Texas Mexican R. Co. v. Bunn, 12565

• Decision Date: 09 December 1953
• Docket Number: No. 12565,12565
• Citation: 264 S.W.2d 518
• Parties: TEXAS MEXICAN R. CO. v. BUNN.
• Court: Texas Court of Appeals

Page 518

264 S.W.2d 518

TEXAS MEXICAN R. CO. v. BUNN.

No. 12565.

Court of Civil Appeals of Texas, San Antonio.

Dec. 9, 1953.

Rehearing Denied Feb. 10, 1954.

Carl Wright Johnson, Nat L. Hardy, San Antonio, Elmore H. Borchers, Laredo, for appellant.

Raymond, Algee, Alvarado, Kazan & Woods, Laredo, Lieck & Lieck, Robert R. Murray, San Antonio, for appellee.

NORVELL, Justice.

This is a railway crossing collision case. By its first point, the appellant railroad company asserts its principal contention that appellee was guilty of contributory negligence as a matter of law. As counter thereto, appellee says that his evidence supports the theory that the appellant's Diesel switch engine silently and without warning emerged from the darkness of the night into the street immediately in front of appellee's automobile, and thus negligently caused the collision and appellee's resultant damages. Other subsidiary points are raised by the brief, and those calling for discussion will be treated hereinafter.

It is necessary to describe the crossing involved and its surrounding environs in some datail. In cases of conflict in the evidence, appellee's version is accepted, as the jury's findings were favorable to him and to the effect that appellee was free of contributory negligence, while appellant's agents and servants were guilty of negligence proximately causing the collision.

The collision between appellant's Diesel motor and appellee's automobile occurred shortly ater midnight on the morning of December 17, 1951. Appellee was traveling in an easterly direction along Market Street in the City of Laredo. The Diesel was traveling in a northerly direction along the main track of the company which crosses the street at an angle of about fifteen degrees off the right angle, that is, the track veers to the west about fifteen degrees from a ninety degree crossing. The area surrounding the crossing is industrial in nature and a number of factories, warehouses and supply depots are situated nearby. There are five railroad tracks in the immediate vicinity and during the trial, by common consent, these were numbered 1 to 5, beginning with the most easterly track. The track where the collision occurred, sometimes called the main track, was given number 3. Tracks Nos. 1 and 2 (the most easterly tracks) run together at Market Street, and at that point are about 50 feet from the main track. To the south of the street and east of Track No. 1 is a large building occupied by the Laredo Boiler Works. This building is generally referred to in the record as Building No. 2, as it was so designated upon an exhibit used upon the trial. It is situated about 12 feet south of the south line of Market Street and 20 feet east of the most easterly railroad track in the vicinity (Track No. 1. There is no Track No. 2 south of Market Street.) and approximately 60 feet from the main track (No. 3). The building is about 65 feet in length from north to south. To the north of the street and east of Tracks Nos. 1 and 2 (here separated) is a large warehouse occupied by Gutierrez Wholesale Grocery Company, which is served by spur Track No. 1. Market Street at the point where it crosses the railroad tracks involved, is approximately 40 feet in width and has a black asphalt topping. At the time of the collision there was a street light containing a ninety watt globe on the north side of Market Street and about 50 feet west of the main track. Further to the east, along Market Street and past the most easterly track (No. 1), there was a string of street lights-one about every block-according to appellee's testimony. The main track, or Track No. 3, was protected by an automatic electric flasher signal, which is energized by an electric contract point along the track about 40 feet south of the south curb line of Market Street. Appellee testified that this flasher signal was not working on the night of the collision. He further testified that he heard no warning whistle, horn or bell, and that he did not see the engine prior to the collision. He testified that what he saw immediately before the impact was 'just a flash. It was an object that came in front of me with a flash. * * * I did not know if it was an engine or train or a flying saucer.'

While appellant's first point simply states that the undisputed material evidence shows that the accident in which plaintiff was injured was the result of his own negligence, the development of the argument suggests two theories of contributory negligence calling for discussion. The first is based upon an asserted violation of Article 6701d, § 86, Vernon's Ann.Tex.Stats. The second is the asserted failure of appellee to conform to the standard of conduct measured by the test of the reasonably prudent man.

In connection with appellant's first point, it is necessary to discuss certain contentions specifically raised by its third and fourth points, wherein it is asserted that the jury's findings against the appellant upon issues of primary negligence are without support in the evidence. Particularly is this true of the findings of failure to sound the horn or ring the bell upon the Diesel motor upon approaching the crossing. It is likewise necessary to discuss the asserted error of the trial court in permitting the introduction of testimony relating to 'other accidents, near-accidents, and incidents occurring at or near the crossing.'

We first consider the effect of Article 6701d § 86, which is an imperative enactment of the Legislature enjoining the driver of a motor vehicle to do certain specified things when conditions render the statute applicable. Texas & New Orleans R. Co. v. Stewart, Tex.Civ.App., 248 S.W.2d 177; Zamora v. Thompson, Tex.Civ.App., 250 S.W.2d 626. The command to the driver of the motor vehicle approaching a railroad grade crossing is to stop the vehicle within 50 feet, but not less than 15 feet, from the nearest rail of the railroad and not to proceed until he can do so safely.

This command is operative whenever (to quote the statute)

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

'(b) A crossing gate is lowered, or when a human flagman gives or continues to give a signal of the approach or passage 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.'

As to subdivision (a), appellee testified that the electric signalling device was not operating at the time he approached the crossing. In this he was corroborated by witnesses who appeared on the scene shortly after the collision, when the Diesel motor was in a position upon the rails which would have caused the device to operate had it been in working order. This evidence was contradicted, but the jury's finding that the device was not working is binding upon this Court.

Subdivision (b) of the article is not applicable to the facts of this case.

Subdivision (c) becomes operative upon the emission of an audible warning signal. Upon this point, we are again confronted with a conflict in testimony. The jury found that the operator of appellant's Diesel motor failed to operate the whistle or horn prior to entering Market Street; that this was negligence and a proximate cause of appellee's injuries. Appellee testified that as he approached the crossing he did not hear either a warning whistle or horn, nor did he hear the ringing of a bell. He testified, perhaps by way of conclusion, that, although it was a cold night and he had the windows of his automobile rolled up, he would have heard the warning had a horn been blown or a bell rung. He also testified to facts and circumstances which would tend to support that conclusion, such as his approximate distance from the crossing at a time when the Diesel motor necessarily must have been in close proximity thereto; the fact that his hearing was good and that upon previous occasions he had heard an engine's warning when his automobile windows were closed. The members of the train crew testified affirmatively that the horn on the motor was sounded and that the bell was rung, and appellant contends that appellee's testimony upon the point must be rejected as insufficient to raise a jury issue in that it was negative in nature. Appellant relies upon the case of Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112, wherein it was held that the negative testimony of the occupant of a closed automobile which had a windshield wiper operating, that she could not tell whether the bell of the engine was sounding or not, was insufficient to raise the issue of failure to ring the bell. The Supreme Court held that in order to raise this issue, it was not only necessary to show that the bell or other warning device was not heard by the witness, but also that the witness was in a position to have heard the same if the same were sounded. From appellee's testimony, independent of any conclusion he may have expressed, the jury could reasonably conclude that Bunn was in a position to have heard a warning device had one been sounded. Texas & New Orleans R. Co. v. Krasoff, 144 Tex. 436, 191 S.W.2d 1. We conclude, therefore, that subdivision (c) of Article 6701d was not applicable to the case under the jury's findings.

The question of the applicability of subdivision (d) of the article, as well as the assertion that appellee failed to comply with the standard of care required by the common law may be considered together, bearing in mind, however, that the statute uses the words 'plainly visible,' and it is possible that a train may not be 'plainly visible' and yet a motorist may be guilty of contributory negligence barring a recovery if he fails to use...