Dissenting Opinion
STEPHENSON, Justice.I respectfully dissent. I do not find the answers of the jury to the discovered peril issues to be clearly wrong or manifestly unjust. I would affirm the judgment of the trial court.
There is evidence in this record supporting findings that the member of this train crew discovered the perilous position of the driver of the truck, recognized the danger in time to avoid a collision, and *708negligently failed to use the means at hand to avoid it. As they are permitted to do, this jury could accept certain portions of the testimony of a witness and reject other portions in arriving at their answers. The conductor, Johnson, testified he first saw the truck and realized there was going to be a wreck when the locomotive was about one hundred fifty feet from the crossing. When he first saw the truck, he told the engineer that it didn’t look like the truck was going to stop and the brakeman, Rhymes, said he was not going to stop. According to all of the evidence, the train was traveling about twenty miles per hour which means it was moving about thirty feet per second. That means if the train continued at the same speed, it would arrive at the crossing in five seconds. However, both Johnson and the engineer, Wallace, testified the brakes began to take effect when applied, so there was more than five seconds of time before the train reached the crossing. Murray, the retired Southern Pacific engineer, testified this train could be stopped in 112 feet while Rhymes said it could be stopped in 150 feet. It is apparent that the opinion of Murray considered reaction time because he had just been interrogated about reaction time before the question as to the distance required to bring the train to a stop. Further, later in his testimony, Murray expressed the direct opinion that taking into consideration the reaction time of both the conductor and engineer, the collision could have been avoided if the engineer had immediately turned the valve for an emergency stop. All of this testimony as to time and distances is circumstantial evidence that Johnson or Rhymes did not, in the exercise of ordinary care, warn Wallace in time or that the brakes were not applied within the time that they should have been in the exercise of ordinary care.
This is a case of split-second timing, but this is generally true in a discovered peril situation. According to the evidence, the truck was traveling from forty to fifty-five miles per hour. Johnson stated the truck was from 200 to 300 feet from the crossing when he first saw it. Other evidence is to the effect that the truck did not slow down. At forty miles per hour, the truck would travel about sixty feet per second which means it would cover 300 feet in five seconds. Even though Wallace testified the truck struck the engine at the front steps, he stated the truck got on the other side of the track by coming up over the front end of the engine. A more believable account given by Hanks, a disinterested witness called by defendant, is that the train hit the right side of the truck about the door, toward the back of the cab. He admitted that in a fraction of a second or so, if the truck had gotten there sooner or the train later, the truck would have made it. Using the mathematical formula based upon the premise that the truck was traveling at the lowest estimated speed given, forty miles per hour, the truck would have cleared the track in one-third of one second.
Even though there is evidence to the contrary, coming primarily from an expert witness called by defendant who stated in his opinion the train would take 510 feet to stop, the credibility of the witnesses was for the jury and they chose to believe otherwise. The quantum of proof required of the plaintiff in this case on the elements of discovered peril in order to be entitled to have the jury pass on them was such facts and circumstances as, taken together with all reasonable inferences therefrom, constitute some evidence of probative force as to their existence. Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962). In that case, the Supreme Court held there was no evidence to support the submission of discovered peril issues. However both the times and the distances were shorter in the Hart Case and there was no proof in the Hart Case as to the distance required for the train to be stopped.
The majority opinion also found reversible error in the trial court’s method of submitting discovered peril. Again, I respectfully dissent.
*709Since writing the opinion referred to by the majority in Texas & New Orleans Ry. Co. v. Hart, supra, I have not changed my opinion as to the vice in the method of submitting discovered peril which has the approval of our courts. It is not only impossible to know what means a member of a train crew had at hand to avoid a collision, but also which member of the crew was negligent in not using such means. The Supreme Court of this state has never made any requirement that the discovered peril issues be more specific and has given its stamp of approval to a general submission. See Ford v. Panhandle & Santa Fe Ry. Co., supra; Houston & T. C. R. Co. v. Finn, 101 Tex. 511, 109 S.W. 918 (1908).
In my opinion, reliance upon Atchison, Topeka & Santa Fe Railway Co. v. Acosta, supra, by defendant is misplaced. Acosta was not a discovered peril case and it is a well documented fact that the courts apply different sets of rules to issues submitted to the juries covering primary negligence and contributory negligence and issues covering discovered peril.