Texas & Pac. Ry. Co. v. Hasting

• Decision Date: 08 June 1955
• Docket Number: No. 5093,5093
• Citation: 282 S.W.2d 758
• Court: Texas Court of Appeals
• Parties: The TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Lloyd HUSTING et al., Appellees.

Page 758

282 S.W.2d 758

The TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Lloyd HUSTING et al., Appellees.

No. 5093.

Court of Civil Appeals of Texas, El Paso.

June 8, 1955.

Rehearing Denied July 6, 1955.

Mays & Leonard, Sweetwater, Elton Gilliland, Big Spring, for appellant.

Guilford Jones, Thomas & Thomas, Big Spring, for appellees.

McGILL, Justice.

Appellees as plaintiffs filed this suit against appellant as defendant to recover damages alleged to have been sustained by plaintiffs in a grade crossing collision which occurred in Stanton, Texas, on October 14, 1952. A pick-up truck driven by Mrs. Mildred Hasting, wife of Lloyd Hasting, was struck by an eastbound freight train of defendant. Two insurance companies that had coverage on the Hasting vehicle intervened. Trial to a jury resulted in judgment for plaintiffs and intervenors against defendant for $16,976.57.

Appellant's first point, on which it lays much stress, is that the court erred in failing to hold that as a matter of law the stalling of the engine on Mrs. Hasting's truck when it got on appellant's track was a new and independent cause which intervened between excessive speed of defendant's train, which the jury found was a proximate cause of the collision, and the collision. Plaintiffs alleged:

'That on the occasion when Mrs. Hasting first saw the train approaching, the train was at least 1,400 feet away and was at such a distance that it was safe for Mrs. Hasting to proceed across the track which whe began to do immediately. That just as her car became astride of the tracks the engine stopped whereupon the locomotive of the Texas & Pacific Railway Company, which was then proceeding in an easterly direction, ran into Mrs. Hasting's car and tore it up, causing the damages and personal injuries hereinafter described.'

Mrs. Hasting testified on cross-examination:

'Q. You looked west and saw the train coming three or four blocks away? A. I imagine so.

'Q. You could see down the track? A. Yes, sir.

'Q. Then you started across the track? A. Yes, sir.

'Q. And at that time you had time to get across before the train got there, didn't you? A. Yes.

'Q. And you would have gotten across if your motor hadn't died? Isn't that right? A. That's right.'

Her testimony was corroborated by the engineer on appellant's train. He testified:

'Q. At the time you first saw this pick-up approaching from the south and as it came upon the track, did the pick-up or not have time to get on across before you got there? A. If it hadn't stopped.

'Q. Do you often see many cars crossing at closer distance than that one was that don't ever get hit? A. Yes, sir.

'Q. If the pick-up had not stopped on the track it would not have been struck, is that correct? A. That's right.'

The fact that the Hasting truck stalled on the track may properly be considered in passing on the issue of proximate cause, but this fact cannot be held as a matter of law to be the sole proximate cause of the collision, or an intervening cause. Polasek v. Gaines Bros., Tex.Civ.App., 185 S.W.2d 609.

Nor can it be said as a matter of law that a similar accident could not have reasonably been foreseen as a natural result of excessive speed. Missouri-Kansas-Texas R. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474.

It is not required that the engineer should have foreseen that this particular accident would happen in the exact manner that it did happen. All that is required is that the injury be of such a general character as might reasonably have been anticipated, and that the injured party should be so situated with relation to the wrongful act that injury to her or to one similarly situated might reasonably have been foreseen. Akers v. Epperson, Tex.Civ.App., 172 S.W.2d 512.

It might reasonably have been foreseen that a car approaching the track as the Hasting car was approaching would for some reason stall when it got on the track. Such a happening is not unusual. Under such circumstances it requires no 'prophetic ken' to reasonably anticipate that excessive speed might result in a collision. This point is overruled.

The second point is that the court erred in failing to render judgment for appellant because Mrs. Hasting was guilty of contributory negligence as a matter of law, in violating Article 6701d, Section 86(c) R.C.S., and that such negligence was as a matter of law a proximate cause of the collision. The court submitted Special Issue No. 14, which was:

'Special Issue No. 14: Do you find from a preponderance of the evidence that as Mrs. Mildred Hasting approached the St. Mary's Street crossing, the train of The Texas & Pacific Railway Company was approaching said crossing within approximately fifteen hundred (1500) feet, and emitted a signal audible from such distance, and such train by reason of its speed or nearness to such crossing was an immediate hazard?' To which the jury answered 'yes'.

Section 86 provides 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: * * *.'

It has been vigorously urged that this case should be reversed and rendered on the ground that Mrs. Hasting was guilty of negligence as a matter of law in proceeding across the tracks after an immediate hazard was created, and could therefore not recover. We can not believe that a rigid enforcement of the statute was ever intended so as to preclude the possibility of a person safely crossing a railroad intersection after the facts creating an immediate hazard had come into being. The engineer's testimony, as well as the testimony of Mrs. Hasting are both clear in stating that she could have proceeded safely across had her motor not died in the middle of the track. Then too, in answer to Special Issue No. 16 the jury declined to find that she had attempted to cross this St. Mary's Street crossing without using ordinary care-in other words saying in effect that she had not failed to use ordinary care. It therefore seems clear that this case should be reversed and remanded for a new trial, and that upon such, and inclusion of the proper issues, it could be determined whether or not she could have or did proceed in safety after she had gotten to the crossing at a time defined by the statute as being one of immediate hazard. Had Special Issue (c) of Requested Issue 13 been submitted perhaps the result would have been more clear, but it does not seem to this writer that this statute should or could be interpreted and enforced in such a manner that when a person finds himself at a railroad crossing when and where an immediate hazard exists, that he can never thereafter again proceed with safety while such hazard exists. Why should the statute use the words 'proceed with safety' if it were not contemplated that such is possible? It would have been easy to have stated in the statute that the driver could not proceed until the hazard had ended, but the statute does not so state. The statute merely requires a person in Mrs. Hasting's position to determine if it is safe to further proceed; it does not forbid her ever making the attempt. Other than the answer to Special Issue 16 there is no clear cut finding that she did or did not make a crossing in conformance with the requirements of the statute. We do not believe that the statute requires anything more than it says, and that is that she can proceed when safe, which in our opinion requires a specific finding to determine that fact.

It therefore seems clear that the jury should have had submitted to it the question as to whether or not she could have proceeded in safety after the conditions creating an immediate hazard had come into being.

Appellant's third point complains of the court's action in submitting Special Issue No. 13 over its objections, on the ground that there was no issue of emergency in the case. We agree with appellant's contention herein because the emergency did not arise until plaintiff's car was on the track. There was no contention on the part of appellant that plaintiff on this occasion was negligent in failing to get her pick-up off the track. Therefore the emergency could only be a defense to any claimed negligent act of Mrs. Hasting after she had her pick-up on the track and was therefore in a position of peril. We therefore think this point should be sustained.

Appellant's fourth point takes exception to the court's error in overruling appellants' objection to Special Issues Nos. 15, 16 and 17. In regard to Special Issue No. 15 we think appellant's objection is sound. Such issue was worded as follows:

'Special Issue No. 15: Do you find from a preponderance of the evidence that as Mrs. Mildred Hasting approached the St. Mary's Street crossing, an approaching train of the Texas and Pacific Railway Company was plainly visible to her and was in hazardous proximity to such crossing?'

This issue deals with the statutory requirements and the court in submitting the issue added the words 'to her' as follows: Section (d) of Section 86 provides:

'An approaching train is plainly visible and is in hazardous...