Texas City Terminal Ry. Co. v. Blaha

• Decision Date: 08 November 1973
• Docket Number: No. 16122,16122
• Citation: 502 S.W.2d 204
• Parties: TEXAS CITY TERMINAL RAILWAY COMPANY, Appellant, v. Norman Eric BLAHA et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 204

502 S.W.2d 204

TEXAS CITY TERMINAL RAILWAY COMPANY, Appellant, v. Norman Eric BLAHA et al., Appellees.

No. 16122.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Nov. 8, 1973.

Rehearing Denied Dec. 6, 1973.

Bedford, Lambdin & Schwab, Griffith D. Lambdin, Galveston, for appellant.

Helm, Jones & Pletcher, David H. Burrow, Houston, for appellee Norman Eric Blaha.

Chilton Bryan, Lowell T. Cage, Houston, for appellee A--1 Taxi Co.

COLEMAN, Chief Justice.

This suit resulted from a nighttime collision between a taxicab and a railroad flatcar at a point where the railroad crossed a private road owned by the railway company. The plaintiff was a passenger in the taxicab. A judgment for the plaintiff was rendered after a jury trial. The taxi company was not found to be negligent and the plaintiff has not appealed from the judgment.

The principal questions debated on appeal concern the status of the plaintiff as licensee, or an invitee, on the premises of the defendant Railway Company, and the duty of the Railway Company to warn the plaintiff of the presence of the flatcar on the crossing where both the railroad track and the street were owned by the Railway Company. We conclude that the plaintiff occupied the status of an invitee and that the Railway Company, as to him, had a duty to use ordinary care to provide a safe crossing or to give adequate warning of the dangerous condition existing at the crossing. However we are of the opinion that the presence of the flatcar on the crossing was itself adequate warning in the absence of a finding that the crossing was extrahazardous.

The plaintiff was employed by the American Oil Company to work as a member of the crew of an oil tanker. The Texas City Terminal Railway Company owns a 350 or 400 acre tract of land extending to the water front in Texas City. It is an old, well established industrial development, in which a number of businesses are operated on leased sites. The water front is improved with some twenty-four docks for ships and barges, most of which are leased to private concerns. The industrial sites and the docks are served by spur tracks and private roads. The roads were built and are maintained by the Railway Company for the use of its tenants and their employees and customers, as well as for its own use. There are some twelve places where the private roads cross the spur tracks.

The oil tanker on which plaintiff was employed reached the dock leased by American Oil Company on February 14, 1967. After plaintiff completed his work he went into town by taxicab to do some shopping. At about 9:30 p.m. he engaged a taxi to take him back to the ship. The taxi driver was familiar with the industrial area and entered the defendant's premises on Dock Road. He was familiar with the road and the various railway crossings. As one enters the industrial area on Dock Road he travels in an easterly direction for some distance making several turns. The road turns sharply to the south and then is straight for several hundred yards before reaching the intersection at which the collision occurred. This intersection is unmarked and unlighted.

The plaintiff was an employee of American Oil Company, a tenant of the Railway Company. When the plaintiff entered the private road for the purpose of returning to his place of employment, he occupied the status of a business visitor as regards American Oil Company. The road was furnished by the Railway Company for the use of business visitors of its tenants. Plaintiff was an invitee rather than a licensee. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Houston Belt & Terminal Ry. Co. v. Rogers, 44 S.W.2d 420 (Tex.Civ.App.--Galveston 1931, writ dism'd).

The owner or occupier of property must exercise ordinary care either to warn or to protect his invitee against conditions of the premises which would involve an unreasonable risk to his safety, the danger of which would not be open or obvious to a person exercising ordinary care. He is under no duty to take further action for his protection if he has provided an adequate warning of the dangerous condition. Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.1967).

The occupant's liability for injuries sustained by the invitee rests on the owner's superior knowledge of the danger, and he is not to be held liable where the danger is as obvious to the one as to the other. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

It is settled law that the presence of a railway car on a crossing is ordinarily a sufficient warning of the danger to be encountered at the crossing, even at night when conditions make visibility poor. Texas & N.O.R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App.--San Antonio 1934, writ ref.); Texas City Terminal Ry. Co. v. Allen, 181 S.W.2d 727 (Tex.Civ.App.--Galveston 1944, writ ref.).

From Texas & N.O.R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 (1940), we quote:

'Another ground relied upon was the failure of the railroad company to use extraordinary means to give warning, such as to equip its freight cars with lights and have same burning at night, to equip its crossing with signal bells or lights or to have a watchman stationed thereat. Negligence cannot be based upon such omissions, for the crossing was not extrahazardous and therefore no duty was cast upon the railroad company to observe these extraordinary precautions. It would be difficult to conceive of a railroad crossing at which the hazards would be more obvious than at this one .'

A railroad car on a crossing is an open and obvious condition. The cases hold that when the night is dark and cloudy, or fog is present, these conditions are known to the motorist and it is incumbent on the motorist to keep his automobile under such control that it can be stopped within his range of vision, and that the operators of a train can properly assume 'that persons traveling upon the highway would exercise the care incumbent upon them in the hazards of the night to keep their cars under control so as to be able to avoid colliding with objects which should have been disclosed by their headlights.' Texas City Terminal Ry. Co. v. Allen, supra.

A railroad crossing may be more than ordinarily dangerous in which event the railway company is charged with a duty to warn the motorist if it knows or is charged with knowledge of the hidden danger.

In Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925 (1953), the court said:

'These cases clearly hold that an extra-hazardous crossing may arise (1) from permanent conditions, or (2) from temporary conditions which make the crossing extra-hazardous at the time the injury occurs.

'But in the latter situation the substantial conditions rendering a crossing temporarily extra-hazardous must be due to some act or omission of the railway employees, because only under those circumstances could the defendant know or fairly be charged with knowledge that the crossing is temporarily extra-hazardous. . . .'

In answer to issues submitted the jury found that the Railway Company was negligent: (1) failing to provide a flagman at the crossing in question; (2) failing to keep a proper lookout; (3) failing to sound the train's whistle immediately before the collision; (4) failing to ring the bell on the engine immediately before the collision; (5) allowing the railway flatcar to block Dock Road for such a period of time; (6) failing to have reflectors on the side of the flatcar; (7) failing to have a street light installed at the crossing in question.

No issue was submitted to determine whether the crossing was extra-hazardous although the plaintiff had requested such an issue. He has not assigned error to this action of the court. There is no evidence of any act or omission of the railway employees causing the crossing to be temporarily extra-hazardous. There is evidence of a tool shed in the vicinity which at some point along the road might make the engine more difficult to see, but it would not interfere with the motorist's view of the flatcar which was obstructing the road. There is evidence that there was a light some one hundred feet toward the dock area, and that lights were present all along the dock area. There is no testimony that these lights troubled the taxi driver or created an illusion. The shell road was dusty and it was constructed by the railway company. The taxi driver testified that he was watching an approaching car, and that he first saw the flatcar when he passed this car. This was the first crossing accident known to the company. There is no evidence of anything else of a permanent nature which would prevent the occupant of a car on the road from seeing the flatcar on the crossing. A railroad car standing on a railroad crossing does not cause that crossing to be deemed extra-hazardous. Missouri-Kansas-Texas Railroad Company v. Bernhardt, 418 S.W.2d 368 (Tex.Civ.App.--Austin 1967, writ ref., n.r.e.).

No issue of an extra-hazardous crossing was raised by the evidence . The railway company objected to the issues submitted on the ground that it owed no duty in the absence of a finding that the crossing was extra-hazardous. This objection was well taken and the trial court erred in submitting each of the issues asking about the negligence of the railway company, and also erred in overruling its motion to disregard the jury finding. The fact that the road was not a public road and that the crossing on which the accident happened was owned by the railway company does not alter the situation except to charge the company with knowledge of the dusty road. The legal principles herein discussed are applicable in this case as well as in the case of a railroad crossing a public highway.

The judgment is reversed in part and judgment is here rendered that Norman Eric Blaha take nothing from the defendant, Texas City Terminal Railway Company. The judgment that Norman Eric Blaha take nothing from the defendant, A--1...