Texas & N. O. Ry. Co. v. Hart

• Decision Date: 21 September 1961
• Docket Number: No. 6395,6395
• Citation: 350 S.W.2d 227
• Parties: TEXAS AND NEW ORLEANS RAILWAY COMPANY, Appellant, v. Melba HART et al., Appellees.
• Court: Texas Court of Appeals

Page 227

350 S.W.2d 227

TEXAS AND NEW ORLEANS RAILWAY COMPANY, Appellant, v. Melba HART et al., Appellees.

No. 6395.

Court of Civil Appeals of Texas, Beaumont.

Sept. 21, 1961.

Judgment Made Final and Rehearing Denied Oct. 11, 1961.

Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellant.

Barber & Seale, Jasper, for appellees.

STEPHENSON, Justice.

This is a suit for personal injuries brought by appellees Mary Evelyn McCormick and Melba Joy Hart to recover damages from the Texas and New Orleans Railway Company, arising out of an automobile-train collision which occurred at a grade crossing on the Spencer Highway, near LaPorte, Harris County, Texas. Mary McCormick, the driver of the automobile, was nineteen and Melba Hart was seventeen years of age at the time of the collision.

The case was submitted to the jury upon special issues. The jury found: the failure of the railroad company to have a flagman was negligence and a proximate cause; there was not a blinker light operating, which was negligence and a proximate cause; the railroad failed to give adequate warning of the approaching train, which was negligence and a proximate cause; appellee Mary McCormick failed to keep a proper lookout and violated Art. 6701d, sec. 86, Vernon's Ann. Revised Civil Statutes, each of which act of negligence was a proximate cause; the fireman on the engine was negligent after discovering the perilous position of appellees, which was a proximate cause. The jury found that appellant railroad company did not fail to: ring the bell as they approached the crossing; to blow the whistle; keep proper control; and did not operate at an excessive rate of speed. Judgment was rendered by the trial court for Mary McCormick $5,000, and for Melba Hart $15,000.

Appellant first complains of the trial court's method of submitting discovered peril. It is contended 'extrication' was not included in the submission. Special Issue No. 23 asked of the jury whether or not the fireman discovered the perilous position. The jury was instructed, in connection with this issue as follows:

'You are instructed that by the term 'discovered that they were in a perilous position', as used herein, is meant that whenever it reasonably appears to a person in the fireman's position from the facts and circumstances within his knowledge that someone is pursuing a perilous course and probably will pursue it to the end, then in such an event, such a person is said to have knowledge of the peril of the other.'

The question here is, does the phrase 'that someone is pursuing a perilous course and probably will pursue it to the end' mean the fireman realized they could not and would not free themselves from the peril? Even though the wording used by the trial court is not as clear as it could have been, we hold this is a fair submission of 'extrication' in connection with discovered peril. This is almost the identical wording used by the Commission of Appeals in Galveston, H. & S. A. Ry. Co. v. Wagner, 298 S.W. 552, 553, as follows:

'In order for a person to be in peril, it is not necessary that bodily injury will certainly be suffered by him. He is in peril whenever he is pursuing a course which probably will terminate in serious bodily injury to him. Whenever it reasonably appears to a second person, from facts and circumstances within his knowledge, that a person is pursuing such a course and probably will pursue it to the end, then, in such event, the second person is held to have knowledge of the peril of the other.'

In addition, under the circumstances existing in this case, it was not necessary to include 'extrication' in the submission to the jury. In his testimony the fireman admitted that he realized the car was in a position of peril and that they could not free or extricate themselves from their position of peril. In view of this admission, it was not necessary to submit Special Issue No. 23 asking whether the fireman discovered the perilous position. This became an undisputed fact, and the form of its submission became immaterial. It could not hurt the appellant. The Supreme Court has written clearly on this point in Texas & N. O. Ry. Co. v. Krasoff, 144 Tex. 436, 191 S.W.2d 1, 6, as follows:

'With defendant's engineer testifying that he recognized Krasoff was in a perilous position when the latter was 30 or 40 feet from the tracks and when the engine was three or four hundred feet from the point of collision, we do not believe the jury could have thought they were confined by the words 'at the railroad crossing in question immediately prior to the collision' to the very last instant before the collision. Moreover, in view of the engineer's testimony, we think the trial court could have assumed that Krasoff was in a perilous position not only at the point of collision but for at least 30 feet away from it, and that, therefore, it was unnecessary to submit the question of existence of peril in any form.'

Appellant next contends that there was no evidence to sustain the jury finding that the fireman discovered the perilous position of appellees in time to have avoided the collision. The quantum of proof required of the appellees on the elements of discovered peril, in order to entitle them to have the issues submitted to the jury, was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. In determining whether appellees discharged their burden we must view and interpret the evidence in the record in its most favorable light to the appellees, disregarding all evidence and inference therefrom favorable to the appellant. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563. We also know the rule to be, as followed in the Ford case:

'A jury will not be bound by the statement of defendant as to when he discovered the danger of plaintiff and as to the efforts made to avoid the injury.'

It is impossible to know in a discovered peril case, the specific point a jury had in mind when it determined that a defendant could have avoided a collision by the use of all of the means at his command. This is one of the vices in the method of submitting discovered peril which has the approval of our courts. Even though the laws of this state require specific findings of primary negligence and contributory negligence, the same is not true of discovered peril. It is conceivable that in some instances, each of the twelve jurors may have had a different conception of the means at his command by which a defendant could have avoided a collision. The jury is not required to agree upon the specific means. This could be done readily by following the issue as to the discovery of the perilous condition, with various issues asking if the collision could have been avoided by doing a particular act according to the plaintiffs' theory of the case as it has been plead and proved. However, there is no such provision in the law of this state at this time, and the appellate court must follow the rules as outlined above in the Ford case, supra, in considering the record on appeal.

There were several estimates as to the speed of the train varying from 5 to 12 miles per hour. There were also several estimates as to the speed of the automobile varying from 35 to 45 miles per hour. The fireman testified he first discovered the automobile when he was 90 feet from the highway, placing the front of the engine 50 feet from the highway. An examination of Exhibit D-6 reveals that at a point 90 feet from the highway a person's vision is not obstructed in any way by the presence of the depot which was located 99.6 feet from the highway. The jury may have rejected the fireman's estimate of the distance of the car from the crossing and accepted his estimate of the speed of the automobile, and could have concluded the car was 200 feet or 300 feet from the crossing at the time of discovery. Using the estimate as to speed of the automobile given by the fireman of 35 miles per hour; if the car was 200 feet from the crossing at the time of discovery, the automobile and train would arrive at the crossing at the same time, if the train was traveling 12 miles per hour. Using the same speed of the automobile, 35 miles per hour, if the car was 300 feet from the crossing at the time of discovery, the automobile and the train would arrive at the crossing at the same time, if the train was traveling 8 miles per hour. In the first instance the time from discovery to impact would be 3.9 seconds and in the second instance 5.8 seconds. In much of their argument appellant assumes the only way the collision could be avoided would be for the train to stop. In the Ford case, supra, it is stated:

'The duty rested on the train operatives to slacken the speed of the train even if it could not be stopped before reaching the crossing.'

We are dealing in split second timing in examining the evidence. At 35 miles per hour the appellees' automobile would travel about 12.7 feet in 1/4th of a second. The evidence shows the automobile was struck broadside at about the front door. This means, in about 1/4th of a second more the automobile would have cleared the track in safety. It is inconceivable to this court that neither the fireman nor the engineer knew whether there was an emergency brake valve on the fireman's side. The engineer testified: 'I'm not sure, but I am positive there was one.' The jury may have concluded there was an emergency brake value on the side by the fireman, and that by the use of that means at his command he could have avoided the collision. Then again, the jury may have concluded the fireman by waiting 1 or 2 seconds, as he testified, or even longer, if he had 5.8 seconds traveling time between the time of discovery and the collision, even allowing for normal reaction time, delayed too long in warning the engineer, and that a prompt application of the emergency brakes might have...