Texas & New Orleans Railroad Co. v. Day

• Decision Date: 08 October 1958
• Docket Number: No. A-6672,A-6672
• Parties: TEXAS & NEW ORLEANS RAILROAD CO., Petitioner, v. Earl DAY, Respondent.
• Court: Texas Supreme Court

Page 402

316 S.W.2d 402

159 Tex. 101

TEXAS & NEW ORLEANS RAILROAD CO., Petitioner, v. Earl DAY, Respondent.

No. A-6672.

Supreme Court of Texas.

Oct. 8, 1958.

Baker, Botts, Andrews & Shepherd, Houston, Dawson & Dawson, Corsicana, Frank A. Woods, Franklin, for petitioner.

J. C. Jacobs, Robert C. Jackson, Jr., Corsicana, for respondent.

CALVERT, Justice.

Respondent, Day, sued petitioner, Texas & New Orleans Railroad Company, for damages to his truck-trailer resulting from a collision with petitioner's train at a street crossing in the City of Corsicana. A trial court judgment for respondent was reversed by the Court of Civil Appeals and the cause was remanded fro retrial. 308 S.W.2d 245. Reversal was ordered because of error in the trial court's charge.

Both parties applied for writ of error and both applications were granted. It is the contention of respondent that the trial court's charge was not erroneous and that the Court of Civil Appeals erred in reversing the trial court's judgment. It is the contention of petitioner that it was entitled to an instructed verdict and that the Court of Civil Appeals should, therefore, have rendered judgment in its favor. We overrule both contentions and affirm the judgment of the Court of Civil Appeals.

As shown by a diagram in the opinion of the Court of Civil Appeals (308 S.W.2d 246) Collin Avenue, running east and west through the City of Corsicana, at one point crosses a series of eight tracks owned by petitioner. The total distance between the outermost tracks is 185 feet. The collision took place on the main line track, the fourth track from the easternmost track.

The driver of respondent's truck left a cafe on Highway 75, east of the railway tracks, about one o'clock in the morning, turned into Collin Avenue and drove his truck slowly in a westerly direction toward the tracks. He first saw petitioner's train, traveling south, after he had passed over the first three tracks and as he neared the main line track on which the train was approaching from the north. On discovering the approach of the train, he applied his brakes and brought the truck to a halt on the main line track where the collision occurred.

In answer to special issues the jury found that the train was being operated at a speed of 25 miles per hour, that that was a negligent rate of speed and was a proximate cause of the collision; that the operators of the train failed to keep a proper lookout for others in the lawful use of Collin Avenue, which was a proximate cause of the collision; that in stopping on the main line track the driver of the truck was acting in an emergency; that the truck driver did not fail to keep a proper lookout for approaching trains; that while the truck was stopped on the main line track at a time when it was impossible to stop the train and avoid a collision, that act was not negligent; that the collision was not the result of an unavoidable accident.

One of petitioner's defenses to the suit was based on an alleged violation by the truck driver of the duties imposed by Sec. 86(d) of Article 6701d, Vernon's Annotated Texas Statutes, which reads as follows:

'Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:

'(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.'

The defense was submitted in a series of special issues, all related to Special Issue No. 21, which reads as follows:

'Which do you find from a preponderance of the evidence:

'(a) That the plaintiff's employee stopped his truck within fifty feet but not less than fifteen feet from the nearest rail of such railroad track, or

'(b) That he failed so to stop his truck?

'Answer: 'He did so stop', or 'He failed so to stop."

The jury answered: 'He did so stop.'

The principal grounds on which petitioner asserts that it was entitled to an instructed verdict are that the evidence establishes conclusively and as a matter of law that the operator of the truck failed to keep a proper lookout and that he violated his statutory duty to stop his truck within the area prescribed by Article 6701d, Sec. 86(d), supra, before going upon the track on which the train was approaching.

Whether the truck operator was under a statutory duty to stop within 50 feet but not less than 15 feet of the nearest rail of the main line track on which the train was approaching must be tested by the rules laid down in our interpretation of the statute in Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin, Tex., 291 S.W.2d 931. We there held that a motorist approaching a railroad crossing is under no statutory duty to stop in the prescribed area unless a train is approaching on the track, is 'plainly visible', and is 'in hazardous proximity.' And we said that a train is not 'plainly visible' within the meaning of the statute unless 'a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it.' 291 S.W.2d 936. In other words, our opinion and holding in the McFerrin case make clear (and the holding is made more pointed by the concurring opinion) that there is no statutory duty on a motorist approaching a crossing to stop unless a train is approaching on the track and is seen or should be seen by one similarly situated who is keeping a proper lookout for his own safety.

In this case there is evidence that the respondent's truck driver did not see the train at a time when by the exercise of ordinary care he could have stopped in the statutory area. Before we can hold, therefore, that, as a matter of law, the driver violated his statutory duty to stop in the prescribed area, we must be able to say that the evidence establishes, as a matter of law, that he failed to keep such a lookout for his own safety as a person of ordinary prudence would have kept under the same or similar circumstances.

As heretofore noted, the jury found that respondent's driver did not fail to keep a proper lookout, and it is our duty to uphold that finding if it is supported by evidence of probative force and reasonable inferences therefrom, considering only the evidence favorable to respondent and disregarding the evidence favorable to petitioner. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114.

The operator of the truck testified that as he turned into Collin Avenue from Highway 75 and approached the series of eight tracks he heard the whistling of a train which continued at intervals until the collision occurred, but that the whistling was coming from a switch engine to his left which appeared to be switching back and forth; that he heard no kind of horn, whistling or bells to his right; that as he approached the tracks he saw a freight train standing to his left, or to the south, with a caboose, 'lighted up,' about 15 or 20 feet south of the south edge of the street; that he stopped at a distance of about 25 feet from the first of the series of tracks, some 138 feet from the main line track, for 15 to 20 seconds, and looked up and down the track in both directions before proceeding further but did not see a train approaching from his right, because 'that train hadn't even come around the curve'; that he started moving forward across the tracks at a rate of speed of 7 to 10 miles per hour, meanwhile hearing the whistling of the switch engine on his left and the sound of its diesel engine running, and meanwhile also watching the caboose on the freight train to his left because 'they have a habit of going back and forth across the street a lot' and he 'didn't know whether it was going to back up or go forward,' and he was 'watching it to keep it from backing over' him; that the first track he reached was a switching track, the second was a dead track, and the fourth was the main line track, but that he did not know any of those facts at the time; that from the time he started moving forward he did not again look to his right until he was even with the standing freight train and caboose; that he then looked to his right, saw the approaching train at a distance of approximately 550 to 650 feet and heard its whistle blowing, but did not know and could not tell which track it was on; that he put on his brakes and stopped his truck as quickly as he could, and then attempted to throw in the reverse gear and back off the track but was unable to do so before the collision.

Before we are justified in holding as a matter of law that the truck operator failed to keep a proper lookout his conduct in that respect must have been 'so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person' would have acted as he acted, under the same or similar circumstances. Gulf, Colorado & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227, 228; Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585, 587; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 621, 23 A.L.R2d 1114.

Petitioner does not question but that there is evidence to support a...