Missouri Pacific Railroad v. Thomas

Although I am not in complete accord with the single holding of the majority there was no error in the admission of testimony concerning prior accidents at the crossing in question¹ I do not address that subject in this dissent. But, cf. State v. Chavers, 454 S.W.2d 395, 398, syl. 3 (Tex. 1970); and Skillern Sons, Inc. v. Rosen, 359 S.W.2d 298, 305, syl. 9 (Tex. 1962). See also Texas Co. v. Lee, 138 Tex. 167,157 S.W.2d 628, 631, syl. 8 (1941); Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 379, syl. 3 (1959).

I am more concerned with the failure of the majority to address or even mention the first twenty-four points of error wherein the railroad contends, in every conceivable combination of presentation form, that the crossing was not an extrahazardous crossing either as a matter of fact or as a matter of law.²

There is no controversy whatsoever that the crossing was protected by automatic flashing signals and ringing bells Which were working at the time of the accident and that the plaintiffs' vehicle ran into the side of a moving car which was occupying the crossing at the time. The driver had to ignore completely six brilliant flashing red lights facing her as she approached the crossing; she also had to ignore the ringing of the bells upon the poles supporting the signals flashing in her direction. The weather was clear; there was no rain, fog, smoke, or drizzle to obstruct the driver's view of the crossing. The roadway east of the crossing was straight for at least 7/8Ths of a mile and the track crossed the roadway at right angles.

Moreover, some of the lights were up over the pavement, cantilever style, and were focused on the lanes of the highway for a distance of about 3,000 feet. Other flashing lights were on the poles and focused upon the highway so as to shine in an approaching driver's eyes. In short, as the highway engineer testified, the lights were safe when put up by the highway department.

Liability of defendant was predicated upon a series of findings which are summarized in the margin.³ The jury also found that the driver failed to keep a proper lookout, failed to make a timely application of the brakes, drove at an excessive rate of speed, and failed to heed the warning given by the operating electric railroad signal. Each act of negligence on the part of the driver was found to be a proximate cause of the collision.

The record shows that the movement in question began when the entire cut of cars was inside the DuPont plant south of the highway. The engine, coupled to twenty-one cars, pulled north and sixteen of the cars were north of the highway crossing when the engine stopped and began a southward movement. It was at this time that the collision occurred when the automobile ran into one of the cars which had been blocking the crossing for several minutes. There was no contact between the engine or the front of any of the moving cars the automobile simply ran into the side of the tank car.

I would first note that there was no duty on the part of the railroad to blow the whistle after the engine had crossed the highway. Texas N. O. R.R. v. Stratton, 74 S.W.2d 741, 744 (Tex.Civ.App. San Antonio 1934, writ ref'd); Reid v. Texas N. O. R.R., 254 S.W.2d 164, 167 (Tex.Civ.App. Galveston 1952, writ ref'd n. r. e.); Woods v. Panhandle S. F. Ry., 315 S.W.2d 953, 955 (Tex.Civ.App. Amarillo 1958, writ ref'd n. r. e.). Missouri-K-T R.R. v. Wagner, 400 S.W.2d 357, 361 (Tex.Civ.App. Waco 1966, writ ref'd n. r. e.).

It is obvious from what has been written that the railroad had taken adequate precautions to protect the crossing for all but the most heedless and reckless of drivers. Additionally, as was said in Missouri Pacific Railroad Company v. Cooper, 563 S.W.2d 233, 234-235 (Tex. 1978), "An additional warning of danger to those proceeding toward the railroad crossing was the presence of railroad cars that were already occupying the crossing and directly in front of the driver."

Moreover, even from a cursory examination of the liability findings, it is apparent that the jury accepted the testimony of the highway engineer as to the need for the improvements made After the accident. Thus, his testimony contravenes a rule now in its ninetieth year in Texas that "evidence of improvement made in the appliances and mode of operating a railroad after an accident should not be received as evidence of former negligence" since it would discourage improvements. Missouri Pac. Ry. v. Hennessey, 75 Tex. 155, 12 S.W. 608, 610 (1889); 2 C. McCormick R. Ray, Texas Law of Evidence § 1151, at 42 (2d Ed. 1956), and cases therein cited.

Since I find no probative evidence supporting the findings of liability on the part of the railroad, I dissent from an affirmation of the judgment.

¹ Some of the prior accidents were at another and nearby crossing; others were in the daytime while this one was at night; in some, the automobile was going east while this one was going west. In still others, there was a simple and unexplained accident. Cf. Missouri Pac. R.R. v. Cooper, 563 S.W.2d 233, 236 (Tex. 1978).

² While I deplore the present practice perhaps required by our present rules of a proliferation of points, the sheer number of such points does not relieve an appellate court of the duty of addressing the subject, at least generally.

³ (4, 5, 6) The engineer failed to blow the horn on the engine before starting the south movement which was negligence and a proximate cause of the collision; (7 and 7A) that "the conditions surrounding the crossing in question was (sic) such as to render that crossing more than ordinarily dangerous as a nighttime crossing at the time and place in question" and that the defendant knew or should have known that such crossing was more than ordinarily dangerous as a nighttime crossing; (8) that it was negligence for the Railroad, in addition to the flashing warning lights, not to have one or more of the following precautions taken: (a) an illuminated crossing; (b) an electrical lighted advance warning signal, and (d) flag the crossing with a fusee; and (9) the omissions inquired of in 8(a), (b), and (d) constituted a proximate cause of the collision.