Texas & N. O. R. Co. v. Broadway, No. 6347

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: McNEILL
• Citation: 345 S.W.2d 814
• Parties: TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. D. H. BROADWAY and D. L. Broadway, et al., Appellees.
• Docket Number: No. 6347
• Decision Date: 05 January 1961

Page 814

345 S.W.2d 814 TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant,
v.
D. H. BROADWAY and D. L. Broadway, et al., Appellees. No. 6347. Court of Civil Appeals of Texas, Beaumont. Jan. 5, 1961.
Rehearing Denied Feb. 1, 1961.

McGregor, Sewell & Junell, Houston, for appellant.

Fulmer, Fairchild & Badders, Nacogdoches, for appellees.

McNEILL, Justice.

This is a railroad crossing accident case. Appellees, D. H. Broadway and son, D. L. Broadway, sued appellant for damages for personal injuries resulting from a collision between a 1947 model Ford car which the son, as employee of his father, was driving and one of appellant's freight trains at what is known as the Mahl Crossing on FM Road 698 in Nacogdoches County. At the time the car was towing a cub farm tractor upon which the father was riding.

On trial to a jury appellant was found negligent in the following respects: (1) in failing to blow the train whistle at a distance of at least 1,320 feet from the crossing; (2) in failing to keep the bell ringing from such point until the engine entered the crossing. The jury also found the crossing at the time was an extra-hazardous one and appellant having failed to maintain an automatic warning signal thereat was also negligent. It found each of said acts of negligence was a proximate cause of plaintiffs' injuries, found damages in favor of D. H. Broadway in amount of $34,300 and in favor of D. L. Broadway in amount of $69,505, and further found appellees

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not guilty of contributory negligence. Judgment was rendered thereon, and at hearing upon new trial, after requiring the elder Broadway to file a remittitur of $11,500 and the younger Broadway a remittitur of $27,000, the trial court overruled motion for new trial.

Appellant appeals upon 18 points. Its first is, in effect, that since appellee D. L. Broadway, in operating the car in the manner he did as he approached the crossing, was guilty of negligence as a matter of law and the trial court should have instructed a verdict in favor of appellant. The point is argued both from the standpoint of common law negligence and also from failure to comply with requirements of Article 6701d, sec. 86(d), that since according to appellee D. L. Broadway's own testimony the car stopped within 20-25 feet of the track so he could look for a train, and since there was no obstruction at such place to keep him from having seen the train approaching as it came down the incline toward the crossing, although he stated he did not see the train, this cannot avail him for what is in plain sight must be seen. There was considerable testimony which supports the view that the train must have been in plain sight at the time but there was also testimony of probative value to the contrary.

The accident happened in clear, dry weather about 10:30 o'clock a. m., October 7, 1957. The road runs generally east and west and the railroad north and south. The train was approaching the crossing from the north going toward Nacogdoches and the car pulling the tractor was approaching from the east going west. Appellant owned an acre of land and section house with accompanying outbuildings in the northeast or pertinent corner of this crossing and the angle there between the railroad and the road was about 66 degrees. For some distance as the crossing is approached the road slopes gently toward the west and the railroad track slopes gently toward the south. The diesel engine pulling 14 freight cars and caboose had just come over a hill about 1,500 feet north of the crossing and was coasting toward the intersection at about 30 miles per hour and the car with the tractor in tow was approaching it at about 5-10 miles per hour. The testimony is sharply conflicting as to whether the train whistle was blown and the bell rung. All railroad employees upon the train testified that the whistle was blowing properly and most of them testified that the bell was rung. On the other hand, both appellees and two or more witnesses in the neighborhood at the time testified that they heard no bell rung nor whistle blown except they recall a whistle right at the moment of impact. Appellees both testified that the car was brought to a stop when its front end had reached 20 to 25 feet from the nearer rail and they looked both ways and listened for a train. The son stated that he looked to his right toward the north for a train but the high weeds or grass along the road bank at the point effectively obstructed his view. He looked to the left and could see down the track a good distance and saw no train; he listened and heard none coming. He then started slowly forward and in doing so had to look backwards because there was 4 or 5 feet of slack in his tow chain. In the meantime his car was slowly moving forward. When the slack was taken out of the chain he stated he glanced again to his left down the railroad tracks to the south and saw no train and was just bringing his head around to look to his right and to the north for a train when, because of a sudden jerk or heavy drag on his car from the rear, he turned his head again toward the left and rear to see what was causing it. As he did so the front of his car had reached the first rail and the front of the engine hit the car forward of the windshield and threw it sideways over into a ditch on his left side of the road. The sudden drag or pull from the rear was caused by appellee D. H. Broadway, who was seated on the tractor seat some 43 feet to the rear of the son, who had just caught a glimpse or view over the

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weeds and grass of the upper part of the moving train and applied the brakes of the tractor in an attempt to stop his son from reaching the crossing. That the father saw the top of the train when the son did not was explained by the fact that the former was sitting on the tractor seat which was somewhat higher than was the car seat. It may be explained also by the fact that the bank along the road was lower opposite the father.

Plaintiff's Exhibit No. 1 is reproduced here and shows the crossing involved.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It also shows the section house with a group of trees surrounding it with the bank of dirt along the roadside and railroad track with the crossbar railroad sign in that sector. As will be seen from this picture, the highest part of the bank is at or near the intersection of the two ridges. Various witnesses put the height of this part of the bank along the road at from 2 1/2 to 5 feet above the level of the paved surface of the road. The distance from the nearer track to the railroad crossbar is 10 1/2 feet and from the nearer rail to the highest point or knob of the bank was estimated at from 12 to 18 feet. The year 1957 was a wet one and the accident happened after the full growth of the growing season of grass and weeds and before frost had struck tree leaves and other vegetation. The picture was taken on November 14, 1957 from a 5 foot level at a point 100 feet south of the crossing. Between the time of the accident and the taking of the picture a grass fire had burned off the area in the corner of the northeast sector. Much dispute is reflected in the six volume statement of

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facts as to whether high weeds or Johnson grass obstructed the traveler's view until he had reached to within 12 to 15 feet of the nearer rail of the track. there was proof on the one hand that the section house had been vacant for some 2 months before the accident and rank grass and weeds had taken the place; while for appellant there was proof the section crew cut the area to keep down this growth. In determining whether appellees were negligent as a matter of law, we must consider the evidence in its most favorable light to appellees and rejecting all evidence favorable to appellant. Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139. In this view, even though towing the tractor added to the amount of care to be exercised by appellees, the question was one properly for the jury. Since appellees stopped, looked and listened for a train and thus exercised some care and caution in approaching the crossing, it was for the jury to say whether they were negligent under the circumstances. Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332; Texas & New Orleans R. R. Co. v. Day, 159 Tex. 101, 316 S.W.2d 402.

Conceding, as we must, the physical facts were such that appellee D. L. Broadway could have seen the train after he had passed the high point of the ridge or bank of dirt to his right which would put him within 12 to 18 feet of the nearer rail of the track and the front end of his car some 6 or 7 feet closer, the...