holding that an owner's construction of scaffolding in violation of a statute requiring 22-foot clearance was a proximate cause of an accident, notwithstanding railroad employee's alleged assurances to the owner that 16-foot, 4-inch clearance was adequate
How later courts described this case
- holding that an owner's construction of scaffolding in violation of a statute requiring 22-foot clearance was a proximate cause of an accident, notwithstanding railroad employee's alleged assurances to the owner that 16-foot, 4-inch clearance was adequate
- explaining that negligence per se arises only when "the Legislature has declared that a particular act shall not be done"
- stating that where the legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care the unexcused violation of which constitutes negligence per se
- finding of negligence per se requires showing that such negligence was proximate cause of damages
Written by the judges who cited it.
The opinion
REAVLEY, Justice,
dissenting.
The American Statesman newspaper plant and one other business site are served by Missouri Pacific train crews over this spur track. After they discussed the loading problem, the railroad’s agent assured the newspaper’s agent that any railroad car which would come down this track would clear the structure if constructed at the planned 16 feet 4 inch height. American Statesman acted upon that assurance, but Missouri Pacific came along and drove a boxcar into the structure.
The jury found that the railroad agent was negligent in assuring the newspaper’s agent that a clearance of 16 feet 4 inches would accommodate any boxcar which the railroad would be moving under the structure, and the jury found that this negligence was a proximate cause of the mishap.
The jury then found that American Statesman was contributorily negligent in constructing the structure with less than 22 feet clearance. This finding was not one of common law negligence but of unexcused violation of the statute. The jury failed to find that this negligence was a proximate cause of the mishap.
The judgment in favor of American Statesman is correct unless the record establishes the foreseeability element of proximate cause as a matter of law. To do this we must allow the jury no latitude except to say that a reasonably prudent person would have foreseen or anticipated this boxcar collision after being given assurance by the railroad agent that any boxcar that would come down the tracks would clear at this height. The jury found that the newspaper agent was reasonable in relying upon the assurance given him, and it seems to me that the jury was clearly entitled and justified to so find.
The cases cited by the majority only reveal that proximate cause may be held to be established as a matter of law — when the attending circumstances do not permit reasonable minds to differ as to the consequences of the statutory violation. That is not the case here. The newspaper agent, acting upon the assurance of the railroad agent, did not knowingly enter such a “zone of danger” as the drag racer did in Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969).
The foreman of the Missouri Pacific switching crew, which was operating the cars when the collision occurred, testified that he had observed the American Statesman structure on a prior occasion and had consulted the railroad agent to see if there would be any problem. The foreman was told that “it would clear. He said the engineer said it was all right so that’s all I had to go by.” This was sufficient for the switching crew foreman, but it is now held that it cannot be reasonably sufficient for the newspaper agent.
I read the Court here to impute foresight to the newspaper agent — and to do so because a statute has been violated. We should neither disregard the attending circumstances nor change the proximate cause rule for the case of negligence per se.
GREENHILL, C. J., joins in this dissent.