Texas and New Orleans Railroad Co. v. Alexander

• Citation: 163 Tex. 531,358 S.W.2d 584
• Decision Date: 20 June 1962
• Docket Number: No. A-8717,A-8717
• Parties: TEXAS AND NEW ORLEANS RAILROAD COMPANY, Petitioner, v. James R. ALEXANDER et al., Respondents.
• Court: Supreme Court of Texas

Page 584

358 S.W.2d 584

163 Tex. 531

TEXAS AND NEW ORLEANS RAILROAD COMPANY, Petitioner, v. James R. ALEXANDER et al., Respondents.

No. A-8717.

Supreme Court of Texas.

June 20, 1962.

Keith, Mehaffy, McNicholas & Weber, Beaumont, for petitioner.

Bill J. Sanders and Carl Waldman, Don Sanders and D. F. Sanders, Beaumont, for respondents.

CULVER, Justice.

This suit was instituted by James R. Alexander, Tommy Pasley, Joseph Palique and Charles Worthy against The Texas and New Orleans Railroad Company to recover damages for personal injuries alleged to have been sustained by them as a result of the automobile in which they were riding being driven over and upon the defendant's railroad tracks at a point where there was no crossing and where the rails were exposed.

One of them, Charles Worthy, on his motion, was granted a non-suit. At the conclusion of plaintiff's testimony the court instructed a verdict in favor of the defendant, Railroad Company. The Court of Civil Appeals has reversed and remanded, holding 'that the evidence raised an issue to go to the jury as to whether appellee was negligent in failing to place a warning sign at the intersection of Franklin Street and the railroad tracks to warn oncoming traffic that the street did not continue straight across the tracks in a southerly direction.' We are not in accord with that decision.

These respondents met in Beaumont, Texas, one evening and decided to proceed to Lake Charles, Louisiana. On arrival there they drove about the town, stopping at various places for food, drink and entertainment until about 4 o'clock the following morning. At that time they were driving south on Franklin, a paved street, which swerved slightly to the east before it reached the railroad right-of-way and the tracks. The driver of the automobile, proceeding at a rate of 30 to 35 miles per hour, failed to take note of this fact and drove directly forward upon the exposed rails. A railroad crossbuck warning sign was in place on the railroad right-of-way variously estimated at some 25 to 40 feet to the right of the roadbed of Franklin Street. An expert witness, a safety engineer, testified that the crossbuck sign was located 28 feet west of the Franklin crossing. He also testified that from the point where Franklin Street began to slant to the east, the distance to the nearest exposed rail, was 85 feet. There was a gravel street running east and west and parallel with the railroad right-of-way which intersected Franklin Street.

The Court of Civil Appeals was of the opinion that the position of this crossbuck sign tended to create an illusion to the automobile driver that the street continued directly across the tracks. The court points out, however, that this fact was not pleaded as a ground of negligence and therefore is one on which the respondents could not rely. Nevertheless the court holds that since the circumstances did create that illusion, whether the railroad company was negligent in failing to place a warning sign at the intersection of Franklin Street and the railroad tracks to warn that the street did not continue straight across the tracks, became a question of fact.

(1) It is argued that the railroad company is obligated to maintain that part of a street lying within its right-of-way in a reasonably safe condition for the traveling public, and the company owes the duty to warn the public of any unsafe condition of the crossing. With that principle of law we do not disagree, but in the case here there was nothing unsafe about...