Texas & Pacific Railway Company v. McCleery

• Decision Date: 26 July 1967
• Docket Number: No. A--11491,A--11491
• Parties: TEXAS & PACIFIC RAILWAY COMPANY, Petitioner, v. Clarence T. McCLEERY, Respondent.
• Court: Texas Supreme Court

Page 494

418 S.W.2d 494

TEXAS & PACIFIC RAILWAY COMPANY, Petitioner, v. Clarence T. McCLEERY, Respondent.

No. A--11491.

Supreme Court of Texas.

July 26, 1967.

Rehearing Denied Oct. 4, 1967.

Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for petitioner.

Geary Brice & Lewis, Ray G. Besing, Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Dallas, for respondent.

CALVERT, Chief Justice.

In an opinion delivered in this case on April 12, we wrote at considerable length in disposing of a contention which we understood respondent to be pressing upon us. In his motion for rehearing, respondent asserts that we misunderstood his contention and disavows the interpretation we placed on his argument. Whether our writing on the question was due to our inability to understand respondent's argument or to misleading emphasis in which it was cast, is now immaterial; the contention is no longer in the case, and the writing should be eliminated. Accordingly, the opinion delivered on April 12 is withdrawn and the following is substituted therefor.

This suit for damages for personal injuries, brought by Louis D. Hardgrave and Clarence T. McCleery against Texas & Pacific Railway Company, The Southern Pacific Company, and Texas & New Orleans Railroad Company, grew out of a collision between a Texas & Pacific train and a truck operated by Hardgrave in which McCleery was riding as a guest or passenger. The collision occurred at a point where the railroad track crosses South Lamar Street in the City of Dallas. As the case reaches this court, Hardgrave, The Southern Pacific Company and Texas & New Orleans Railroad Company have gone out of the case. The only question to be decided is whether there is in the record evidence of probative force to support a jury finding that operation of the train on the occasion in question at a rate of speed in excess of 12 miles per hour was a proximate cause of the collision.

The case was tried to a jury. In answer to special issues, the jury found Hardgrave guilty of certain negligent acts and omissions which were proximate causes of the collision, but that none of such acts or omissions was the sole proximate cause of the collision. In answer to other issues, the jury absolved The Southern Pacific Company and Texas & New Orleans Railroad Company of any negligent conduct which was a proximate cause of the collision, but found that the Texas & Pacific train was being operated on the occasion in question at a rate of speed in excess of 12 miles per hour, that such operation was negligence and that such negligence was a proximate cause of the collision. The verdict would normally have required a judgment that Hardgrave take nothing against the various defendants, but that McCleery recover his damages as found by the jury from Texas & Pacific. See Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). However, the trial court disregarded the jury findings of negligence and proximate cause in the operation of the train at a speed in excess of 12 miles per hour and rendered judgment that both Hardgrave and McCleery take nothing by their suits. The court of civil appeals held that there was evidence to support the foregoing jury findings and that the trial court erred, therefore, in disregarding such findings and in rendering a take-nothing judgment against McCleery. Having so held, the court of civil appeals then considered and sustained cross-points of error presented by Texas & Pacific by which it urged that the evidence was factually insufficient to support the findings. The court of civil appeals then severed McCleery's cause of action against Texas & Pacific and as to such cause reversed the judgment of the trial court and remanded the cause for a new trial. In all other respects the judgment of the trial court was affirmed. Hardgrave v. Texas & Pacific Ry. Co., Tex.Civ.App., 401 S.W.2d 693. Only Texas & Pacific complains of the judgment. It asks that the judgment in the severed cause be reversed and the judgment of the trial court be affirmed.

By proper points of error Texas & Pacific asserts that the court of civil appeals erred in holding that there is in the record evidence of probative force to support the jury's findings that operation of its train on the occasion in question at a speed in excess of 12 miles per hour was negligence and a proximate cause of the collision. Evidence bearing on the questions to be decided is set out in the opinion of the court of civil appeals in considerable detail. It will be considered here only in summary.

The collision occurred at about 11:15 p.m. The night was clear and the streets were dry. The train was composed of five engine units and 129 freight cars and was crossing South Lamar Street, traveling from west to east. The truck was approaching the crossing from the south. A wigwag signal was located south of the track. A Dallas city ordinance in force at the time limited the speed of trains in the city to 12 miles per hour. The engineer knew of the ordinance but was operating the train at the time at a speed of approximately 25 miles per hour. The truck ran into the south side of the train while the train was in process of crossing the street. To this point the facts appear to be undisputed.

The engineer testified that he did not see the approaching truck and did not know there had been a collision until he was advised of it by a radio message after the train had left the City of Dallas. He could give no testimony concerning the circumstances surrounding the collision. McCleery did not see the train approaching or crossing the street. He heard Hardgrave say, 'there's a train,' but remembered nothing of events occurring thereafter until he regained consciousness sometime later in the hospital. Hardgrave was the only eyewitness to the collision, and if evidence is to be found in the record in support of the jury's findings, it must be found in the testimony of Hardgrave and in reasonable inferences to be drawn therefrom and from testimony and other evidence concerning physical facts. In deciding whether there is such evidence we must honor the well established rule which requires that we view the evidence in its most favorable light in support of the verdict. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

Viewed most favorably in support of the jury's findings, the evidence showing the circumstances surrounding the collision may be summarized thusly: The train was moving toward and across South Lamar Street at a speed of 25 miles per hour and the truck was moving toward the railroad truck at a speed of 15 to 20 miles per hour. The train began its approach to the crossing at a distance of 1,320 feet. The wigwag signal was activated by the train's passing over a relay switch located 983 feet west of the crossing. Neither Hardgrave nor McCleery heard a whistle or a bell and neither saw the wigwag signal working.

Obstructions west of the street and south of the track greatly reduced the normal range of vision of both the engineer and Hardgrave; the train should have been visible to Hardgrave and the truck to the operator of the train when the truck was 90 feet from the crossing and the train was 234 feet therefrom. McCleery did not see the approaching train and Hardgrave did not see it until it was 'almost on the road.' When Hardgrave saw the lead engine unit, the truck was some 55 to 75 feet from the track. Hardgrave immediately applied his brakes and tried to turn to his right. The front of the truck crashed into the side of the moving train, the truck was spun around with the rear hitting the train and was thrown against a signal post. Skid marks of the truck leading toward the track measured 48 feet. The only evidence of the point of first impact was found on the fifth car behind the engine units. Four of the engines were each 50 feet long, one was 55 feet, and the cars were each at least 40 feet long. There is no evidence that any of the train crew saw the truck at any time.

For purposes of this opinion, we will assume that the finding of negligence is...