This is an action for damages growing out of a truck-train collision in which the truck driver, Arthur Castro, was killed. Plaintiffs are the surviving wife and minor children of the deceased. Trial was by jury and plaintiffs recovered judgment upon the verdict. The parties will be referred to here as they were in the trial court. *Page 579
The jury made these findings:
Issue 7. That the crossing in question was extrahazardous.
Issue 8. That the failure of the defendant to have an automatic flashing signal in operation was negligence.
Issue 9. That such failure was a proximate cause of this occurrence.
Issue 10. That the train was being operated at a speed in excess of twelve miles per hour.
Issue 11. That such operation was a proximate cause of this occurrence.
Issue 12. That the train was being operated at a speed in excess of twenty-five miles per hour.
Issue 13. That such operation was a proximate cause of this occurrence.
Issue 14. That after the train became plainly visible and in hazardous proximity to the crossing, Arthur Castro could not by the exercise of ordinary care have stopped his vehicle within fifty feet, but not less than fifteen feet, from the nearest rail of the mainline track.
Issue 15. That such inability to stop was not caused by his negligence.
Issue 22. That when the engine of the train was within approximately 1500 feet of the crossing it emitted a signal audible from that distance.
Issue 23. That the train was plainly visible before Arthur Castro reached a point fifteen feet from the nearest rail of the mainline track on which the train was approaching.
Issue 24. That the train was within hazardous proximity to the crossing before Arthur Castro reached a point fifteen feet from the nearest rail of the mainline track on which the train was approaching.
Issue 25. That the failure of Arthur Castro to stop his vehicle within fifty feet, but not less than fifteen feet, from the nearest rail of the mainline track was a proximate cause of this collision.
Issue 26. That this accident was not an unavoidable accident.
The jury failed to make the following findings:
Issue 1. That the train crew failed to keep a proper lookout.
Issue 3. That the engine crew failed to sound a whistle at least 1320 feet from the crossing as the train was approaching.
Issue 5. That the engine crew failed to ring the bell on the engine continuously from a distance of at least 1320 feet from the crossing until after the engine had crossed over the public road.
Issue 16. That Arthur Castro failed to keep a proper lookout.
Issue 18. That Arthur Castro was negligent in stopping the truck between the rails of the track.
Issue 20. That Arthur Castro was driving the truck at a greater rate of speed than a person using ordinary care would have driven it.
The real controversy in this case on appeal centers around the jury findings in Issues 22, 23, 24 and 25, and the findings in Issues 14 and 15. Article 6701d, § 86, Vernon's Ann.Civ.St., reads, in part, as follows:
*Page 580"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:
"(c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or
nearness to such crossing is an immediate hazard;"(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.'
Defendant contends it is entitled to judgment because the jury findings in Issues 22, 23, 24 and 25 established negligence per se on the part of Arthur Castro which proximately caused this collision. Plaintiffs answer that such negligence was excused by jury findings to Issues 14 and 15, and, therefore, plaintiffs were entitled to the judgment entered. Defendant replies that Issues 14 and 15 do no more than excuse Arthur Castro under § 86(d), and it was still entitled to judgment because of the negligence per se found under § 86(c).
Issue 24 was conditioned upon an affirmative answer to either Issue 22 or 23, and Issue 25 was conditioned upon an affirmative answer to Issue 24. We reproduce Issues 14 and 15 here so the problem may be more easily understood:
'ISSUE NO. 14 Do you find from a preponderance of the evidence that after the train became plainly visible and in hazardous proximity to the crossing, ARTHUR CASTRO could not by the exercise of ordinary care have stopped his vehicle within fifty feet but not less than fifteen feet from the nearest rail of the mainline track.
'A train is 'plainly visible' if a driver, situated as was ARTHUR CASTRO and using ordinary care for his own safety would have seen it.
'A train is 'in hazardous proximity to the crossing' if the speed or nearness of the train is such that a driver, situated as was ARTHUR CASTRO and using ordinary care for his own safety, would reasonably conclude that he cannot pass over the crossing without danger of collision.
'Answer: 'We do' or 'We do not.'
'Answer: We do
'If you have answered Issue No. 14 'We do' then answer Issue No. 15; otherwise do not answer Issue No. 15.
'ISSUE NO. 15 Do you find from a preponderance of the evidence that the inability of ARTHUR CASTRO to stop, if any, was not caused by his own negligence.
'Answer: 'We do' or 'We do not.'
'Answer: We do
The law is generally accepted not in Texas to be, under the negligence per se doctrine, once it is established that a party did violate a traffic statute, then the burden shifts to the offender to come forward with some evidence of 'excuse' — and the validity of the excuse depends upon the absence of common law fault. Thus, in this case, when defendant established the violations of § 86(c) and (d) by Arthur Castro, as was done by the jury answers to Issues 22, 23, and 24, the burden was then upon plaintiffs to establish the absence of negligence as an excuse for such traffic violations. See 44 Tex. Law Rev. 1, 19.
Further statements as to the law controlling this case appear in Christy v. Blades, 448 S.W.2d 107, 111 (Tex.Sup. 1969):
'(I)t is settled in Texas that an unexcused violation of Article 6701d, § 86(d), constitutes negligence as a matter of law.'
and,
'It is also our opinion that when impossibility of compliance is raised but not conclusively shown by the evidence, the motorist must request the submission of proper excuse issues before he will be heard to complain of their omission from the charge.'
Chief Justice Calvert in his article in 34 Tex. Law Rev. 971, 977 entitled 'Special Issues Under Article 6701d, Section 86(d), of the Texas Civil Statutes', has written:
*Page 581'It is very generally held that violation of a statute is excusable, and therefore
is not negligence, if the violation is one that a reasonably prudent person would have committed under the same or similar circumstances . . . .'
The opinion in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 936 (1956), makes it clear that the reasonably prudent man test is applicable to the present situation. It is there written:
'Accordingly, we apply the objective common-law test of the reasonably prudent man and hold that before it can be said in a given case that an approaching train was 'plainly visible' as a matter of law, it must appear, as a matter of law, that a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it. We further hold that it will not be said that a train was 'in hazardous proximity' to a crossing, as a matter of law, unless under all the attendant facts and circumstances it can be said, as a matter of law, that by reason of the speed and nearness of the train a reasonably prudent person should have known that an attempt to proceed over the crossing ahead of the train, was hazardous.'
That court at page 940 applied such doctrine in this manner:
'We hold, as a matter of law, under the facts and circumstances of this case, that a reasonably prudent person, situated as was the deceased, should have known that an attempt to proceed over the crossing ahead of the train, was hazardous. We accordingly hold, as a matter of law, that at the time the train became 'plainly visible' it was 'in hazardous proximity' to the crossing.'
In view of the jury findings in Issues 22, 23, 24 and 25, plaintiffs had the burden of securing jury findings of excuse as to both § 86(c) and (d). It is also clear under the case law in this state, that § 86(c) and (d) are separate and distinct defenses. Texas Pacific Railway Company v. Davis, 374 S.W.2d 305 (Tex.Civ.App., El Paso, 1963, writ ref., n.r.e.) and cases there cited. So the paramount question, at this point, is to determine whether or not the answers to Issue 14 and 15 constitute excuses for the negligence per se found under both § 86(c) and (d).
Issue 14 is the key issue. It contains the two elements 'plainly visible' and 'hazardous proximity' in the conjunctive state. The inquiry is whether or not after the train became plainly visible and in hazardous proximity to the crossing Arthur Castro could not by the exercise of ordinary care have stopped his vehicle within the specified distances. Defendant emphasizes the fact that this jury was not asked whether or not, after an audible signal and in hazardous proximity to the crossing, Arthur Castro could not by the exercise of ordinary care have stopped his vehicle within the specified distances.
If the Supreme Court of Texas had not applied the 'reasonably prudent man' test to the determination of 'hazardous proximity', our problem would be simple. In each case in which a train and vehicle collide, it would be established as a matter of law, that the train was in hazardous proximity. But, such is not the case, and the test is that the driver of the vehicle, acting as a reasonably prudent man, must consider the Speed and the nearness of the train in concluding whether or not he could pass over the crossing without danger of collision. In Missouri Pacific Railroad Company v. Rose,385 S.W.2d 492, 501 (Tex.Civ.App., Houston, 1964, writ ref., n.r.e.) this statement is made:
*Page 582'The Supreme Court in the case of Missouri-Kansas-Texas R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, had occasion to review the meaning of Article 6701d, Sec. 86. The effect, we think, of that decision was to hold that the duty to stop an automobile within the given range arose only if the conditions prescribed by a given subdivision existed. However, in determining whether or not
the particular facts existed upon which the duty to stop arose, the common law standard of the reasonable, prudent person was applied. Under Subd. (c) the mere fact that the train was emitting an audible signal and was within 1500 feet of the crossing does not give rise to a duty to stop. The duty to stop arises only if, considering the speed of the engine or its (the engine's) nearness to the crossing, it is an immediate hazard. It will be noted Subd. (c) refers to the position of the engine. In determining whether because of its speed or nearness to the crossing it is an immediate hazard we apply the common law test. The question is whether a reasonably prudent person in the exercise of ordinary care under all existing surrounding facts would conclude the engine, or train if a part of the train be between the engine and the crossing, could be seen, was an immediate hazard.'
We have not been cited, nor have we found a case in Texas similar to the one before us here. That is, one in which there are jury findings of contributory negligence under both § 86(c) and (d), and a jury finding of 'excuse'. In its brief, defendant makes this argument: 'Speed or nearness can be determined from the whistle, bell, engine noise, visibility, or any number of other elements.' But it is not made clear how this can be done. Regardless of how loud a signal from the train might be, it is not demonstrated how a motorist could determine from the sound how fast a train was traveling, if moving at all. The motorist is required to stop only if the train is Approaching and its Nearness and Speed make it an Immediate hazard.
Defendant suggests the plaintiff could have submitted the 'excuse' issue under § 86(c) in the following manner:
'Do you find from a preponderance of the evidence that after the engine of the train emitted a signal within approximately 1500 feet of the crossing in question which was audible from that distance and the train was in hazardous proximity to the crossing, Arthur Castro could not, by the exercise of ordinary care have stopped his vehicle within fifty (50) feet, but not less than fifteen (15) feet from the nearest rail of the mainline track?'A train is 'in hazardous proximity to the crossing', if the speed or nearness of the train is such that a driver, situated as was Arthur Castro, and using ordinary care for his own safety would reasonably conclude that he cannot pass over the crossing without danger of collision.'
However, it is noted the term 'hazardous proximity' is used in this suggested issue with the definition including the words 'speed' and 'nearness.' The same perplexing problem still exists. Could the jury have made a determination of that issue without taking into consideration the 'visibility' of the train?
We have come to the conclusion that it is not possible to submit an 'excuse' issue to the jury without including the element of 'visibility' because of the definition of 'hazardous proximity' as given to us by the Supreme Court of Texas in Missouri-Kansas-Texas Railroad Co. v. McFerrin, supra. Defendant's point of error is overruled.
Defendant has a series of points of error pertaining to an ordinance of the City of Floresville controlling the speed of trains. Plaintiffs went to trial in this case upon pleadings which included this allegation:
Defendants were negligent: '(f) In operating the train in excess of the legal speed limit.'
In the opening statement to the jury, plaintiffs' attorney made the statement that he intended to prove that the city ordinance of Floresville limits the speed of trains to twelve miles per hour. During the course of the trial, plaintiffs offered such city ordinance in evidence and defendant objected on the ground that there were no pleadings. The trial court granted *Page 583 plaintiffs leave to file a trial amendment in which it was alleged in separate paragraphs that defendant was negligent in operating the train in excess of twelve miles per hour in violation of the Floresville city ordinance limiting the speed to twelve miles per hour and in operating the train in excess of twenty-five miles per hour in violation of such city ordinance limiting the speed to twenty-five miles per hour. Defendant excepted to the action of the trial court on the ground that it came as a surprise.
We have concluded the trial court did not abuse its discretion in permitting the trial amendment. In view of the original pleadings quoted above, defendant was put on notice that plaintiff intended to rely upon the violation of the legal speed limit by defendant as a ground for recovery. The defendant has failed to demonstrate here, as he failed to demonstrate in the trial court, that the allowance of such amendment prejudiced it in maintaining its defense upon the merits. Rule 66. Missouri-Kansas-Texas R. Co. of Texas v. Waddles, 203 S.W.2d 350 (Tex.Civ.App., Amarillo, 1947, no writ) and cases cited. Proof of the ordinance was made under the 'ancient document' rule and such ordinance was properly admitted by the court. These points of error are overruled.
Defendant pled both common law and statutory negligence on the part of Arthur Castro as to the speed at which he was driving the truck. The trial court submitted common law negligence which the jury answered favorably to plaintiff. The court refused two proffered series of issues based upon violations of sub-sections (b) and (c) of § 166, Article 6701d, V.A.C.S. We do not quote the requested issues as it is sufficient to say neither series included an issue inquiring whether the violation was negligence. We think the law is clear that under the circumstances of this case, such negligence issues was a necessary part of the series and the court properly refused to submit such issues. See the opinion written by Justice Keith in Davis v. Gatlin, 462 S.W.2d 54, 57 (Tex.Civ.App., Beaumont, 1970, error ref., n.r.e.).
Defendant next attacks the finding by the jury that the crossing in question was extra-hazardous. We pass upon the 'no evidence' point by considering only the favorable evidence to such finding and the 'insufficiency' and 'contrary to the great weight' points by considering the entire record. No complaint is made about the definition given with this issue.
We must view the situation as it existed on the night of the collision in order to determine whether or not this crossing was extra-hazardous. This law was restated by the Supreme Court in Fort Worth Denver Railway Company v. Williams, 375 S.W.2d 279 (Tex.Sup. 1964). A railroad crossing may present no undue danger at one time, while at another it may be extra-hazardous. The degree of danger involved depends on the circumstances existing at the time of the accident. This Williams Case, supra, quotes Tisdale v. Panhandle S.F. Ry. Co., 228 S.W. 133, 136, 16 A.L.R. 1264 (Tex.Com.App. 1921), as follows:
'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.'
The evidence shows many elements which would affect the visibility at this crossing the night of the collision: The curve in the track coupled with the absence of an oscillating light on the engine; The rise in the grade at the crossing; The presence of trees and peanut trailers; The growth of weeds and grass; the large tanks, the small tanks, and a small house. These points of error are overruled.
The jury awarded $100,000.00 in damages to the surviving wife and $30,000.00 *Page 584 each to the four children whose ages were 10 years and 9 months; 9 years; 7 years and 10 months; and 7 years. Defendant contends that each of these awards is excessive. The evidence shows that Arthur Castro was 33 years old at the time of his death and had a life expectancy of 37.7 years. His wife was 31 years old at the time with a life expectancy of 45.7 years. Castro made approximately $7,000.00 in 1967, including his regular job and his extra job driving a truck for his brother on Saturdays. We think the evidence shows Castro to have been a devoted husband and father, a hard worker, and to be in good health. The amounts of these awards do not shock our sense of justice.
We find no merit to the remaining points of error and they are overruled.
Affirmed.