Texas & New Orleans Ry. Co. v. Hart

Decision Date11 April 1962
Docket NumberNo. A-8704,A-8704
Citation356 S.W.2d 901,163 Tex. 450
PartiesTEXAS & NEW ORLEANS RY. CO., Petitioner, v. Melba HART et al., Respondents.
CourtTexas Supreme Court

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

Barber & Seale, Jasper, for respondents.

GREENHILL, Justice.

Melba Hart and Mary Evelyn McCormick were injured when their car was struck by one of the defendant railway company's engines near La Porte, Texas. Suit was brought on their behalf. The jury found the railway was negligent in failing to have in operation blinker-light warning devices and in failing to provide adequate warning at the crossing. It found the driver of the car, Mary McCormick, was also negligent in failing to keep a proper lookout and in other respects. The jury answered issues of discovered peril against the railroad: that its fireman discovered and realized the perilous position of the girls in time, and negligently failed to exercise the means at hand to avoid the collision. Judgment was entered against the railway: $15,000 for Melba Hart and $5,000 for Mary McCormick. That judgment was affirmed by the Beaumont Court of Civil Appeals solely on the basis of the discovered peril issues. 350 S.W.2d 227. It required a remittitur which reduced the amount of the recovery to $5,000 for Melba Hart and $2,000 for Mary McCormick.

Because the question is whether there is 'some evidence' or 'no evidence' to support the jury's answers to the discovered peril issues, the facts must be set out.

The driver of the car, Mary McCormick, age 19, decided to drive to Alvin to see a boy friend. She invited Melba Hart, age 17, who lived at Kountze, Texas, to ride with her. Melba did not share the expense and had no control of the car. The girls left Kountze around 9:15 a. m. on Sunday of the Labor Day weekend, 1958. They drove to Baytown, through the tunnel under the Houston Ship Channel, and stopped at a stop sign before entering Spencer Highway which runs east and west from La Porte, Texas, to the vicinity of Houston. They turned right onto Spencer Highway, in a westerly direction, heading toward Houston and Alvin and away from La Porte. The railroad crossing was about a half mile toward Houston from the stop sign. The car was driven at approximately 35 to 40 miles per hour when it got to the tracks and was struck. The time of the accident was around noon on a clear August day.

The terrain at and all around the crossing is flat. The railway track crosses the highway at right angles, in a north-south direction. There is a depot on the northeast side of the highway-railway intersection. At some time before the collision, it formed an obstruction to the vision of the driver of the car and the fireman of the train. It was located 99.6 feet north of the highway (from which direction the train came) and 21 feet east of the main railroad track. There was a spur or house track on the east side of the depot. The main track was on the west side of the depot.

The train in question consisted of a diesel engine and about 40 freight cars, 36 loaded with gravel and 4 empties. These is a dispute as to how many freight cars were on the spur track (which would also obstruct the vision of the driver of the car from the train, and the vision of the fireman of the car). The engineer testified that he had spotted one car of automobiles on the spur track just opposite the platform of the depot. Having spotted the car, he backed to a switch, and was just getting underway again shortly before the collision.

An agent of the railway testified that at the intersection, there were on both sides of the track large railroad warning standards. At the top of the standard was a crossbuck; below the crossbuck were automatic flashing lights which were activated by a train on the track in the vicinity of the crossing. The standard on the east side of the track (the side from which the girls approached) was also equipped with an automatic bell. The standard on the other (western) side, he testified, had the flashing lights but no bell. The County had railway crossing signs on both sides of the crossing.

Melba Hart said that as she and Mary McCormick approached the crossing they were talking; that she first saw the train when it came out from behind the depot (which is 99.6 feet from the highway). On cross examination, she testified that she didn't see the train until the automobile was crossing the track. She said she was looking straight ahead 'and then I just happened to glance over my right shoulder and I saw the train just before it hit us.' The engine struck the car on the car's right side, the side on which Melba was sitting.

She said there were no blinking lights, no bells ringing, no whistle blowing. She did not see any railroad crossing sign. On cross examination she admitted that 'when the train hit me, I forgot everything I did know.' As to the warning signs, she said, 'I don't remember none of this stuff.' She could not remember how fast the train was moving; she had no earthly idea.

Mary McCormick, the driver, also testified that there were no blinking lights at the crossing. She heard no bells or whistle. She was 'normally looking down the highway,' but she did not see the train until about a second before her car was hit. She remembered the county railroad warning sign. She did not remember whether there were any railroad standards equipped with warning lights. She did not know whether the sign and the device were there or not. She did not see any blinking lights; there were none working to her knowledge.

She did remember the depot, and she did remember some box cars which were not moving (apparently on the spur track). She had no idea as to the speed of the train. She had no idea how far her car was from the tracks when she first saw the depot. She just saw the train when the front of her car was on the track.

Mrs. Earlene Hart, Melba's mother, happened also to have driven across this highway and crossing that weekend. She testified that when she crossed there on Friday, there were no signal lights at the crossing. When she drove back across it on Monday, there was some sort of bell-like structure hanging over the highway. She could not remember whether it was anchored by a post on the left or right of the highway, or how it got put up over the Labor Day weekend. There was no evidence that there was a train in the vicinity to have activated the warning signals, assuming they were there. When she drove back on Monday, she had not been informed, and did not know, that her daughter had been involved in an accident at the crossing.

Roland Lee Gadman was driving on the Spencer Highway on the day of the collision. He was headed in the opposite direction from the girls. He was an eye witness. As he approached the crossing from the west, headed toward La Porte, he stopped because he saw the flashing warning lights on the railroad sign. The lights were in operation below the usual crossbuck sign. He was positive that there were similar devices on the opposite side of the track, which were still there; and he would say that they, too, were in operation. But he did not know, positively, that they were in operation since they were on the opposite side of the crossing. The traffic was heavy this weekend.

He first noticed the train when it was 75 to 100 feet from the highway-when it was just about even with the depot. The depot would be an obstruction to drivers approaching from the east, as plaintiffs were. He also observed one or two box cars on the spur track. He said the train was just starting, and estimated its speed at from 5 to 8 miles per hour. The engineer was blowing his whistle continuously, for a long time. Gadman heard it above his car radio. Bells were ringing.

He observed the plaintiff's car when it was some 20 to 25 feet from the tracks. At this point the engine was entering the left hand side of the highway. The girls' car did not swerve: 'she continued just like she didn't see it' (the engine). After the collision, he got out of his car and walked down to the girls' car, some 50 feet down the track.

G. H. Montemat, the fireman, testified that he sat on the left side of the engine, the side toward the approach of the girls' car. He and the engineer had spotted a car on the spur track and backed to a switch to continue their journey from Houston to Texas City. He saw the plaintiffs' car 'just as we came out from behind the depot'; 'just as we passed the depot.' On cross examination he testified that he first saw the plaintiffs' car when it was first within his sight range, when the automobile was approximately 100 feet from the crossing. We think, taken in context, he meant that he first saw the automobile when it was within his sight range after he passed the depot.

When the engine backed to the switch to the north of the depot, it came to a complete stop. His estimate of the distance from the switch to the highway was from 300 to 100 feet. With its 40 loaded and empty cars, it had attained a speed, he estimated, of from 10 to 12 miles per hour. On cross examination, he admitted that the train could have been going as slowly as 5 to 8 m. p. h. He was just estimating. The engine itself is about 45 feet long, and his position was about 40 feet back from the front of the engine. He estimated that he was approximately 90 to 100 feet from the crossing when he first saw the approaching car which would place the front of the train some 50 to 60 feet from the highway. He was examined at length on what he did upon seeing the car then some 100 feet from the crossing. He said 'for a second or so, I looked; and then I holloed to the engineer to shoot it' (apply the emergency brake). On direct and cross examination, this 'second or so' was also expressed as 'a second or an instant,' 'immediately,' 'right away,' 'a second or two.' He hollered 'loud,' and the engineer applied the emergency without delay, ...

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