Texas & New Orleans Railroad v. Day

McDONALD, Chief Justice. This is a negligence case for property damage growing out of a train-truck collision at a railroad-street crossing in the City of Corsicana, at about 1:00 o’clock A.M., when the motor truck trailer of plaintiff was struck by defendant’s southbound train. Understanding of the facts may be aided by the schematic diagram below: Plaintiff’s truck was headed west on East Collin Avenue. The accident occurred at night at 1:00 o’clock in the morning, ^.t the site of the collision, eight sets of rail — 247 — road tracks run diagonal to and across E. Collin Avenue. The distance from the first track to the eighth and last track, is approximately 185 feet. Plaintiff’s truck was struck by defendant Railroad on the fourth track (counting from the direction in which plaintiff was traveling). Plaintiff sued defendant for damages to his truck. Trial was to a jury, which, in answer to special issues, found among other things: 1 and 2) Defendant’s employees operating the train failed to keep a proper lookout, and such was a proximate cause of the collision. 3, 4 and 5) Defendant’s train was running 25 miles per hour just prior to the collision; which was negligence; and a proximate cause of the collision. 16) Plaintiff’s driver did not fail to keep a proper lookout for trains while he was approaching the track where the collision occurred. 18) Defendant’s train was not plainly visible before plaintiff’s truck reached a point 15 feet from the nearest rail of such railroad track at the point in question. (The Trial Court gave the following instruction in connection with the foregoing issue: “An object is plainly visible when a reasonably prudent person, situated as was plaintiff’s driver and exercising ordinary care for his own safety, should have seen it.”) 20)Defendant’s train was not in hazardous proximity to the crossing before plaintiff’s truck reached a point 15 feet from the nearest rail of such railroad track. (The Trial Court gave the following instruction in connection with the fore.going issue: “By the term ‘in hazardous proximity’, is meant such proximity that under all the surrounding facts and circumstances in evidence, the speed and nearness of the train was such that a reasonably prudent person situated as was plaintiff’s driver, would have known that an attempt to proceed over the crossing ahead of the train was hazardous.”) 21) Plaintiff’s driver stopped within 50 feet but not less than 15 feet from the nearest rail of such railroad track. 22) After so stopping plaintiff’s driver did not proceed when he could not do so with safety. Upon the special issue verdict of the jury convicting defendant of negligence, and acquitting plaintiff’s driver of contributory negligence, the Trial Court rendered judgment for plaintiff for damages to his truck. Defendant’s motion for new trial was overruled and defendant appeals on 17 points, and which present five basic contentions : 1. (Point 1) The evidence is insufficient to show negligence on the part of defendant’s operatives. The evidence conclusively shows negligence on the part of defendant’s driver. 2. (Point 2) The evidence conclusively shows that the collision was proximately due to negligence of defendant’s driver, a) in failing to keep a proper lookout for trains, b) in failing to stop within 50-15 feet from the nearest rail of the track upon which defendant’s train was traveling, c) in proceeding upon such track when he could not do so with safety. 3. (Point 3) The jury verdict is against the great weight and preponderance of the evidence. 4. (Points 4 through 15) Complain of the Trial Court’s action in refusing to submit issues requested by defendant. — 248 — 5. (Points 16 and 17) Complain of the Trial Court’s action in admitting into evidence the Corsicana city ordinance making it unlawful for a train to travel more than 20 miles per hour; and the Trial Court’s admission into evidence of a certified copy of a record of the Texas State Railroad Commission. Reverting to defendant’s 1st and 2nd contentions — The jury convicted defendant of negligence in failing to keep a proper lookout, and in traveling 25 miles per hour. The jury further found that such constituted a proximate cause of the collision. We think that such issues were raised, and that such findings are amply supported in the evidence. Defendant’s further contention herein is that plaintiff’s driver was guilty of contributory negligence as a matter of law, in failing to keep a proper lookout for trains, and in failing to stop 50-15 feet from the nearest rail of the track upon 'which defendant’s train was traveling, and in proceeding upon such track when he could not do so with safety. Defendant further contends that the evidence conclusively shows that the plaintiff’s driver was guilty of such conduct; that such was negligence; and a proximate cause of the collision as a matter of law; and that defendant should have been granted an instructed verdict or a judgment non obstante veredicto by the Trial Court. Defendant cites Vernon’s Ann.Civ. St. Article 6701d, § 86, and contends that since plaintiff’s driver did not stop at the track upon which its train was traveling, that plaintiff is guilty of contributory negligence as a matter of law. There were eight tracks in the space of some 185 feet. The second track was some 50 feet from the first; the third some 25 feet from the second; the fourth some 18 feet from the third. Plaintiff’s truck was 45 feet long. Plaintiff’s driver stopped at the first track on the grade crossing, and looked both ways. No train was coming and he proceeded. A review of what duties Article 670 Id, § 86, imposes is deemed appropriate at this point. Our Supreme Court, in Missouri-Kansas-Texas Ry. Co. v. McFerrin, Tex., 291 S.W.2d 931, 935, in its analysis of Article 6701d, § 86, points out that the duty of a motorist to stop 5CC-15 feet of a railroad track is not absolute, but is conditional, as is the duty of the motorist, having stopped, not to proceed until such can be done with safety. “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 visible’, and (3) The train must be ‘in hazardous proximity’ to the crossing. Before either duty can be said to have been absolute in a particular case so as to form the basis of an instructed verdict all three conditions must be conclusively established by the evidence. “We are next confronted with the problem of deciding what test is to be used in determining whether, in a given case, an approaching train was ‘plainly visible’ and ‘in hazardous proximity’ to a crossing so as to give rise to the statutory duty to stop. ***** * «* * * jn determining whether or not the defendant’s train was plainly visible, however, you must determine whether it was plainly visible to a person exercising reasonable care under all the facts and circumstances, as shown by the evidence * * *. * ‡ * * * * “⅜ * * We gee no soun¿ reason to be dissuaded from applying the common-law test of the reasonably prudent man in determining whether, under the statute, a train was ‘plainly visible’ and in ‘hazardous proximity’ to a crossing.” — 249 — Back to the case at bar, plaintiff’s driver was, by virtue of the statute, under a conditional duty to stop 50-15 feet before the track upon which the train was approaching; such condition precedent to the duty to stop being that a train was plainly visible and in hazardous proximity to the crossing. The McFerrin case, supra, says that in determining whether or not the defendant’s train was plainly visible, etc., you must determine whether it was plainly visible to a person exercising reasonable care under all the facts and circumstances as shown by the evidence — and “we see no sound reason to be dissuaded from applying the common-law test of the reasonably pm-dent man in determining, whether, under the statute, a train ivas ‘plainly visible’ and ‘in hazardous proximity’ to a crossing.” Since the common law test is applicable under the McFerrin case, we cannot convict plaintiff’s driver of contributory negligence as a matter of law if there are any issuable facts to go to the jury — or if there is any evidence sustaining the jury’s acquittal of plaintiff’s driver of contributory negligence. The jury acquitted plaintiff’s driver of contributory negligence in each matter inquired about by the Trial Court. We come now to examine the record before us to see if there is any evidence to support the findings of the jury acquitting plaintiff’s driver of contributory negligence • — or any evidence which could make for issuable facts as to whether he was negligent. Plaintiff’s driver stopped prior to approaching the first set of tracks, and looked to his right and left and saw nothing; and then proceeded at about seven to ten miles per hour across the tracks; he heard the sound of a diesel engine from his left; he saw a caboose on a freight train lighted up on his left. He was afraid that the freight train upon which he saw the lighted caboose might back over him so he watched the caboose and did not look to his right again until just prior to the time the train struck him; he saw the train, but at a time when it was too late to stop before crossing the track and too late to back off the track the train was approaching on from the right. The question is whether plaintiff, in watching the caboose to his left, and not looking to the right more often than he did, “failed as a matter of law” to keep a proper lookout. The test is what a reasonably prudent man would have done under the circumstances. The McFerrin case, supra, says: “In determining whether or not the Defendant’s train was plainly visible (thereby requiring plaintiff to stop), however, you must determine whether it was plainly visible to' a person exercising reasonable care under all the facts and circumstances.” Certainly plaintiff should have kept an eye on the caboose since he recognized it as a danger and a hazard. 35 T.J., Sec. 348, says: “Where the conditions at the crossing were such that some difficulties were presented to the traveler, who was consequently required in the exercise of ordinary care in some degree to divide his attention between such difficulties and the more serious and imminent risk that a train may be approaching, it is for the jury to say whether he acted with due caution. The verdict will not be set aside merely because it appears that if he had looked at the proper moment in approaching the crossing he would have seen that the train which ran him down was approaching — assuming, of course, that the train was traveling at an excessive speed * * * or in some other respect the defendant was found to be guilty of negligence.” Our Supreme Court, in Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139, 140, says: “Conceding that the physical conditions were such that as Kirksey approached said crossing he might have discovered the approaching trolley car in time to have avoided the collision had his thought and attention not been — 250 — distracted, by Deloach’s signals to stop and his movement toward the automobile as it slowed its speed, there remained for the jury the question whether under all the facts and circumstances, including said distractions, a reasonably prudent person, in Kirk-sey’s situation, would or would not have done substantially as he did.” In Chicago, R. I. & G. Ry. Co. v. Laro, Tex.Civ.App., 273 S.W. 684, 685, W/E dis., the court says: “[The facts] show the intersection of a railway by a public road, en-vironed by conditions which presented at least slight difficulties to the traveler, who was required in the exercise of ordinary care to in some degree divide his attention among those difficulties and the more serious and imminent danger of approaching trains. In other words, he was passing through a situation requiring the use of discretion on his part. It was not a case where the traveler was confronted with no other danger or difficulty than that of an approaching train, in which case only is a court permitted to assume from undisputed physical facts that, because he deliberately walked into the single and obvious danger, the traveler is guilty of contributory negligence as a matter of law. "Whether or not the deceased wisely exercised his discretion in the situation through which he was obliged to pass is not a question for decision here. Whether he properly divided his attention among the several objects of danger, or accurately gauged those dangers, or looked down the track at the precise psychological moment — if indeed ■a psychological moment was ever available to him, in view of the terrific speed of the train — these questions are not now in the case. It is sufficient for this court to determine that the peculiar facts of the case called for the use of some■ degree of discretion by the traveler, and, when that is determined,, the decision relates back to the finding of the jury, which, being supported by the testimony, must not be disturbed.” In Beaumont, S. L. & W. R. Co. v. Richmond, Tex.Civ.App., 78 S.W.2d 232, 235, distance, had an unobstructed view of the crossing covered by appellee’s W/E dis., the court says: “It is true that appellee, for a long freight train, but Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139, is authority for the proposition that, though one may have an unobstructed view of the crossing, yet the-‘distractions’ of the moment may make-the issue of contributory negligence a-fact issue for the jury * * * 35 T.J., Sec. 348, continues: “Thus a verdict is sustainable where the attention of the traveler was diverted by * * * a train on another track.” In Texas & Pacific Ry. Co. v. Midkiff, Tex.Civ.App., 275 S.W.2d 841, 844 (no. writ history), the court says: "The rule in crossing accidents such as this is that an injured party will not be deemed guilty of contribtitory negligence as a matter of law when there is some explanation comparable with reason why he did not see the train zvith which he collided in time to avoid the collision. When some care is shown the sufficiency thereof is a question for the jury.” Under the record in the instant case, plaintiff saw the caboose and the danger it implied by backing over the crossing. Can we say as a matter of law that plaintiff was not justified, as a reasonably prudent man, in not looking to his right more than he did? It is not in evidence that plaintiff did not look to his right. He looked when he — 251 — stopped at the first track. He looked again just before the train hit him. He simply did not look to the right soon enough the last time to stop before he got on the track the train was on, or to get off such track before the train hit him. He was not wholly neglecting to look to the right. He looked twice, he didn’t look more often because he was watching the train on his left, a source of known danger. This factual situation poses acts of caution on plaintiff’s part; even to looking to his right on two occasions. When the evidence discloses clearly a lack of ordinary care, we should not hesitate to set aside a jury verdict; but where acts of caution are testified to and where full attention to the right was diverted by a train on the track to the left, we think, under the authorities cited, this makes for a jury question. Here the jury heard the evidence and acquitted plaintiff of contributory negligence. In reviewing such a finding we are confined to a consideration of the evidence most favorable to the verdict, as well as the inferences and conclusions therefrom most favorable to sustaining the verdict. If reasonable minds can differ as to the inferences and conclusions to be drawn from the evidence, and viewed in a light most favorable to sustain the verdict, then we cannot hold as a matter of law that plaintiff was guilty of contributory negligence. See Gifford v. Fort Worth & D. C. Ry. Co., 151 Tex. 282, 249 S.W.2d 190. In the case at bar plaintiff was taking steps and performing acts of caution for his own safety, to-wit: He stopped at the first track; looked both ways; proceeded cautiously; looked to the left and saw the lighted caboose; and finally looked to the right and saw the approaching train, albeit too late to stop before getting on the track. From the foregoing, and tested in the light of the authorities cited, we cannot say as a matter of law that plaintiff failed to keep a proper lookout, or that the train to the right was plainly visible to a person (plaintiff) exercising reasonable care under all the facts and circumstances in this case. We are not called upon to determine what our judgment would have been if the evidence had been presented to us in the first instance; a jury has passed on the issue of plaintiff’s contributory negligence; a trial judge has refused to set aside their verdict; and viewing the record as we must, in the light most favorable to sustaining the verdict as well as the inferences and conclusions from such evidence most favorable to sustain the verdict, we cannot say that plaintiff has been convicted of contributory negligence as a matter of law. To so hold would do violence to Article 6701d, Vernon’s Ann.Civ.St., as interpreted by the majority opinion of our Supreme Court in the McFerrin case, supra. Defendant’s 1st and 2nd contentions are overruled. We have carefully weighed the evidence and have concluded that the verdict of the jury is not against the great weight and preponderance of the evidence. Defendant’s 3rd contention is accordingly overruled. Defendant’s 4th contention encompasses it points on appeal 4 through 15. Points 4 through 11 complain of the Trial Court’s refusal to submit to the jury defendant’s requested Special Issues 1A, 2, 3, 4, 5, 6, 7 and 8. The requested issues inquire of the jury of the same matters inquired about in the Court’s charge in Issues 18-24A, except the requested issues use the words “the track upon which the train was traveling”, rather than the words “the nearest rail of such railroad”. The Trial Court, in submitting the issues, used the words of the statute (6701d, § 86), which would be all right if the crossing had been a single track crossing. Here we have an eight track crossing, with the collision occurring on track No. 4, some 93 feet from the first track or nearest rail of the crossing. The issues requested by defendant were clearly raised by the pleadings and defendant was entitled to have them sub — 252 — mitted unless they were substantially covered by the issues submitted by the court. The issues submitted by the Trial Court inquired about "the nearest rail of such railroad,’’. As noted, this was some 93 feet from the place and track where the collision occurred. Since the statute is intended to apply to the track upon which there is an approaching train, defendant was entitled to have the issues submitted framed to apply to the track upon which the train was approaching and upon which the collision in fact took place. The manner of the Trial Court’s submission was calculated to confuse the jury, and the record reflects that the jury in fact did become confused, and propounded in writing to the court the following question: "The jury wishes to know if in Special Issue 18 the 15 ft. referred to is in relation to the Main track or the first track driving west.” The court replied to such question: “Ladies and Gentlemen of the Jury: The Court regrets that he is unable to answer the question propounded to him.” We think that defendant was entitled to have the requested issues submitted and that the failure of the Trial Court to submit same requires a reversal of this case. See Panhandle & Santa Fe Ry. Co. v. Karr, Tex.Civ.App., 257 S.W.2d 486, affirmed 153 Tex. 25, 262 S.W.2d 925; Lackey v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 225 S.W.2d 630. Defendant’s points 12, 13, 14 and 15 complain of the Trial Court’s failure to submit other issues requested by defendant. Point 12 is levelled at the Trial Court’s refusal to submit Requested Issues 13, 14 and 15, on proper lookout. We perceive no merit to this contention since the Trial Court, in Issues 16, etc., of its charge, submitted substantially the issues contended for. We deem it unnecessary to discuss points 13, 14 and 15, 16 and 17, in view of the disposition being made of the case. We sustain defendant’s points 4 through 11 and the cause is accordingly reversed and remanded.