State Highway Dept. v. Pinner

• Citation: 531 S.W.2d 851
• Decision Date: 26 November 1975
• Docket Number: No. 7730,7730
• Parties: STATE HIGHWAY DEPARTMENT, Appellant, v. Ruth PINNER, a feme sole, Appellee.
• Court: Texas Court of Appeals

Page 851

531 S.W.2d 851

STATE HIGHWAY DEPARTMENT, Appellant, v. Ruth PINNER, a feme sole, Appellee.

No. 7730.

Court of Civil Appeals of Texas,

Beaumont.

Nov. 26, 1975.

Rehearing Denied Dec. 31, 1975.

John L. Hill, Atty. Gen., Austin, O. J. Weber, Jr., Beaumont, for appellant.

G. I. Low, Beaumont, Joe H. Tonahill, Jasper, Bill A. Martin, Newton, for appellee.

DIES, Chief Justice.

In September 1970, Jessie Pinner was driving south on Highway 87 in Newton County, Texas. At about 8 A.M., in fog, he collided with an east bound (coming from his right) Missouri Pacific train and was instantly killed. The crossing had signal lights on both sides of the highway, and both were functioning before the collision. Shortly prior thereto the Texas State Highway Department had dispatched several vehicles to this area to repair the road. These vehicles were parked on the northwest side of the crossing. None of them were on the main-traveled portion of the highway. But one of them had blinking red lights on the top, and one (a pickup) had a revolving amber light. These lights were turned on. Pinner's widow brought suit under the Texas Tort Claims Act against the State Highway Department, and after a jury trial was given judgment in excess of $250,000 from which the Highway Department perfects this appeal.

Appellant's Points of Error Nos. 11 through 13 (which were argued first) quite eloquently argue that the evidence convicts Pinner of negligence as a matter of law. This is a very difficult and heavy load to carry in Texas. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Texlan, Incorporated v. Freestone County, 282 S.W.2d 283 (Tex.Civ.App.--Waco 1955, no writ); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952).

"An issue of fact is raised 'if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, the jury might have found in favor of the plaintiff."' Alexander v. Appell Drilling Co., 290 S.W.2d 377, 380, 382 (Tex.Civ.App.--Waco 1956, writ ref'd n.r.e.).

As previously noted in this opinion, appellant had vehicles with lights turned on parked on the west side of the crossing. There is no proof that there was any vehicle parked on the east side of the crossing, which also had a signal. The jury found (in S.I. No. 1) that appellant had located its vehicles along the west side of the highway in such a manner as to materially obstruct Pinner's view of the approaching train, that this was negligence, and a proximate cause of the collision. It also found (in S.I. No. 5) appellant negligent in parking and locating its dump truck and other vehicles with blinking and rotating lights thereon at and near the railroad crossing, creating confusion and distracting Pinner's view of the signal lights and approaching train.

Mrs. Louis Johnson got to the crossing in question before the train had stopped. It was very foggy. The first thing she saw 'was some highway trucks parked on the shoulder of the road and their light flashing.'

'Q. And you say they were parked even with the railroad lights?

'A. Yes, sir. You could see the railroad lights flashing but you had to be looking for them.'

She said these lights (on the highway trucks) confused and distracted her. The trucks were parked 'in such a way' they obstructed the railroad signal lights.

B. J. Biscamp, a TV repairman in Newton, was driving behind. It was foggy, he saw 'yellow trucks' and 'it looked like one of them had a sign sticking up in the truck.' He didn't see the railroad signal lights because of the trucks, 'he imagined.' He didn't see any lights on the trucks. Conductor Doyle was seated on the left side of the engine and saw the collision. He said 'I don't know whether these trucks prevented him (Pinner) from seeing the signal or not.'

Highway Patrolman Lambert arrived at the crossing about twenty minutes after the accident. He was asked (by appellant's counsel), 'Would the State Highway Department vehicles obstruct the view of one coming from the direction of Mr. Pinner?' His answer was, 'Not one hundred per cent, no. . . . But, they shouldn't have prevented him from seeing the light on his left,' he said. He measured the nearest highway department vehicle at seventy feet from the nearest track. He measured Pinner's skid marks as forty-two feet. While the highway vehicle flashing light was turned off when he got there, it could be confusing when on.

Witnesses for the Highway Department established that there was a dump truck with an iron wheel roller attached, a pickup truck, a maintainer, and a tractor, with rotary boom attached. There was an amber rotating light on the pickup. The dump truck had red lights on top.

While almost all of the testimony of Mrs. Johnson and Biscamp was disputed, still this, together with the undisputed testimony of the presence of the vehicles and the lights referred to, factually support the jury's finding in S.I. No. 1 and S.I. No. 5.

Using the test above cited in considering this summarized evidence, we cannot conclude Pinner was negligent as a matter of law. These points are overruled.

Appellant's first point of error contends the trial court erred in refusing to render judgment for it based on jury's answers to S.I. Nos. 13, 14A, 14B, 17, and 18. In passing upon this point of error it must be kept in mind that appellant is seeking in this case to take advantage of three of the four defenses provided for in Tex.Rev.Civ.Stat.Ann. art. 6701d, § 86 (1969), which reads 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:

'(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train . . ..

'(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.'

Subdivision (c) was submitted to the jury by S.I. Nos. 13, 14, 14A, and 14B. In its answer to S.I. No. 13 the jury found the train emitted the audible signal, but in 14 it found that the engine did not constitute an immediate hazard. The jury therefore failed to find Pinner guilty of negligence per se in that respect. Issues 14A and 14B were excuse issues connected with subdivision (c) and answers to those two issues were immaterial.

Subdivision (d) was submitted to the jury by S.I. Nos. 15, 16, 17, and 18. In answer to those issues, the jury found the train was plainly visible and in hazardous proximity to the crossing; and, that Pinner failed to stop within 50 feet, but not less than 15 feet; and that such failure was a proximate cause of this collision in question. Pinner was thereby convicted of negligence per se under Subdivision (d) which proximately caused this collision. However, in answer to 18A that Pinner could not by the exercise of ordinary care have stopped his vehicle within that distance, and in answer to 18B the jury found Pinner's inability to stop was not caused by his own negligence.

The jury 'excused' Pinner's compliance with the statute, and the trial court did not err in refusing to render judgment for appellant. Christy v. Blades, 448 S.W.2d 107 (Tex.1969); Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). See also Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973). The jury found, in the answers to S.I. Nos. 18A and 18B, that Pinner was unable to stop by finding that he could not stop, and that his inability was not caused by his own negligence. 'Inability' is a recognized 'excuse' under the Restatement of Torts, and the case law as cited above. These excuse issues are supported by the same evidence quoted above in passing upon the points of error contending Pinner was negligent as a matter of law.

Appellant's Points of Error Nos. 2, 3, 4, and 5, assert the court erred in refusing to set aside the jury's answer to S.I. No. 12 because there was no evidence to support it; as a matter of law there was a clearly visible signal; there was insufficient evidence to support the finding, and the answer was so against the great weight and preponderance of the evidence as to be clearly wrong.

S.I. No. 12 submitted subdivision (a) under § 86 of Tex.Rev.Civ.Stat.Ann. 6701d (1969), as set out above, and the jury failed to find that a clearly visible electrical or mechanical signal gave Pinner warning of the immediate approach of the train.

Appellant's argument here is that since all of the evidence put its vehicles on the west side of the highway, therefore, there is no evidence the light on the east side was obscured. Of course, S.I. No. 12 does not specify either side of the highway, but assuming arguendo that appellant's contention is good, it is nevertheless immaterial. An affirmative answer to S.I. No. 12 would convict Pinner of negligence per se, but no issue as to proximate cause connected with this issue was requested or submitted to the jury. In the absence of a finding as to proximate cause, the trial court could not render judgment for appellant on the negligence issue alone. See Erwin v. Welborn, 207 S.W.2d 124, 128 (Tex.Civ.App.--Amarillo 1947, writ ref'd n.r.e.); see also Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422, 425 (1954). These points are overruled.

Appellant's Points of Error Nos. 6, 7, 8, and 9 all refer to the jury answer to S.I. No. 14 contending that there was no evidence to support it; as a matter of law the train constituted an immediate hazard, there was insufficient evidence...