Texas & N. O. R. Co. v. Krasoff

• Decision Date: 28 November 1945
• Docket Number: No. A-561.,A-561.
• Citation: 191 S.W.2d 1
• Parties: TEXAS & N. O. R. CO. v. KRASOFF et al.
• Court: Texas Supreme Court

Page 1

191 S.W.2d 1

TEXAS & N. O. R. CO. v. KRASOFF et al.

No. A-561.

Supreme Court of Texas.

November 28, 1945.

Rehearing Denied January 16, 1946.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Mrs. Julia Krasoff, individually and as next friend of her two minor sons, Sylvan and Kenneth Krasoff, against the Texas & New Orleans Railroad Company to recover damages for the death of her husband when truck in which he was riding was struck by defendant's train. Judgment for plaintiffs was reversed by the Court of Civil Appeals, 186 S.W.2d 289, and the cause remanded, and both plaintiffs and defendant bring error.

Judgment of the Court of Civil Appeals reversed and judgment of the district court affirmed.

Baker, Botts, Andrews & Wharton, Tom M. Davis, and Virginia Noel, all of Houston, for petitioner Texas & N. O. R. Co.

Earl Cox, of Houston, for respondent Krasoff et al.

BREWSTER, Justice.

Sam Krasoff was killed on the morning of March 3, 1943, when a truck in which he was riding was struck by a passenger train operated by Texas and New Orleans Railroad Company, at a public crossing in the town of Stafford, in Ft. Bend County.

This is a suit for damages for his death brought by his widow, Mrs. Julia Krasoff, individually and as next friend of their minor children, Sylvan and Kenneth Krasoff. A trial court judgment for the Krasoffs was reversed by the court of civil appeals and the cause remanded. 186 S.W.2d 289.

Both sides filed applications for writ of error, which were granted, so we shall refer to the Krasoffs as "plaintiffs" and to the Texas and New Orleans Railroad Company as "defendant."

Besides allegations of negligence on the part of defendant in maintenance of the crossing and in its operation of the train that struck Krasoff, plaintiffs alleged that the train operatives could have avoided the collision, under the doctrine of discovered peril.

Defendant pleaded a general denial, contributory negligence of Krasoff in several particulars, and unavoidable accident.

The jury found that defendant was negligent in not keeping an automatic warning signal at the crossing and that the train operator failed to ring the bell on the locomotive as it approached the crossing and to keep the bell ringing until the locomotive had either traversed the crossing or stopped; and that each of these acts of negligence was a proximate cause of the collision. It also found that defendant's engineer "discovered and realized" the perilous position of Krasoff at the crossing in time that, by the exercise of ordinary care, with the means at hand and in safety to himself and others on the train, he could have avoided injury to Krasoff; that he was negligent, under those circumstances, in failing to avoid injury to Krasoff; and that such failure was a proximate cause of Krasoff's death.

After finding that the collision was not the result of an unavoidable accident, the jury further found that Krasoff failed to bring his truck to a stop free and clear of the track before attempting to cross it or to keep a proper lookout for trains which might be approaching the crossing from the east; and that his failure in each respect was negligence, which was a proximate cause of the collision.

Defendant timely filed a motion for judgment non obstante veredicto, insisting that "the undisputed and uncontradicted evidence in this case is that the engineer of the defendant's train * * * did not discover the perilous position of deceased and realize his peril within time, through the exercise of reasonable care in the use of the means at his command consistent with his own safety, that of his train and the passengers thereon, to have avoided either the collision or injury or death to the deceased." As the jury had found Krasoff guilty of contributory negligence, the issue of discovered peril thus became the sole basis of liability. The trial court decided that question adversely to defendant, overruled its motion non obstante and granted plaintiffs' motion for judgment on the jury's verdict.

The court of civil appeals held that the evidence was sufficient to support plaintiffs' doctrine of discovered peril but that two of the special issues submitting it were fatally defective in form.

The sole point of error urged by the defendant is that the court of civil appeals "erred in holding that the evidence in this case raised the issue of discovered peril."

The doctrine of discovered peril has been clearly defined by the decisions of this court, one of the most recent being Texas & New Orleans Railroad Co. v. Grace, Tex.Sup., 188 S.W.2d 378. As applicable to this case, it was accurately stated in defendant's motion non obstante veredicto, above quoted, namely, that the engineer must have discovered and realized the perilous position of Krasoff in sufficient time before the collision that the engineer, "through the exercise of reasonable care in the use of the means at his command, consistent with his own safety, that of his train and the passengers thereon," could have avoided injury or death to Krasoff.

Use of means at his command by a train operative is not necessarily restricted to stopping or slowing the train to avoid striking the party in peril. It may include as well the giving of an alarm by bell or whistle so that the one in peril may have an opportunity to extricate himself. This principle is based on the fact that the injured party's peril may be discovered when it is too late to save him by stopping or slowing the train but the tragedy may be averted by giving a warning. It is illustrated in Houston E. & W. T. Ry. Co. v. Sherman, Tex.Com.App., 42 S.W.2d 241, 245, wherein the deceased, after entering the defendant's right of way, stopped his truck, then started it and was struck and killed. The engineer testified that when he first noticed the deceased the latter was 264 feet from the engine and 20 or 25 feet from the track, traveling about 5 or 6 miles per hour; that he (the engineer) then made the usual efforts to slow or stop the train before sounding the whistle. The court said this testimony presented a jury issue as to whether the engineer acted with ordinary care because "We think an ordinarily prudent person would have realized the futility of attempting to stop the train before reaching the crossing and would have instantly sounded the whistle to alarm deceased and cause him to stop and thus have avoided the accident." And in another case this court said: "The most complete diligence to stop an engine while under some conditions constituting all that could be expected might under others be less than the full performance of the duty to exercise the care of an ordinarily prudent person. In some situations warnings and other expedients are more effectual than any effort to stop would be." Missouri, K. & T. R. Co. of Texas v. Reynolds, 103 Tex. 31, 122 S. W. 531, 532. Other authorities to the same effect are Trochta et al. v. Missouri, K. & T. R. Co. of Texas, Tex.Com.App., 218 S.W. 1038; Sanchez v. San Antonio & A. P. R. Co., 88 Tex. 117, 30 S.W. 431; and Houston & T. C. R. Co. v. Stevenson, Tex.Com.App., 29 S.W.2d 995.

The testimony of defendant's engineer indisputably established the fact that Krasoff was in a position of peril as he slowly approached the defendant's tracks at the point of collision and that the fact of that perilous position was realized by the engineer before the collision occurred and while Krasoff was at least 30 feet from the tracks. The only issue relates to whether he then exercised ordinary care to use all means at his command, consistent with his own safety and that of the train and its passengers, to avoid the collision. In discussing that issue we shall assume that the train could not have been slowed or stopped in time to save Krasoff.

On direct examination by defendant, the engineer testified:

"Q. Now then, did you ever see this truck that you ultimately had the collision with? A. I saw him as he approached the crossing about—

"Q. About how far would you say the front end of your engine was away from the crossing when you first saw the truck? A. About 400 feet, 400 to 500 feet, something like that.

"Q. About how far was the truck from the track at the time you first saw it? A. About 40 or 50 feet.

"Q. Now, Mr. Jenkins, what if anything, did you do, when you first saw the truck? A. I blew the whistle again, as a further warning.

"Q. Did you think the man was going to cross then? A. No, sir.

"Q. Why didn't you? A. Because he came to a momentary stop, and there was no question in my mind but what he was going to stop.

"Q. Then what happened, after he came to a momentary stop? A. He started up again and started ahead.

"Q. What, if anything, did you do? A. I immediately shut off the throttles, put on the brakes and opened the sanders.

* * * * *

"Q. When was the first time that you realized he was not going to stop? A. When I saw him start ahead.

"Q. And when you first realized he was not going to stop, what did you do? A. I immediately applied the brakes in emergency, shut off the throttle and opened the sanders, and started to blow the whistle again as quickly as I could."

On cross examination the engineer's testimony was:

"Q. Now, I believe you stated you didn't see this truck until you were four or five hundred feet from the crossing, is that right? A. Yes, sir.

"Q. That's your best judgment, four or five hundred feet? A. Yes, sir.

"Q. When you saw the truck, how far was he from the crossing? A. He was about 40 or 50 feet from the crossing.

"Q. On your right hand side? A. Yes, sir.

* * * * *

"Q. Then you say he stopped before he got on the track? A. He momentarily stopped, yes sir.

"Q. When you say momentarily, a man either stops or doesn't stop; momentarily doesn't help me. Did he ever actually come to a stop before he got on the track? A. Well, I couldn't say that he came to a complete stop; just actually a dead stop, but he made a...