Texas & P. Ry. Co. v. Davis

• Decision Date: 18 December 1963
• Docket Number: No. 5588,5588
• Parties: TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Vera DAVIS et al., Appellee.
• Court: Texas Court of Appeals

Page 305

374 S.W.2d 305

TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Vera DAVIS et al., Appellee.

No. 5588.

Court of Civil Appeals of Texas, El Paso.

Dec. 18, 1963.

Rehearing Denied Jan. 15, 1964.

McDonald Shafer, Gilliland & Davis, Paul McCollum, Odessa, Hill D. Hudson, Pecos, for appellant.

John J. Watts, Odessa, for appellee.

CLAYTON, Justice.

This is a railroad crossing case in which appellant appeals from an adverse judgment granted appellees for damages and injuries arising from a collision between a tractor and tank semi-trailer being driven by one Carl Davis (who was killed) and a passenger train of the defendant company at a crossing in Odessa, Texas on February 5, 1959. Trial was to a jury on special issues, upon the answers to which the trial court founded its judgment.

Appellant based its appeal on five 'propositions', the first four of which will be considered together, and are as follows:

'FIRST PROPOSITION

'Where the Court required an affirmative answer to four (4) separate issues under Section 86 of Article 6701d of the Revised Statutes of Texas as a condition of the jury's answer to an inquiry as to whether deceased's negligence was a proximate cause of the collision in question. Such conditional submission of Special Issue No. 67 placed an undue burden upon the Defendant and constituted error.

'SECOND PROPOSITION

'The Court's refusal to submit to the jury proper requested material issues raised by both pleadings and evidence constituted error.

'THIRD PROPOSITION

'Overruling of Defendant's Motion of Judgment, after jury had found all essential facts to support complete defense was error.

'FOURTH PROPOSITION

'Failure to submit requested Special Issues constituting if answered, favorably to Defendant, a complete defense, constituted error.'

The fifth proposition sets out that where deceased approached from the south side of a crossing, the trial court's inquiry of the jury as to the condition of appellant's signal lights should have been limited to the view from the south side.

Article 6701d, Section 86, T.R.C.S., referred to in appellant's first proposition, in so far as it is relevent hereto, 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:

'(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train; * * *

'(c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard;

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

The deceased apparently did not stop.

In Appellant's first amended original answer, in Section V thereof, there were set out numerous acts of the deceased which were alleged to have been negligence on his part and which, individually and collectively, are alleged to be the proximate cause or causes of the collision in question, including that 'he failed to stop his motor vehicle within 50 feet but not closer than 15 feet to the nearest rail of said track at a time when the engine constituted an immediate hazard clearly visible to a person using ordinary care.' The appellant also submitted several requested special issues and instructions to the jury, among them the following:

'SPECIAL ISSUE NO SIXTEEN

'Do you find from a preponderance of the evidence that the train was plainly visible before plaintiff's vehicle reached a point fifteen feet from the nearest rail of the track upon which the train was approaching?

'In connection with your answer to this special issue you are instructed that the train was plainly visible, if it was, when a reasonably prudent person situated as was the plaintiff, should have seen it in the exercise of ordinary care for his own safety, under all the facts and circumstances as shown by the evidence.'

'SPECIAL ISSUE NO. SEVENTEEN

'Do you find from a preponderance of the evidence that the train was in hazardous proximity to the crossing in question before the plaintiff reached a point fifteen feet from the nearest rail of the track upon which the train was approaching?

'In connection with your answer to this special issue you are instructed that the defendant's train was in 'Hazardous proximity' to the crossing, if it was, when under all the surrounding facts and circumstances in evidence and speed and nearness of the train was such that a reasonably prudent person situated as was the plaintiff should have known that an attempt to proceed over the crossing ahead of the train was hazardous.'

The appellant then follows these requested special issues and instructions with its requested Special Issue No. Seventeen A, which inquires of the jury whether, from a preponderance of the evidence, the failure of the deceased to stop his vehicle within fifty feet, but not less than fifteen feet, from the nearest rail of the track upon which the train was approaching was the proximate cause of the collision. These requested special issues and instructions were in the language of special issues suggested by the now Chief Justice Calvert of the Supreme Court in his article on special issues under the statute herein involved in 34 Texas Law Review 971.

The court, in Special Issues Nos. 61 and 62, submitted the requested Special Issues Nos. Sixteen and Seventeen in the exact language requested, and the jury answered them in the affirmative. But the court then followed these special issues with Special Issues Nos. 65 and 66, reading as follows:

'SPECIAL ISSUE NO. 65

'Do you find from a preponderance of the evidence that the train emitted an audible signal within approximately fifteen hundred feet before Carl Davis reached a point fifteen feet from the nearest rail of the track upon which the train was approaching?

'SPECIAL ISSUE NO. 66

'Do you find from a preponderance of the evidence that a clearly visible electric or mechanical signal device gave warning of the immediate approach of the defendant's train immediately prior to the collision in question?

The trial court then gave the following instruction and special issue:

'If you have answered Special Issues No. 61, 62 65 and 66 'Yes', and only in that event, then answer Special Issue No. 67.

'SPECIAL ISSUE NO. 67

'Do you find from a preponderance of the evidence that the failure of Carl Davis to stop his vehicle within fifty feet, but not less than fifteen feet from the nearest rail of the track upon which the train was approaching, was a proximate cause of the collision?'

The jury answered Special Issues Nos. 65 and 66 in the negative, and thus was prohibited, under the court's instruction, from answering Special Issue No. 67. Appellant timely objected and excepted to this grouping of special issues in the court's charge and the court's instruction to the jury making the answer of Special Issue No. 67 conditional upon an affirmative answer to Special Issues Nos. 61, 62, 65 and 66, as an improper grouping of issues relating to two separate and distinct statutory theories of defense and as imposing upon the appellant a far greater burden in establishing its defense predicated upon its pleadings and its requested special issues, as raised by the evidence, than required by either statutory or case law in Texas. Our view of the statute (Art. 6701d, Sec. 86), is that it intends to set out several distinct and separate conditions under each of which the duty arises for the driver of a motor vehicle approaching a railroad grade crossing to stop within the prescribed distance from the nearest rail. One of these conditions, subsection (d), is when an approaching train is plainly visible and is in hazardous proximity to such crossing. The existence of this condition was submitted to the jury in Special Issues Nos. 61 and 62. Another, unrelated, condition requiring the stop, i. e. subsection (c), is when a railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard. The existence of this condition was probably intended to the submitted in Special Issue No. 65. A third, unrelated, condition requiring the stop, i. e. subsection (a), is when a clearly visible electric or mechanical signal device gives warning of the immediate approach of a train. The existence of this condition is submitted in Special Issue No. 66. The jury answered that neither or the conditions referred to in Special Issues Nos. 65 and 66 existed under the evidence. In order to establish the existence of any one of these three conditions it is not necessary also to establish the existence of either of the other two. Appellees, in their second counter-point in reply to appellant's first, second, third and fourth propositions, makes the assertion that 'all statutory conditions must exist under Article 6701-D, Section 86, Revised Civil Statutes of Texas, before a duty to stop exists.' This statement is unquestionably true when it is applied to subsection (d) of Section 86, Article 6701d, to which it should refer. In support of their assertion appellee cite from the Supreme Court case of Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, in which the then Justice Calvert, writing the majority opinion, sets out the following:

'Further analyzing the statute, it appears obvious that the duties imposed on the motorist are not absolute but are conditional. Neither duty comes into existence unless and until these three conditions exist: (1) A train must be 'approaching' the crossing; (2) the approaching train must be 'plainly...