been between twenty-five and thirty feet high. The second time he looked, still traveling between eight and ten miles an hour, he testified that he was about...
To continue reading
Request your trial
-
United States v. Smith
...the witness could not possibly have observed what he claims to observe or his testimony defies physical laws. See Southern Pacific Co. v. Matthews, 335 F.2d 924 (5th Cir.1964) (civil case); Ferrar v. U.S., 275 F.2d 868, 869, 876-77 (D.C.Cir.1959). See also Wood v. U.S., 342 F.2d 708, 713 (8......
-
United States v. Narciso
...inherently unbelievable, or is opposed to natural laws." Born v. Osendorf, 329 F.2d 669, 672 (8th Cir. 1964). See Southern Pacific Co. v. Matthews, 335 F.2d 924 (5th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 562 (1965); Geigy Chemical Corp. v. Allen, 224 F.2d 110 (5th......
-
Holland v. Allied Structural Steel Co., Inc.
...seaman status often depends, evidence manifestly at variance with the physical facts must be disregarded. Southern Pacific Co. v. Matthews, 5 Cir. 1964, 335 F.2d 924, 927. II UNDISPUTED The evidence below established that James Holland went to work for Allied on January 29, 1971 and worked ......
-
Harrison v. Flota Mercante Grancolombiana, S. A.
...that the testimony of the plaintiff was so "inherently incredible" that it should be disregarded entirely. See Southern Pacific Co. v. Matthews, 335 F.2d 924, 927 (5th Cir. 1964). Rohm and Haas concedes that "normally, it would not be clearly erroneous for the trial judge to totally disrega......