Stanley v. Southern Pac. Co.

• Decision Date: 21 April 1971
• Docket Number: No. B--2452,B--2452
• Citation: 466 S.W.2d 548
• Parties: Velma Eloise STANLEY, Petitioner, v. SOUTHERN PACIFIC COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 548

466 S.W.2d 548

Velma Eloise STANLEY, Petitioner, v. SOUTHERN PACIFIC COMPANY et al., Respondents.

No. B--2452.

Supreme Court of Texas.

April 21, 1971.

Rehearing Denied June 2, 1971.

Kilgore, Cole & Garrett, W. W. Kilgore and Emmett Cole, Jr., Victoria, Robert S. Pieratt, Houston, Thomas R. Bell, Edna, for petitioner.

Anderson, Smith & Null, Joseph P. Kelly and Conde N. Anderson, Victoria, for respondents.

GREENHILL, Justice.

This action arose out of an intersection collision between an automobile and a Southern Pacific train. Trial was to a jury; and based on certain jury findings, judgment was entered for the plaintiff. The main question here is whether there is evidence to support the answers of the jury to the findings upon which the judgment rests. The court of civil appeals, finding no evidence to support the jury's verdict, reversed the judgment of the trial court and rendered judgment for the railroad. 459 S.W.2d 232. We find there is evidence to support the jury's verdict. Accordingly we reverse the judgment of the court of civil appeals and remand the cause to that court to pass upon other points including the sufficiency of the evidence.

This is a companion case to Gentry v. Southern Pacific Company, 457 S.W.2d 889 (Tex.1970). Two men, the driver and a passenger, were killed in the automobile which collided with the train. Two separate suits were filed. They were tried together, but separately appealed. The Gentry case involved the driver; and this suit involves the passenger, Stanley. The plaintiff is Velma Eloise Stanley, widow of Ernest Stanley, deceased.

The engineer and fireman of the railroad were found to have been negligent in certain respects as will be discussed below. The driver of the automobile, Gentry, was found to have been guilty of contributory negligence; but the jury found the discovered peril issues against the railroad. The trial court in Gentry, finding no evidence to support the discovered peril issues, disregarded those issues and entered judgment for the defendant railroad because of the contributory negligence of Gentry. That judgment was affirmed. 457 S.W.2d 889.

While this case involves the same collision, the same jury's verdict, and virtually the same record on appeal, the problems are different. There is no contention that the contributory negligence of the driver, Gentry, is attributable to his passenger, Stanley; and the jury acquitted Stanley of contributory negligence. The discovered peril issues in Gentry turned upon whether the operators of the train's engine, as individuals, Actually discovered and realized the peril of the plaintiffs in time to have avoided the collision; and whether, after such discovery and realization, they failed to exercise ordinary care. The issue there was Actual discovery and realization by the individuals. The holding was that, as a matter of law, they did not discover and realize the peril of those in the automobile in time to have avoided the collision. Gentry v. Southern Pacific Co., supra; Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962).

The negligence problem here is different. It is whether the fireman or engineer, under all the circumstances, acted as persons of ordinary prudence. It encompasses what a person of ordinary prudence Should know and realize, and is not limited to what they actually did know and realize.

The critical jury findings, set out just below, are numbered as they appeared in the jury's charge; but they are rearranged for purposes of the opinion. Our problem is whether there is some evidence to support them.

As to the engineer, Weitzel, the jury found:

(6) He did fail 'to reduce the speed on the train . . . at the time when a person of ordinary prudence in the exercise of ordinary care would have reduced the speed of said train;' and (7) this was a proximate cause.

As to the fireman, Forman, the jury found:

(4) His failure 'to apply the emergency brake on the defendant's train' was negligence; and (5) a proximate cause.

Much of the evidence about the collision is detailed in the Gentry opinion, 457 S.W.2d 889; but our duty at this stage is to consider only the evidence favorable to the jury's verdict. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

The accident occurred in a rural area on a clear day. As will be discussed, the highway and the railroad tracks are almost at right angles to each other. There were some trees along the railroad's right of way; and there was some fairly thick brush which obscured the vision of the car from the train's engine from the time that the engine was 200 to 300 feet from the crossing until the engine was about 100 feet from the crossing. As will be developed, the emergency brake of the train was applied when the train came from behind the brush about 100 feet from the crossing.

The automobile was being driven in a northerly direction at a speed estimated to be between 60 and 65 miles per hour. There were signs to warn the driver of the crossing including flashing red lights. The train was approaching from the east at approximately 37 to 40 miles per hour. The train consisted of four power units, 114 freight cars, and a caboose.

The engineer of the train, Mr. Weitzel, sat on the right hand side of the engine, the side away from the approaching car. He controlled the throttle and the brakes ordinarily used. There were four possible settings of his brakes to control the rate of deceleration: lap, holding, service, and emergency.

The fireman, Mr. Forman, sat on the left hand side of the engine. His duty was to look ahead and to the left, from which direction the car approached, and to inform the engineer of approaching traffic. The fireman also had an emergency brake.

The fireman first discovered the automobile when it was 2,000 or more feet from the crossing, and at a time when the engine was about 1,000 feet from it. The fireman testified that at that point he told the engineer, 'We got a car coming up on my side pretty fast. . . . Blow your whistle for all it has got.' The engineer did sound his whistle or horn; and he placed his hand on the brake lever, but he did Not apply it. The fireman testified that the engineer did not do anything else; i.e., nothing except sound the horn and bell.

The engineer's version was that when the train was about 1,000 feet from the crossing, the fireman told him, 'There will be a car coming.' The engineer testified that the fireman only notified him if a car constituted some hazard; and that if, at 1,000 feet, he (the engineer) had eased off on the throttle and 'reduced the air on the brake,' 'it would have slowed it (the train) down.'

Beginning at a point when the engine was about 1,000 feet from the crossing, and the automobile was about 2,000 feet from it, the fireman continued to watch the automobile. There is an inconsistency in the testimony of the fireman as to how far the car was from the crossing when it disappeared from the fireman's view because of the brush. Our opinion in Gentry construes the fireman's testimony, as it related to the discovered peril issues, to be that the automobile was then about 500 or 600 feet from the crossing. Later in his testimony, he placed the car only 200 to 300 feet from the crossing when it disappeared behind the brush. He also testified that when the automobile went out of his sight, the train's engine was 200 to 300 feet from the crossing. 'I would say about 300 feet.' The fireman testified that the driver of the car had not reduced his speed up to that point. The engineer testified that when the engine got to within about 300 feet from the crossing, he could tell that 'they weren't reducing their speed,' which was estimated at 60 to 65 miles per hour.

As stated, when the train was about 300 feet, and the car was 200 to 600 feet from the intersection, the car went out of the sight of the fireman. When the fireman next saw the automobile, the train was about 100 feet from the crossing. 'He was right up there pretty close to the crossing . . . and that was when I told the engineer to stop. . . .' He did not apply his emergency brake, but he called out to the engineer, 'They are going to hit us, stop.' and 'put the brakes into emergency. . . .' The engineer then put the brakes into emergency. It was too late and the train ran into the car at the crossing, striking the car on the passenger's side, between the front tire and the right front door.

The plaintiff put on an expert witness, a Mr. Dillard, to testify as to custom in the industry. Dillard had been a fireman and engineer for the Missouri Pacific for 20 years; and, as set out below, he was asked about the custom among firemen and engineers under circumstances similar to those here. Several objections were made to his testimony; but the only objection preserved by the railroad (its point 16 in the court of civil appeals) was that it was error to admit the testimony because it was 'to the effect of what he (Dillard) would have done under the circumstances.' We construe the objection and the point to be that Dillard did not give testimony as to custom but only as to his personal experiences and opinion. The trial court did not so construe it; and as pointed out below, he limited, or attempted to limit, the testimony to custom. Some of this testimony is set out below, and it is capable of the interpretation that the witness was testifying about custom and not merely about personal opinion. In admitting such testimony, the trial judge is called upon to exercise his discretion. 2 Wigmore on Evidence (3rd ed) 316, § 379.

It is pointed out in 2 McCormick & Ray on Evidence (2nd ed) 376, § 1527, that the customary conduct of other persons generally in a similar situation or business is relevant and admissible. The first example is, 'Thus a railroad company charged with negligence in the operation of a train, or the management of a switch, may...