Fort Worth & Denver Railway Co. v. Williams , 1963 Tex. App. LEXIS 2116 ( 1963 )

DENTON, Chief Justice.

A more thorough study of this case upon the motion for rehearing has convinced me a further discussion of the case is advisable. A general statement of the nature and the result of the case has been set out in the original opinion, therefore, a repetition of the general facts surrounding the collision and a restatement of the jury findings are not necessary.

Seventeen of appellant’s points of error contend there was insufficient evidence to support the jury’s answers to the special issues concerning the negligence of the appellant’s employees and contributory negligence of the deceased, O. B. Williams. In addition, appellant urges by nine other points of error that the jury’s answer to the special issues which found the deceased was not guilty of contributory negligence, and the finding that the crossing was extra hazardous was not supported by any evidence.

The first group of points raising the sufficiency of the evidence presents a question of fact. In order to pass on these issues, it is necessary that we review and consider all the evidence. As I understand it, the primary basis for appellee’s cause of action is that the crossing was extra hazardous immediately prior to the collision. The other alleged acts of negligence on the part of appellant’s employees are elements of this broader question. Appellee concedes the crossing itself is not hazardous. There were no natural obstructions in the immediate vicinity of the crossing to obscure the view of approaching motorists. It has long been established that the particular conditions at a particular time may render a crossing extra hazardous. Beaumont, S. L. & W. R. Co. v. Richmond (Tex.Civ.App.), 78 S.W.2d 232. The Commission of Appeals in Tisdale v. Panhandle & S. F. Ry. Co., Tex.Com.App., 228 S.W. 133, 16 A.L.R. 1264 (Opinion Adopted), stated the general rule as follows:

“Conditions surrounding a crossing may and do, change materially from time to time. A flagman might not be required under the law at a certain crossing at one time, and yet it might be negligence to fail to provide one there at another time. The sole question for determination is whether or not at the time of the accident the conditions surrounding the crossing in question rendered it more than ordinarily hazardous or unusually dangerous."

Appellee’s contention, both in the trial and on this appeal, is that the headlight of the passenger engine so obstructed the boxcar at the crossing that the deceased was unable to detect it in time to stop his automobile; and that this condition rendered the crossing extra hazardous. Appellee then contends that under such a hazardous condition the appellant’s employees were negligent in failing to perform certain alleged precautions, to-wit: Place a fuse on the east side of the train; failure to place a signalman on the highway; and that they were negligent in failing to cut the train so as to clear the crossing. If appellee’s theory of this case is sufficiently proved, the many cases which hold a boxcar is so easily seen that extra precautions are not necessary would not be controlling here. In my opinion the pleadings and evidence are sufficient to raise this question of fact. As the deceased, O. B. Williams, was killed almost instantly and his twelve-year old son was asleep in the car at the time, no one was in a position to testify directly to the effect of the light. William G. Chandler, Jr., fire chief of Petersburg, was called to the scene of the collision shortly after it occurred. He testified: “I was remarkably close before I saw the boxcar. And, one of the things that stands in my mind was that all of a sudden seems like there was a boxcar materialized out of the darkness and I was — it seemed close. Now what was the cause of it I don’t know.”

The trial court admitted into evidence an experiment conducted by ap-pellee’s attorney. It was in the form of a moving picture of an experiment designed to simulate the conditions existing at the scene of the collision. Appellant’s objection to the introduction of the evidence was based on the ground the experiment was not under substantially similar conditions as existed at the scene of the collision. In my opinion the question of the admissibility of this type of evidence is largely within the discretion of the trial court, and goes more to the weight than to the admissibility thereof. It was within the province of the jury to consider and weigh this evidence. The attorney who conducted the experiment testified to the technique and equipment used and the circumstances under which this experiment was conducted. The jury had the benefit of this testimony in weighing and considering this evidence. It is to be noted the attorney explained that this experiment was performed only because of his inability to use the facilities of the appellant railroad company. In my opinion the admission of such evidence was not reversible error. It is well settled that ultimate facts in negligence cases may be proved by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. This case is also authority for the rule that the jury is not only the judge of the facts and circumstances proved, but may also draw reasonable inferences and deductions from the evidence adduced before it.

Appellant introduced evidence to show the crossing was open and obvious, and that the approach was from a straight line for some one-half mile. There was evidence the fuse thrown on the west side of the tract was visible to drivers approaching from the east, and that the freight train had stopped on the crossing only a short time before the collision occurred. A physicist testified to certain tests he made with a light meter. He testified a light such as that shown from the engine did not obscure a freight car at a distance of 1,300 feet “if there is no temperature gradient of an unusual nature in the air. That is, it has to be a vertical temperature gradient.” The witness had not known of such conditions in any of his experiments, but there was nothing in the record concerning the “temperature gradient” at the time and place of this collision. Appellant also offered testimony of several witnesses who observed an experiment conducted at the scene by the railway company. The test was conducted by placing freight cars and an engine in the positions they were in at the time of the collision. These witnesses testified they observed the freight cars some 125 to 140 yards ahead, and they saw the lighted fuse at least 100 yards from the tracks. It is obvious that the testimony presented in this case is conflicting and contradictory.

In Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, Justice Simpson made the following observation, “Each case of a crossing collision is characterized by its own particular facts, and manifestly it would be most difficult to contrive a generalization which would aptly fit every situation.” In this case the crossing was open and the approach was straight and unobstructed. The collision occurred on a clear night at approximately midnight. A freight train was placed on an adjoining sidetrack to permit a passenger train to proceed on the main line. In the process, the freight train blocked the highway crossing. There was evidence the passenger train was some 1,000-1,300 feet from the crossing at the time of the impact. The passenger engine’s headlight was admittedly shining straight ahead as it moved slowly toward the crossing, and it obviously threw its light rays onto the main track which lay to the east of the side track upon which the freight train was situated. The main track was between the freight train and approaching traffic from the east. The passenger train was proceeding toward the crossing at a slow rate of speed. It is reasonable to assume Williams could see the passenger train’s headlight as it approached from his left. In my opinion this constituted a distraction to the deceased. The fuse light shining under the boxcar could likewise have created the illusion that the crossing was open and clear. Under such circumstances, it has been held that the issue of contributory negligence becomes a fact issue to be determined by the jury. Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139. Beaumont, S. L. & W. R. Co. v. Richmond, supra.

I am of the opinion this Court’s original opinion was incorrect in citing and following the rule of law laid down by McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391. The holding that the deceased, O. B. Williams, voluntarily exposed himself to a danger he realized, or should have realized, has no application here. On the contrary, the applicable rule of law under the facts and circumstances here is that it is presumed the deceased was doing whatever was reasonably necessary for his own safety. This presumption is strengthened by the fact the deceased’s son was a passenger in the car at the time. International-Great Northern R. Co. v. Acker (Tex.Civ.App.), 128 S.W.2d 506 (Dismissed). Gulf, C. & S. F. Ry. Co. v. Bouchillon (Tex.Civ.App.), 186 S.W.2d 1006 (Refused, WM). Dewhurst v. South Texas Rendering Co. (Tex.Civ.App.), 232 S.W.2d 135 (Refused, NRE). After reviewing all the evidence together with the circumstances and the reasonable inferences the jury may draw from the evidence before them, I am of the opinion the evidence is ■sufficient to support the jury verdict.

Appellant’s next group of points of ■error deal with the contention there was no evidence to support the jury verdict which found no contributory negligence on the part of the deceased. Texas & Pac. Ry. Co. v. Day, supra, is the authority for the rule: “It is only in instances where one crossing a railroad track has failed to exercise any degree of care for his safety that our courts have felt impelled to deny a recovery as a matter of law.” See also Hines v. Arrant (Tex.Civ.App.), 225 S.W. 767 (Error Refused). In passing on these points raising the “no evidence” question we are required to review the evidence in the light most favorable to the verdict and disregard all evidence which is adverse or contrary to the favorable evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. In so viewing this record, I am convinced there was evidence to support the jury’s verdict. These points of' error are without merit and should be overruled.

Appellant further complains of certain jury argument of appellee’s counsel. It is not deemed necessary to set out the arguments complained of, but in my opinion the arguments are not of such a nature as to require a reversal of the case. Appellant has totally failed to sustain its burden of proof as required by Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

Appellant urges that the amount of damages assessed by the jury is excessive. In response to the damage issue, the jury awarded Mrs. Williams, the surviving wife and mother, $44,000.00; Linda Gay Williams, a daughter, $2,750.00; Kenneth Brode Williams, a son, $9,000.00; and Rodney Glenn Williams, a son, $11,000.00. This is a total recovery of $66,750.00. Ap-pellee’s pleadings and prayer for damages are somewhat confusing, but a careful analysis of such pleadings indicate the maximum amount that can be justified is a recovery of $60,000.00 for both the surviving wife and children. Under this record it is apparent the judgment is excessive by the sum of $6,750.00. By the authority given this Court by Rule 440, T.C.R.P., I would require a remittitur of such sum and direct that the amount awarded Mrs. Williams be reduced by that amount.

All of appellant’s points of error have been examined and considered, and those which have not been specifically overruled are without merit.

I would, therefore, reverse and remand this case unless appellee, Mrs. O. B. Williams, files a remittitur in the amount of $6,750.00 within fourteen days after the date of this opinion. In the event such re-mittitur is tendered, I would reform and affirm the judgment of the trial court.