Ford v. Panhandle & Santa Fe Railway Co.

*551 Mr. Justice Sharp,

joined by Justice Garwood, dissenting.

The majority opinion has misapplied the doctrine of discovered peril to the facts of this case. A brief summary of the issues raised by the pleadings and the evidence introduced will be helpful in considering this case.

Petitioner sued the Panhandle & Santa Fe Railway Company for damages alleged to have been sustained by him when his automobile was struck on the right rear fender by respondent’s train on a crossing in Levelland, Texas. Petitioner alleged that “he reduced the speed of his automobile and after looking to his right and to his left and seeing no train approaching proceeded to cross defendant’s track.” Petitioner further alleged five specific grounds of primary negligence on the part of respondent.

Respondent alleged that petitioner was negligent: (1) in failing to keep a proper lookout for the train; (2) in failing to listen for the approach of the train; (3) under the facts and circumstances existing at the time, in failing to stop before driving upon the railroad track; and (4) that petitioner was negligent, as a matter of law, in that he violated and failed to comply with Subdivisions c and d of Section 86 of Article 6701d of Vernon’s Texas Civil Statutes.

Upon the conclusion of the evidence petitioner abandoned all of the grounds of primary negligence, and made the request of the trial court that the cause be submitted to the jury solely on the issue of discovered peril. Upon this issue the jury reported that it was hopelessly deadlocked, and the court upon motion of respondent withdrew the case from the jury and entered judgment for respondent, because the evidence did not raise the issue of discovered peril.

There is no contention made that the employees operating the train did not give the statutory signals for the crossing as required by Article 6371, Vernon’s Annotated Civil Statutes, and that the train was operated at an excessive and dangerous rate of speed. The essential facts are that the collision occurred about ten o’clock in the morning. The weather was clear and the visibility good, and no obstructions were near the crossing. The train, consisting of an engine and 20 cars, some loaded and some empty, approached the crossing, moving westward, at a speed of 12 or 15 miles per hour, with bell and whistle sounding, the fireman looking out the left-hand-side window and the en *552 gineer looking out the right-hand-side window. Petitioner was approaching the crossing in his automobile from the fireman’s side, and when the engine was approximately 300 feet from the crossing the fireman saw an automobile approximately 300 feet from the crossing, traveling at a speed estimated at 15 miles per hour. The view between the train and the automobile remained open and unobstructed, and the fireman watched the automobile until it passed from his view in front of the engine, immediately before the impact. The fireman thought the automobile would stop, until it reached a location “20 to 25 feet from the crossing.” The fireman thought that the automobile could still have stopped before going on the crossing, but was uncertain whether it could clear ahead of the train, and he called for the emergency brakes when he estimated the engine was “approximately 90 to 100” feet from the crossing. At that time the engineer had just turned loose the whistle cord, and the bell was continuously ringing. The engineer immediately applied the emergency brakes. The engineer testified that when he received the information from the fireman to apply the emergency brakes the train was traveling around 12 to 15 miles per hour, and was about 30 to 40 feet from the crossing; that when he received the warning from the fireman that an automobile was approaching the track, he immediately put the brakes in emergency, and that there was nothing more that could have been done to avoid the collision.

The doctrine of discovered peril is generally applied to various types of cases, such as automobile accident cases, in suits against street railway companies for negligence causing injuries to persons on the streets, and in suits against railroad companies for injuries to persons on the railroad tracks or at highway crossings. Whether or not the doctrine applies depends on the facts of each case, and it would be impossible to expect complete consistency in all the statements contained in the many cases relating to this doctrine. We are. here dealing with a collision caused by the driver of an automobile undertaking to beat an approaching train over a public highway crossing, and it would serve no useful purpose to discuss cases involving facts unlike the facts in this case.

Our courts have repeatedly held that the discovery of a person’s peril in time is one of the essential elements in the establishment of liability under the doctrine of discovered peril. In the recent case of Schumacher Co. v. Posey, 147 Texas 392 , 215 S. W. 2d 880 , the authorities bearing upon this question *553 were analyzed, and in applying the rule it was held that the doctrine of “discovered peril” or “last clear chance” means certainly that the last clear chance must be a clear one. In passing upon this question certain factors may be considered, viz., such as the rapidity of the action just before the collision, and also as to the thought, appreciation, mental direction, and lapse of sufficient time on the part of the operators of the train to act effectually upon the impulse to save another from injury. In the course of the opinion this Court said:

“As has been so frequently said, this doctrine is a humanitarian one, and evidence convicting a person of the rather grave fault of neglecting to act to avoid injuring another whom he has discovered in a position of peril must not be imputed or presumed. Parks v. Airline Motor Coaches, ( 145 Texas 44 , 193 S. W. 2d 967 ) supra. If the doctrine were raised where the events were so instantaneous and the actions of the parties so clearly impulsive and instinctive as they were here, it would be present in practically every situation where motor vehicles collide. Terry v. English, ( 130 Texas 632 , 112 S. W. 2d 446 ) supra. The doctrine must certainly not be allowed to extend that far.” (Emphasis mine.)

There is no contention made that the operators of the train were guilty of negligence in any respect, and petitioner rests his claim solely on the ground that they did not use all means at hand to prevent the collision after they had discovered petitioner’s peril. It is undisputed that if the facts do not bring this suit within the scope of the doctrine of discovered peril, petitioner has no cause of action. In this case the facts clearly show that petitioner, who lived at Levelland, was familiar with the crossing, that he drove upon it right in front of a moving train, which was within a few feet of such crossing within his plain view, and that he did this in violation of law and without regard for his welfare or safety. The train could not leave the track to avoid hitting him, and petitioner, according to his own testimony, when he realized his perilous condition, willingly took a chance to beat the train over the crossing.

Automobiles and railroads are public necessities, and rules and laws have been enacted to regulate their use. The operation of railroads is essential to the welfare of the country, and the law authorizes railroads to operate their trains in such way as to meet their duty to the public and as their necessities may require. Highways and railroad tracks frequently cross each other, and the dangers arising therefrom have become a matter *554 of grave public concern. In 1947 the Legislature enacted Article 6701d, known as the Uniform Act Regulating Traffic on Highways, which expresses the public policy of this State to prevent collisions at railroad crossings. Section 86 of that Act provides: “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.” Section 143(a) of that Act provides: “It is a misdemeanor for any person to violate any of the provisions of this Act unless such violation is by this Act or other law of this State declared to be a felony.”

Petitioner was driving his automobile in the ordinary manner as he approached the crossing. There was nothing to prevent him from seeing the approaching train. He could have stopped just before going on the track, and the train crew had a right to assume that petitioner would not violate the law by not stopping his automobile before it reached the railroad track, and that he would not negligently drive in front of the train. At the speed it was going, the automobile could have been stopped in a very few feet. Railroad trains are naturally heavy, and cannot be stopped so quickly.

The rule for allowing recovery of damages under the doctrine of discovered peril is exacting. The doctrine is not applied where the facts show that the emergency is so sudden that there is no time in which to avoid the accident. The evidence here shows that petitioner approached the railroad track from the fireman’s side, and nothing obstructed his view of the approaching train. The testimony shows that the fireman called for the engineer to apply the emergency brakes, which the engineer testified were immediately applied. The engineer had control of the brakes, and he testified that everything was done to avoid the accident. The burden was upon petitioner to prove that the operators of the train actually discovered and realized the perilous condition of petitioner in time to have avoided the collision by the use of all means at their command, consistent with their own safety and the safety of the train. The burden was upon petitioner to establish this fact. That the operators were guilty *555 of violating those humane principles will neither be imputed nor presumed, but such guilt must be proved by competent evidence. In order to sustain a recovery it must be shown that the operators actually discovered petitioner and realized his perilous condition in time to have averted the collision. Fort Worth & D. C. Ry. Co. v. Shetter, 94 Texas 199 , 59 S. W. 533 ; Schumacher Co. v. Posey, 147 Texas 392 , 215 S. W. 2d 880 ; Parks v. Airline Motor Coaches, 145 Texas 44 , 193 S. W. 2d 967 ; Texas & N. O. Railroad Co. v. Grace, 144 Texas 71 , 188 S. W. 2d 378 ; Texas & Pacific Ry. Co. v. Brown, 142 Texas 385 , 181 S. W. 2d 68 ; Texas & N. O. Ry. Co. v. Brannen, 140 Texas 52 , 166 S. W. 2d 112, 113 ; Texas & Pacific Ry. Co. v. Breadow, 90 Texas 26 , 36 S. W. 410 ; Turner v. Texas Co., 138 Texas 380 , 159 S. W. 2d 112 ; Galveston, H. & S. A. Ry. Co. v. Price, Tex. Com. App., 240 S. W. 524 ; Baker v. Shafter, Texas Com. App., 231 S. W. 349 ; Panhandle Ry. Co. v Napier, 135 Texas 314 , 143 S. W. 2d 754 ; Martin v. Texas & N. O. Ry. Co., 236 S. W. 2d 567 , writ refused.

The majority opinion questions the soundness of the rule that has prevailed in this State for many years, and particularly announced in the cases of Fort Worth & D. C. Ry. Co. v. Shetter, 94 Texas 199 , 59 S. W. 533 ; Houston & T. C. Ry. Co. v. O’Donnell, 99 Tex. 636 , 92 S. W. 409 ; Panhandle Ry. Co. v. Napier, 135 Texas 314 , 143 S. W. 2d 754 ; Parks v. Airline Motor Coaches, 145 Texas 44 , 193 S. W. 2d 967 . In the Shetter case, supra, in dealing with liability under the doctrine of discovered peril, this Court reviewed the holding in the Breadow case, and announced the following rule:

“A person walking negligently along a railroad track in front of a moving train will surely be hurt unless the train stops or he gets out of its way. In a sense he may be said to be in danger, but those controlling the train are not required to assume that, by his negligent failure to act, he will remain in danger. It is only when they have realized that he can not or will not get out of the way that the duty of averting a collision arises. Certainly it is at least equally true that trainmen are not bound to assume that a person not on the track will get on it, where it would be negligent and dangerous for him to do so, and, as they would not be bound to assume it, a jury could not properly find that they knew it would be done, in the absence of proof of knowledge.”

The language quoted above from the Shetter case was approved by this Court in the O’Donnell case, and the rule an *556 nounced by this Court in those two cases has been consistently applied since then. Many cases are cited to support the contention that the rule announced above should either be modified or repealed, and it would take too much space to review the facts and holdings in each case cited for that purpose. We will, however, briefly review the facts involved in some of the leading cases cited, in order to show that the decisions in those cases are not applicable here.

It is contended in the majority opinion that this Court in the case of Houston & T. C. R. R. Co. v. Finn, 101 Texas 511 , 109 S. W. 918 , overruled the rule announced in the Shetter and the O’Donnell cases, and followed in many cases decided since then. Now, let us look at the facts of some of the leading cases relied upon, and see if this Court intended to overrule the holding in the Shetter and O’Donnell and other cases. The essential facts involved in the Finn case are quoted from the opinion as follows:

“The plaintiff had occasion to pass between two railroad tracks of the defendant company, which was in common and general use by the public as a passway. As he entered upon the way he looked for trains, and discovered a passenger train coming out of the depot, in an opposite direction from that in which he was going, on one of the tracks; he saw no train on the other track. Seeing, as he testified, steam issuing in a considerable volume from the engine of the approaching train, in order to avoid it, he swerved from the direct course, and, approaching the other track, he was struck by a stock car, which was being propelled backwards on the other track, and was knocked down and injured.”

It was held in that case that the facts justified the submission of the issues of negligence after discovery of his peril by those operating the switch-engine. In view of the facts involved in that case, which are not similar to the fact involved in this case, the court held that the issue of discovered peril was raised. The same members of the Court who decided the Shetter and O’Dannel cases were members of the Court at the time the Finn case was decided, and there is no mention in the way of criticism or otherwise of the opinions rendered in the Shetter and O’Donnell cases.

The case of Galveston, H. & S. A. Ry. Co. v. Wagner, 298 S. W. 552 , is also cited as a ground for overruling the rule announced by this Court in the Shetter and O’Donnell cases. The *557 facts of that case disclose that Miss Wagner was postmistress at Kingsbury, and it was part of her duties to deliver and receive mail to and from the pasenger trains of the railroad at the depot. At the time she was struck by the passenger train she was hurrying to the depot to deliver the mail to an incoming passenger train. The following quotation from the opinion will show that the facts in that case are dissimilar to the facts in this case:

“At the time the fireman first saw the deceased running towards the depot, the engine drawing the train was about 140 feet west of the point where deceased was struck, and was running at a speed of about 20 or 25 miles an hour. From the time the fireman first saw the deceased running towards the depot, he continued to watch her until she ran in front of the engine.

“At no time, from the time the fireman first saw deceased, was any effort made to avert the collision by stopping the train or diminishing its speed, except that the fireman shouted ‘Stop.’ to the engineer just as the deceased was in the act of stepping upon the track immediately in front of the engine. * * * and he admits having looked at her all the time while she was running towards the track after she hád reached a point some 50 feet north of the main track; and testimony from other sources show the mail sack to have been plainly within his view. After the train whistled for the station, as had been stated, the whistle was not sounded or the bell rung at any time before the deceased was struck.

*********^<*

“It is believed that, under the facts and circumstances in evidence, it was the province of the jury to determine that the fireman, while he was looking at the deceased running at her utmost speed toward the depot, saw the mail bag in her hands; and knew that it was her duty to deliver the mail bag to the mail clerk on the train, on the south side of the track; and knew that, in an effort to perform that duty, she probably would go upon the track, as she did, and be struck by the train.”

There is nothing in that opinion that indicates that it was the purpose of the Court to overrule the holdings of this Court in the Shetter and O’Donnell and other cases.

The case of Higginbotham v. Gulf, C. & S. F. Ry. Co., Tex. Civ. App., 155 S. W. 1025 , is also relied upon. The evidence in that case shows that deceased, Higginbotham, was killed by a *558 passenger train while he was engaged in getting his horses off the railway company’s track. The evidence further discloses that those operating the engine could have seen the perilous condition of deceased at a distance of a half or three-fourths of a mile before the train hit him, and that the train was running very fast. It was further shown that none of the operators of the train testified. I quote from the opinion of the Court of Civil Appeals the following:

“The undisputed evidence shows that for a distance of one-half to three-fourths of a mile the view from the place at which the deceased was struck down the track in the direction of the approaching train was unobstructed, and assuming that the engineer and fireman were in the position where their duties required them to be, and were looking ahead as their duty required, they necessarily saw deceased upon the track and saw that he was engaged in the effort to get the horses from off the track. The evidence further shows that no warning signal of any kind was given the deceased and no effort was made to slacken the speed of the train until it was within 15 or 20 feet of him. That the train could have been stopped within 100 to 150 yards was shown by the fact that it did stop within that distance after it struck the deceased.”

Much stress is laid upon the holding of the Court of Civil Appeals in the case of International & G. N. R. Co. v. Munn, 46 Tex. Civ. App. 276 , 102 S. W. 442 . A brief statement of the facts quoted in the opinion of the Court of Civil Appeals will clearly show that the facts of that case are not similar to the facts of this case:

“The accident which resulted in the death of Madison Munn occurred on March 4, 1905. On that date he was walking in a northerly direction on defendant’s main line, a few miles north of Troupe, Tex., and was struck by one of defendant’s southbound passenger trains which was a little behind time, and was moving at the rate of about 40 miles per hour. The track was practically straight at that point, and the engine was visible to Munn, and Munn was visible to the engineer, for at least 2,000 feet. Deceased was a deaf mute, and neither saw nor heard the engine until the moment before it struck him. In failing to see the engine in time to save himself he was negligent. The engineer did not know he was a deaf mute, but actually saw him walking in the center of the track about the distance named, and continued to see him walking on the track, and apparently neither seeing nor hearing the engine until he was struck and *559 killed. When 600 or 700 feet away, the engineer began to ring the bell to attract his attention. This failing, he immediately began to sound the stock alarm. Munn nevertheless continued his course, and gave no evidence that he was aware of the approach of the train, whereupon the engineer applied the air in the emergency, but at a point so near deceased that there was no hope of saving him by that or any other means at hand. Up to the point where the air was applied in the emergency there was no attempt to slacken the speed of the train.”

The Napier case, 135 Texas 314 , 143 S. W. 2d 756 , involved a collision at a railroad crossing, and in that case this Court said:

“It has often been held that discovery of a car approaching a railroad crossing at a time when its occupant is not in danger, is within itself not sufficient to raise the issue. It is further held that the person causing the injury is not bound to anticipate negligent conduct on the part of the injured person, but has a right to rely upon the assumption that the driver of the car is in possession of his faculties and will be able to control his vehicle so as not to come into a position of peril. Ft. Worth & D. C. Railway Company v. Shetter, 94 Texas 196 , 59 S. W. 533 ; Galveston, H. & S. A. Railway Company v. Price, Texas Com. App., 240 S. W. 524 ; Texas & P. Railway Company v. Breadow, 90 Texas 26, 27 , 36 S. W. 410 ; Texas & N. O. Railway Company v. Adams, Tex. Civ. App., 27 S. W. 2d 331 ; Young v. Dallas Ry. & Terminal Co., Tex. Civ. App., 136 S. W. 2d 916 ; Texas & P. Ry. Co. v. Foster, Tex. Civ. App., 58 S. W. 2d 557 .”

The principle of the rule just stated was followed in the Grace, Parks, Brown, Brannen, Turner, and Posey cases, as well as in many other cases. No decision of this Court criticizing the holdings in the Shetter and other cases has been cited in support of the majority opinion. ,

We are not dealing here with a case where some person was stalled or standing or walking on a railroad track, or so near the track that the operators of the train could have discovered and realized his perilous condition in time to have averted the injury to him. In that type of case this Court has uniformly applied the doctrine of discovered peril. The facts of this case clearly show that it does not fall within the scope of the doctrine of discovered peril. The facts also clearly show that petitioner, in the face of Article 6701d, negligently drove his automobile onto the railroad track, in front of a moving train only *560 a few feet away, which caused the collision. The foregoing Article was enacted to prevent such collisions as the one involved here. That petitioner did not comply with its terms is undisputed. In the recent cases of Lackey v. Gulf, C. & S. F. Ry. Co., 225 S. W. 2d 630 , and Texas & N. O. Ry. Co. v. Stewart, 248 S. W. 2d 177 , writ denied NRE, Section 86 of Article 6701d was involved, and it was shown in both cases that the injured party failed to comply with the Article; and it was held, as a matter of law, that no recovery should be had. None of the cases cited by petitioner to sustain his contention involves the construction of this Article.

The doctrine of discovered peril, if applicable here, imposed the duty upon the operators of the train to prevent injury to Ford, notwithstanding his own negligence in placing himself in a position of peril, if the operators of the train realized his peril in sufficient time to prevent such injury by the use of all means at their command, consistent with the safety of themselves and of the train. The doctrine should not be applied in this case because the operators of the train did not have sufficient time, after realizing Ford’s peril, to prevent the collision. The operators of the train had a right to assume that Ford would bring his automobile to a stop when he was within 15 feet of the crossing, as he was required to do under the provisions of Section 86 of Article 6701d. When Ford reached a point approximately 15 feet from the crossing, the train was approximately 90 to 100 feet from the crossing; and when Ford continued on his course and it was apparent to the operators of the train that he was not going to stop, and they actually realized his peril, they did not have sufficient time within which to stop the train to prevent the collision.

To hold under the facts involved here that petitioner was entitled to recover damages against respondent would clearly be contrary to the provisions of Section 86 of Article 67Old, and serve to thwart the very purpose for which it was enacted. Such a holding would also be in conflict with the rule which has been consistently applied by this Court in similar cases. Not only would it nullify certain terms of public policy expressed in Article 6701d, and cause operators of trains to slow down or stop every time they saw an automobile approaching a railroad crossing in a manner similar to that described in this case, but it would also for the first time bring cases of this sort under the doctrine of discovered peril. It is quite obvious that such a holding would be most unwise and harmful.

*561 It is contended, and the majority opinion holds, that the Court of Civil Appeals erred in holding that the witness Black was not qualified to testify as an expert witness. Black’s testimony is analyzed by the Court of Civil Appeals, and he testified that the train, consisting of an engine and 20 cars, traveling at a speed of 12 to 15 miles per hour, could have been stopped within 40 or 45 feet. The fireman testified that by an emergency application of the brakes the train would have stopped in approximately 400 feet. It is undisp’uted that both the fireman and the engineer testified that the emergency brakes were applied, and that the train actually did come to a stop with only seven cars of the train past the crossing. Whether Black’s testimony as an expert was admissible may be tested by the character of the method he used to determine how fast the train was running, to wit: “I count my poles or time by the clock,” and by the further fact that he “quit his job when he was promoted to an engineer.” Unquestionably it is within the sound discretion of the trial corut to pass upon the admissibility of the testimony of a purported expert witness, and if it is admitted the trial court certainly has the authority to consider such estimony in connection with the undisputed testimony of other witnesses who were operators of the train. It is quite manifest that the trial court did not consider the evidence, considered in connection with all the facts and circumstances surrounding the collision, of such character that it would raise the issue of discovered peril. The trial judge felt it his duty to withdraw the case from the jury and render judgment for respondent. The Court of Civil Appeals sustained the holding of the trial court in rendering judgment for respondent, and also held that Black’s testimony was inadmissible.

In the Grace case, 144 Texas 71 , 188 S. W. 2d 381 , this Court, dealing with a similar question, said:

“There is no testimony in the record as to the length of time required to bring a train like the instant one to a stop after the emergency brakes are applied other than the fact that it was brought to a stop in 429 feet. Respondents tendered the testimony of an engineer who had operated a logging train for various lumber companies in East Texas in an effort to supply this fatal defect in their case, but this testimony was properly rejected upon the objection by petitioner that he was not qualified to speak as an expert on that subject. If the jury concluded that the train could have been brought to a stop within 133 feet, the distance which the deceased was ahead of the locomotive *562 when the fireman admits that he discovered him, such conclusion was based upon pure conjecture.”

Both the trial court and the Court of Civil Appeals held, as a matter of law, that under the undisputed facts petitioner was not entitled to recover damages sustained as a result of the collision. The holdings by the trial court and the Court of Civil Appeals are in harmony with the decisions of this Court, and, furthermore, it is clearly shown that the testimony of Black, if admitted, was not of such a nature that it would control the case. For that reason this Court is not justified in reversing and remanding the case.. The judgments of the trial court and Court of Civil Appeals should be affirmed.

Opinion delivered October 1, 1952.

Associate Justice Garwood joins in this dissent.

Rehearing overruled December 3, 1952.