Attebery v. Henwood , 1943 Tex. App. LEXIS 724 ( 1943 )

This suit was brought by R. J. Attebery and wife, Susan, against Berryman Henwood, trustee; St. Louis Southwestern Railway Company of Texas, debtor, to recover damages alleged to have been sustained by plaintiffs on account of the death of their son Wesley Attebery who was killed about 5:45 o'clock on the morning of November 8, 1941, when a gravel truck, driven by C. C. Ward, on which the deceased was riding as a passenger or guest, was struck by one of defendant's passenger trains, about 10 miles west of Texarkana in Bowie County, Texas, at the intersection of a public road and defendant's railroad, known as the Trexler crossing. Judgment was entered in favor of defendant upon a jury verdict. Plaintiffs have appealed.

Appellants' Points 1, 2, 3 and 4 raise the contention that there is an irreconcilable conflict in answers of the jury to special issues, rendering the verdict insufficient as the basis for judgment. The jury found, in substance, that defendant was negligent in failing to sound the whistle and in failing to ring the bell at a distance of 80 rods from the crossing, and in failing to keep the bell ringing from said distance until the train reached the crossing; and that the defendant was negligent in operating the train at a speed of 60 miles per hour immediately before the collision. The jury found further that C. C. Ward, driver of the truck, was negligent in failing to look and in failing to listen for a train before driving upon the crossing; and that the deceased was negligent in failing to look and in failing to listen for a train before Ward drove the truck upon the crossing. But the jury further found that none of said acts of negligence on the part of defendant or Ward or the deceased was a proximate cause of the collision. The jury further found that it was not an unavoidable accident. The contention is made that the finding, that it was not an unavoidable accident, is in conflict with the findings that the accident was not caused by the negligence of the defendant or of Ward or of the deceased, in the acts inquired about in the issues submitted.

The record shows that not all the issues of negligence raised by the testimony were submitted to the jury. Appellant pleaded, and, in our opinion, the testimony was sufficient to raise the issues as to whether it was an extra-hazardous crossing, at which appellee had negligently failed to provide a flagman, or some mechanical warning device. Such issues were not submitted to the jury. The jury may have concluded that such was a proximate cause of the accident. So, the fact that the jury found that it was not an unavoidable accident and failed to find that the accident was caused by any of the acts inquired about in the issues submitted, does not in the facts of this record present an irreconcilable conflict in the findings of the jury. The assignment is overruled.

Appellants' fifth and sixth points raise the contention that the court erred in refusing to submit their requested special issues 4, 5, 6, 7, 8 and 9, inquiring whether appellee had failed to place a flagman at the crossing or to equip it with a bell, gong, or other mechanical device to warn persons about to use the crossing of the approach of trains; and was such failure, negligence, and a proximate cause of the collision. Appellee makes the counter-contention that refusal to submit said requested special issues was not error: (1) Because there was no evidence tending to show that it was an extra-hazardous crossing; and (2) because there was no issue submitted, or requested, inquiring whether the crossing was extra hazardous.

Appellants' witnesses testified, in substance, that the Trexler crossing where the accident occurred is located about 10 miles west of Texarkana, in Bowie County, Texas, at a point where appellee's railroad runs east and west; that the Shipley Gravel Pit is located immediately south of the railroad about 1/4 mile east of the Trexler crossing; that from the Shipley Gravel Pit west the public road closely parallels the railroad to the approach of the crossing, where it makes a sharp right-hand turn to the north, and thence passes over the railroad track; that at the point of turning from west to north, at the approach of the crossing, the public road is located a distance estimated from 45 to 65 feet south of the rails; and that the public road at said point is about 20 feet lower than the railroad track and continues to become lower back east to, or near to, the gravel pit; that the gravel truck in which deceased was riding at the time he was killed had traveled, from the Shipley Gravel Pit, west to the approach of the crossing, where it stopped or nearly stopped, turned to the north and was passing over the crossing, when hit by one of appellee's passenger trains traveling west. At the crossing there is nothing to obstruct a person's view of a train approaching from the east for approximately 80 rods, unless it be the height of the railroad embankment above the public road, and a "cut", as indicated by the following testimony: "A man in a truck or vehicle traveling west down the Shipley road from the Shipley pit to this crossing and turning north over the crossing can cast his eyes to the right or east, and see plumb down to the Shipley house. You can see to the Shipley house, but you might not see a train plumb down there because it comes out of a cut down there. It is approximately less than a quarter of a mile to that cut. I can see that cut in this photograph, and I can see where the train would come, and it might be just as straight as a crow can fly plumb on through. From the intersection south of the railroad or from the turn south of the railroad to the crossing, this distance of 45 to 65 feet, the view of the track to the right is plain plumb on down there, but not plumb on down to the Shipley house, because you are down longer than the railroad track at that time, and that is why you can't see it."

The testimony further shows that at the time and for a month or more prior to the accident about 50 trucks were engaged in hauling gravel from the Shipley Pit to two large War Plants being constructed north of the Trexler crossing where the accident occurred; that each truck made an average of 14 loads (the 50 trucks making a total of approximately 1400 single trips) per day over this crossing, beginning about 4 or 4:30 o'clock each morning; that in addition to said gravel trucks the travel over this crossing by other motor vehicles was "heavy"; that said War Plants employed "thousands" of people, many of whom passed over this crossing in going to and from their work; that for several weeks prior to the accident the traffic over this crossing was in a "congested" condition. Appellee's engineer operating the train involved in the accident testified that four passenger trains, making eight passages, and "lots" of freight trains, passed over this crossing each day. The engineer and fireman further testified to the effect that they had been passing this point twice each day at approximately 5 o'clock a. m. and 10 o'clock p. m. and that they had never seen a truck pass over this crossing or any character of traffic using it.

No flagman was stationed at the Trexler crossing, nor was it equipped with any mechanical device to give warning of the approach of trains. No issue was submitted, and none requested, inquiring whether it was an extra-hazardous crossing.

In our opinion, the testimony was sufficient to raise the issues, to be determined by the jury, as to: (1) Whether it was an extra-hazardous crossing; (2) whether appellee was negligent in failing to provide it with a flagman or some mechanical warning device; and (3) whether such negligence, if any, was a proximate cause of the collision. But we believe that, as the testimony only raises a jury question as to whether it was an extra-hazardous crossing, the submission and an affirmative finding on that issue was essential to a recovery in the respect here sought. It was a controlling issue, a separate and distinct inquiry of a primary fact necessary to be established, and without which, culpable negligence cannot be shown for failure to provide the crossing with such extraordinary means of safety. Expressed in other words, it was the basic fact upon which the relevancy or effect of the facts sought to be established by the special issues requested by appellant are, in law, conditioned or limited. Wichita Falls Okla. Ry. Co. v. Pepper,134 Tex. 360, 135 S.W.2d 79; Rule 279, Texas Civil Procedure. So, because railroad companies are not charged with the duty to provide a flagman or a mechanical warning device at every crossing. Such extraordinary means of safety are required only at particular crossings which are shown to be more than ordinarily dangerous, one attended with unusual or extra hazards, "a place so peculiarly dangerous that prudent persons cannot use the same with safety, unless extraordinary means are used to protect such place." Missouri, K. T. Ry. of Tex. v. Long, Tex.Com.App., 299 S.W. 854, 855; Tisdale v. Panhandle S. F. Ry. Co., Tex.Com.App., 228 S.W. 133, 135, 16 A.L.R. 1264. "Whether or not any given state of facts describing the surroundings of any particular crossing are such as mark such crossings as one attended with unusual danger or extraordinary hazards is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds." Tisdale v. Panhandle S. F. Ry. Co., supra.

The alleged fact that it was an extrahazardous crossing being an ultimate or primary fact upon which the legal effect of the facts sought to be established by the requested issues is dependent, and it being a jury question not submitted or requested, we do not believe that reversible error is shown in refusal to submit the requested issues. The assignment is overruled.

Appellants' seventh point complains of the action of the trial court in refusing their requested special issue inquiring whether the employees in charge of the train in question failed to keep a proper lookout for persons about to use the crossing, and the accompanying issues as to negligence and proximate cause. The testimony in substance shows that the truck traveled at a speed of approximately 35 miles per hour from the gravel pit west to the approach of the crossing, where it stopped or nearly so, shifted into the lowest gear and was proceeding over the crossing at about three or four miles per hour, and that the front wheels had passed over the north rail when the truck was hit near the rear end by the train traveling west. The engineer and fireman both testified that they were sitting in their respective seats in the cab, the engineer on the right-hand side and the fireman on the left-hand side. The fireman testified that he saw the truck traveling in the same direction as the train; that when the truck reached the approach to the crossing, it appeared to stop and immediately started up the embankment toward the track; that the train was then about 400 feet from the crossing; that he screamed at the engineer to "big-hole" it, and that the engineer immediately applied the emergency brakes. The engineer testified to the effect that upon the fireman's signal he immediately applied the emergency brakes and used all other means of stopping the train as quickly as possible, but that the train traveled some distance west of the crossing before it stopped; that from where he was sitting in the cab it was impossible to see the approaching truck, and that he did not see it until its front wheels passed over the north rail.

The testimony, the substance of which is stated above, does not raise an inference that the operators of the train failed to keep a proper lookout. It shows that the fireman did in fact see the truck some distance before it reached the approach to the crossing and that he was observing its movements at the time it stopped in making the turn to go over the crossing. Clearly the accident was not caused by failure of the operators of the train to keep a proper lookout. St. Louis S.W. Ry. of Tex. v. Hill, Tex. Civ. App. 13 S.W.2d 420, writ refused.

Appellants have made assignments of error in addition to those we have discussed, which we have reviewed, and find that none of them present reversible error.

The judgment of the trial court will be affirmed.