Texas & N. O. R. Co. v. Pettit, 5085
| Decision Date | 04 May 1956 |
| Docket Number | No. 5085,5085 |
| Citation | 290 S.W.2d 730 |
| Court | Texas Court of Appeals |
| Parties | TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. John Dixon PETTIT, Appellee. |
Keith, Mehaffey, McNicholas & Weber, Beaumont, for appellant.
J. F. Gardner, San Antonio, Thos. A. Wheat, T. J. Hightower, Liberty, for appellee.
This is an appeal from a judgment in favor of John Dixon Pettit, appellee, against Texas and New Orleans Railroad Company, appellant, in the district court of Liberty County, for damages for personal injuries received in a night-time collision of a truck and a railroad tank car.
Appellee Pettit was the driver of a large van-type truck, driving west along Highway 90 near Dayton in Liberty County about 3 o'clock in the morning of November 4, 1950. His truck collided with a tank car which was a part of one of the appellant's freight trains, operating on a track which crosses Highway 90 at that point. The appellant's main line track between Houston and Beaumont is practically parallel to Highway 90 in the area west of Dayton. It is appellant's branch line from Dayton to Baytown which turns south from the main line at that point. There is a 'wye' leading from the main line to the branch line, consisting of an east leg and a west leg, which are about 600 to 700 feet apart. Shortly before the collision the freight train moved along the east leg of the wye going south and crossed the engine and several cars had crossed the highway, the train stopped and the tank car was stopped across the highway. Pettit was driving his large truck loaded with coconuts from New Orleans on his way to San Antonio. The truck with its load weighed about 40,000 pounds. He had left New Orleans about noon and got to Liberty about 10:30 p. m. where he parked on the side of the road and slept until about 2:30 a. m. He then awoke, went to a cafe and had pie and coffee and then headed west through Dayton. Dayton is about six miles west of Liberty. He drove through Dayton with his lights on dim and continued with his lights on dim until he reached a point where, according to his testimony, he considered his position to be outside the lighted section of the town and raised his lights. When he did so he was about 50 or 60 feet from the east leg of the wye crossing Highway 90 and for the first time saw the stopped tank car on the highway in front of him. According to his testimony he was going about 30 miles an hour, and he immediately put on his brakes and pulled to the left. The front end of his truck hit the south end of the tank car. The front end of his truck was jammed into and partially under the tank car, and Pettit was pinned in the wreckage of the cab of his truck. He received severe and painful injuries. He was fully conscious and remained in the cab while others labored for over an hour to extricate him from the truck. He suffered comminuted fractures of both legs and right ankle, and fractures of the knee cap of the left leg. He was in a hospital in Dayton until November 7, 1950, then was in the Methodist Hospital in Houston, where he has had several operations, including skin grafts and bone grafts. He now wears screws in his legs and specially built steel braces and specially built shoes.
The appellant railroad had installed automatic crossing signal lights and a bell on the crossing where the collision occurred. This was the type of crossing signal by which a warning is given to highway traffic by flashing lights and a ranging bell, and this one was set to operate and give such a warning when a train reached a point within 257 feet of the crossing. One large item of controversy in this lawsuit is whether this automatic crossing signal was functioning at the time of the collision. All members of the train crew testified that the signals were working, the lights were flashing and the bell ringing as Pettit's truck approached the crossing with the tank car stopped on the highway. The conductor, fireman, the engineer and two brakemen testified positively that they was the lights working before the accident. A State Highway Patrolman arrived at the scene immediately after the collision and he testified that the signals were working when he got there, and that he noticed the lights when he was about 300 feet from the crossing. A deputy sheriff likewise arrived shortly after the collision and he noticed the flasher lights working when he was 300 or 400 yards away from the crossing; another truck driver going west on Highway 90 testified that the lights were working; another truck driver going east testified the lights were working. Pettit, however, testified that the lights were not working; that he had been over this road many times before, knew that a warning light was there and expected the signal lights to warn him if a train was on the crossing. The evidence in regard to the functioning of the crossing signals will be discussed in more detail in the consideration of appellant's points in regard thereto.
The appellee filed its suit against the appellant, alleging that the railroad crossing was an extra-hazardous nighttime crossing and that the railroad had full knowledge of such fact; that for sometime prior to the collision appellant had been carrying on extensive switching operations in the vicinity of the crossing and knew, or with the exercise of ordinary care should have known, that the signal lights were not working; that he relied upon the signals working, and was in ignorance of the fact that they were not functioning at the time he approached the crossing; he alleged the presence of extraneous lights and the conditions prevailing to the east of the crossing and that the tank car which he struck was of a dark color, blending into the highway; he alleged that the appellant was negligent in failing to have the lights properly functioning, in failing to properly inspect the signals, and failing to illuminate the crossing, place flares and in failing to maintain a proper lookout for travelers on the highway. These acts were alleged to be the proximate cause of the collision and the consequent injuries. He alleged his injuries in detail.
The appellant railroad company answered by general denial, a general plea of contributory negligence on the part of the appellee, unavoidable accident, and a special plea that the appellee violated Section 86 of Article 6701d, Vernon's Revised Civil Statutes of Texas, in that he failed to stop his truck immediately prior to the collision, and further alleged that the violation of those sections of the statute was the sole cause 'and/or a proximate cause' of the accident made the basis of the suit.
The case was tried to a jury and the jury by its verdict found in answer to special issues submitted that (1) the conditions surrounding the crossing were such as to render the crossing more than ordinarily dangerous at nighttime at the time of the collision; (2) that the electrical warning devices failed to work just before and at the time of the collision; (3) that such failure was negligence and (4) was a proximate cause of the collision; (5) that the appellant prior to the collision knew or should have known by the exercise of ordinary care that the warning signal devices were not working; (6) that the appellant acquired such knowledge, or could have done so in the exercise of ordinary care, in such length of time that he could have place a flagman at the crossing to warn appellee of the train blocking the crossing; (7) that the failure of the appellant to place a flagman at the crossing to warn appellee of the train blocking the crossing was negligence and (8) was a proximate cause of the collision; (9) that the appellant acquired such knowledge that the warning signal devices were not working, or could have acquired such knowledge in the exercise of ordinary care, in such length of time that it could have placed flares at the crossing to warn appellee of the tank car blocking the crossing; (10) that such failure was negligence and (11) was not proximate cause of the collision; (12) that the appellant knew before it blocked the crossing that the electrical warning devices were not working; (13) that it was negligence for the appellant to block the crossing while such warning devices were not working and (14) that such negligence was a proximate cause of the collision. In answer to issue No. 15 the jury did not find that appellee Pettit, as he was approaching the crossing, was driving his truck at a speed in excess of 30 miles per hour. In answer to issue No. 17 the jury did not find that Pettit, as he approached the tank car on the east leg of the wye, was operating his truck at an excessive rate of speed under the facts and circumstances pertaining. In answer to issue No. 20 the jury did not find that Pettit failed to keep a proper lookout for the train. In answer to issue No. 22 the jury did not find that the failure of Pettit to stop his truck before attempting to cross the east leg of the wye was negligence. In answer to No. 24 the jury found that the collision was not the result of an unavoidable accident. In answer to the issue on the amount of damages, the jury found $50,000.
The appellant filed a motion for judgment non obstante veredicto, which was overruled by the court. Judgment was rendered for the appellee, and appellant filed its motion for a new trial and an amended motion for new trial. The amended motion was overruled and the appellant has duly perfected its appeal.
Appellant brings its appeal under six points.
The trial court erred in overruling defendant's motion for judgment non obstante veredicto.
The testimony was insufficient to warrant the submission of Special Issue No. 2 as to the failure of the signal lights to function.
There was no testimony warranting the jury's answer to Special Issue No. 3 that the failure of the signals to work (if the...
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