Texas & P. Ry. Co. v. Midkiff

• Decision Date: 11 February 1955
• Docket Number: No. 3148,3148
• Citation: 275 S.W.2d 841
• Parties: The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Jessie MIDKIFF, a widow, et al., Appellees.
• Court: Texas Court of Appeals

Page 841

275 S.W.2d 841

The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Jessie MIDKIFF, a widow, et al., Appellees.

No. 3148.

Court of Civil Appeals of Texas, Eastland.

Feb. 11, 1955.

Rehearing Denied March 4, 1955.

Conner & Conner, Eastland, Wagstaff, Harwell, Alvis & Pope, Abilene, for appellant.

Scarborough, Yates, Scarborough & Black, Abilene, J. Frank Sparks, Eastland, for appellees.

LONG, Justice.

On March 30, 1953, A. R. Midkiff was killed in a collision between a truck which he was driving and a Texas and Pacific Railway Company passenger train at the Lake Burnie crossing in the city limits of Cisco, Texas. Jessie Midkiff, his surviving wife, filed this suit against The Texas and Pacific Railway Company to recover damages for his death. Thereafter, Zurich General Accident Liability Insurance Company, Ltd., Inc., the compensation carrier, intervened as a party plaintiff by reason of its having paid the death claim arising out of the collision. Based upon a jury verdict on special issues, judgment was rendered against defendant for $31,440 with interest and costs, the judgment providing that the intervenor be paid $7,960.54 and costs out of said judgment as reimbursement for compensation paid. The railway company has appealed.

By various points, appellant urges that the deceased, A. R. Midkiff, was guilty of contributory negligence as a matter of law and, therefore, appellee cannot recover. In passing upon this question we must consider the evidence in its most favorable light to appellee from the position of the deceased just before and at the time of the collision, rejecting all evidence favorable to appellant. Kirksey v. Southern Traction Company, 110 Tex. 190, 217 S.W. 139. When the evidence is so considered, we cannot hold that contributory negligence on the part of the deceased is shown as a matter of law. The law presumes that Midkiff was doing whatever was reasonably ncessary for his own safety and appellant must prove conclusively that he was not so doing in order to relieve itself of the consequences of its negligent acts. Gulf, C. & S. F. R. Co. v. Bouchillon, Tex.Civ.App., 186 S.W.2d 1006. Contributory negligence cannot be presumed. It is usually a question of fact for the jury.

The crossing where the collission occurred is situated within the city limits of Cisco, Texas, and is a fairly well used crossing. The deceased, A. R. Midkiff, was driving a truck for Hickock Development & Producing Company which was loaded with water. The crossing is located west of the depot in Cisco and about 300 feet east of a sharp curve. Midkiff was traveling in a southerly direction at the time of the collision at about 20 miles per hour. There are four sets of tracks at this location, the main track of the Texas and Pacific Rilway Company, two passing tracks and the track of the Missouri-Kansas-Texas Railway Company located about 500 feet north of the Texas and Pacific tracks and parallel to them at this point. A person on the Lake Burnie road traveling from north to south as the deceased was on this occasion, must first cross the Missouri-Kansas-Texas tracks and then proceed south 200 or 300 feet, making a sharp turn and travel parallel to the Texas and Pacific tracks for about 100 feet, then make a short right-hand turn and pull up over the railway dump and over the tracks. Between the Missouri-Kansas-Texas tracks and the Texas and Pacific tracks the road runs into a depression and a person traveling this road part of the time would have his back to the Texas and Pacific track and in order to see a train traveling from the west to the east must turn his head entirely around in a westerly direction. On the occasion of the collision, the Texas and Pacific passenger train, which was due in Cisco about 1:05 P.M., and was running practically on time, was traveling from the west to the east. There is evidence that the train approached the crossing at about 50 to 60 miles per hour. There is evidence that the whistle was not blown and the bell was not rung until just immediately before the collision. We quote from the witness Fields who testified as to the conditions existing at the crossing as follows:

'A. You turn and drive alongside of the railroad until you pull right up on it nearly. It makes it hard to see back here if a train was coming, and there was a lot of tall grass back over in here. I don't know whether this shows it very plain or not, and some trees and several mounds of direct right over here that made it hard to see. You also, if you were looking for a train, you would have to turn all the way around and look behind you, and it's an awful bad crossing.

'Q. Now, I believe you say there was tall grass along there? A. Yes, sir, Johnson grass.

'Q. And some hills of dirt? A. Yes.

'Q. Did that obstruct you view any? A. Yeah.

'Q. In seeing the trains? A. It sure did.

'Q. Now, is this a dip in the road right along here, Ted? A. Yes, it's a low place from * * * all along after you get across the Katy crossing until you start up on that T.P., it's low place down in there and makes it a lot harder to see if there's a train coming.

'Q. I see. Now, Ted, as you pull up to that rise, right before you go over the Lake Burnie crossing, is that a pretty steep rise there? A. Yes, sir, it is.

'Q. Did you have to gear down to go across? A. Yes, we always geared down before we started up the rise.

'Q. In other words, you went over that crossing very slowly, didn't you? A. Yes.

'Q. Would you say it took you as long as ten seconds from the time you got to the foot of that rise until the time the end of your trailer cleared the crossing? A. From the time we started up?

'Q. Yes, sir. A. With the front of your truck?

'Q. Yes, sir. Until you cleared the * * * A. Well, it would take several seconds, I don't know just * * *

'Q. It would take a pretty good long time? A. It would take quite a good little time to get up there.

'Q. Now, as you made this turn before you went across the crossing, say at this position right here. Now, right there you should be about twenty-five feet back of the closest tract, wouldn't you? A. I can't tell much about the picture, I guess you would.

'Q. I think the testimony shows, Ted, that this is a picture looking from north to south across the lake Burnie crossing in the direction that A. R. Midkiff was traveling; that this is the rise that you go up right here. A. Yes, right here.

'Q. That picture would be taken, say about twenty-five feet this side of the closest rise there. A. That's right.

'Q. Now, from that position right there, how far up the railroad track could you see a train coming? A. Well, you can see about to that curve there, which is not very far. You can't see it until you get right up on it, though.'

The deceased was driving a heavy truck loaded with water. There is evidence that the road at the crossing was very steep and that it was necessary for a driver to go in low gear in negotiating the crossing. There is a sharp curve 300 feet west of the crossing. There is evidence the train did not emit any kind of a warning signal prior to the collision. There is evidence that it was running at a rapid rate of speed. The deceased approached to crossing driving his truck at about 20 miles per hour. From this evidence and all the facts and circumstances we cannot say that the deceased was guilty of contributory negligence as a matter of law. We hold that reasonable minds might differ as to whether deceased was guilty of contributory negligence. The jury could have properly concluded that the deceased was not guilty of contributory negligence. This being true, the trial court properly submitted the issue raised by the pleadings and the evidence and did not err in refusing to instruct a verdict for appellant. St. Louis B. & M. Ry. Co. v. Brack, Tex.Civ.App., 102 S.W.2d 261; Texas & N. O. R. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683 (Writ Ref.). The rule in crossing accidents such as this is that an injured party will not be deemed guilty of contributory negligence as a matter of law when there is some explanation comparable with reason why he did not see the train with which the collided in time to avoid the collision. When some care is shown the sufficiency thereof is a question for the jury. Gifford v. Fort Worth & D. C. Ry. Co., 151 Tex. 282, 249 S.W.2d 190.

Appellant makes to further contention that the deceased was guilty of contributory negligence because he violated Article 6701d, Sec. 86 of Vernon's Annotated Civil Statutes which is as follows:

'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...