Southern Pacific Company v. Castro

WALKER, Justice

(concurring).

While I concur in the judgment of reversal and remand, I am concerned about the “uniform” rules laid down by the Court for submitting a case in which the evidence will support the conclusion, but does not conclusively establish, that there was a legal excuse for an alleged statutory violation that would ordinarily constitute negligence per se. I have no quarrel with the holding that “the burden of persuasion on the excuse contention” is on the party who asserts that his adversary has been guilty of negligence per se in violating the statute. This is not, however, the “basic problem” in the submission of the case. The truly basic problem is whether the party having that burden may discharge the same by obtaining an affirmative answer to an inquiry that requires the jury to consider and decide the excuse issue, or whether we are to hold, as the Court apparently does, that the burden of negating excuse can never be discharged except by convincing the jury that the violator was guilty of negli *499 gence by the common law standard. I do not agree with this holding, because it means that a case such as the present one, which involves an alleged violation of Art. 6701d, § 86, must be submitted in an unnecessarily complicated manner that is confusing to the jury and unfair to the parties.

There is much to be said for the method of submission approved in Hammer v. Dallas Transit Company, Tex.Sup., 400 S.W.2d 885 , and Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892 (wr. ref. n. r. e.), and it can properly be used in most cases. In my opinion it should be used whenever the statutory standards will probably be recognized and applied by a jury of laymen in determining the care that should be exercised by a person of ordinary prudence under the same or similar circumstances. For example, the motorist in Phoenix had violated the statute that forbids driving on the left side of the highway. This was also true in Hammer . The truck driver in Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722 (no writ), operated his vehicle after dark without lights.

The average layman recognizes that ordinarily it is both unlawful and imprudent to drive on the left side of the highway or to operate a motor vehicle on the highway after dark without lights. In each of the cases cited, therefore, it was reasonable to assume that the jurors would find the violator guilty of negligence unless they concluded that the violation was caused by a blowout, a sudden and unexpected failure of the lights, or some other excuse raised by the evidence. A finding of negligence would clearly mean that the jury had rejected the evidence of excuse relied upon by the violator. More importantly, a negative answer to the negligence issue could fairly be taken to mean that the jurors had concluded that there was justification or excuse for the violation. When that is so, the rights of the parties may properly be made to turn on the answer to an issue inquiring whether the violation constituted negligence by the common law standard.

This is not so, however, in the present case. Here we are dealing with statutory standards of conduct that are wholly arbitrary, and strict observance of all these standards in their every detail would not ordinarily be regarded as essential to an exercise of reasonable care. Under the provisions of Art. 6701d, § 86, the motorist is required to stop his vehicle “within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad” in any of the situations described in the statute. And yet a jury of laymen might well conclude that it is not imprudent or unreasonable for a motorist to stop his vehicle five or ten feet or even 65 feet from the nearest rail, and the jury could, for that reason alone, decide that a violation of the statute was not negligence under the common law standard.

When the statutory standards are not generally recognized and accepted in determining the care to be expected of a person of ordinary prudence, a question of excuse raised but not conclusively established by the evidence cannot fairly be resolved by the jury’s answer to an issue inquiring whether the violator was guilty of negligence under the common law standard. There would be no problem, of course, if the negligence issue were answered in the affirmative. A finding that a motorist was negligent in failing to stop his vehicle within 50 feet but not less.than 15 feet from the nearest rail can fairly be taken to mean that the evidence of excuse was not accepted by the jury. The problem is that a negative answer will not necessarily mean that the jury remains unpersuaded as to the absence of an excuse that is: (1) raised by the evidence, and (2) falls within the classes of excuses that are permissible under our opinion in Impson v. Structural Metals, Inc., Tex.Sup. 487 S.W.2d 694 .

This problem will not be solved and may even be magnified by attempting to instruct the jury concerning the provisions of Art. 6701d, § 86, and excuses raised by the evidence that qualify under Impson . At best the instructions will simply enable the *500 jurors to consider the statute along with other evidence in determining whether the violator exercised ordinary care under the circumstances. At worst the instructions will confuse the jurors as to the real issues in the case and cause them to shape their answers to avoid finding anyone guilty of violating a criminal statute.

A negative answer to an issue inquiring whether the alleged violator was guilty of negligence by the common law standard may well mean simply that the jurors concluded: (1) that Art. 6701d, § 86 is wholly unreasonable ; or (2) that, regardless of the statute, the exercise of ordinary care does not require a motorist to stop precisely within the limits of the area there prescribed; or (3) that the alleged violation was excused by some fact or circumstance that does not qualify under Impson or that is not even raised by the evidence; or (4) that the motorist should not be found guilty of violating a penal statute. It is for this reason the question of excuse cannot fairly be resolved by the jury’s answer to an issue inquiring whether the motorist was negligent by the common law standard.

The parties to any case are entitled to a submission that will enable the jury to consider and decide the controlling issues of fact. In Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69 , 291 S.W.2d 931 , it was held that whether a train was “plainly visible” and “in hazardous proximity” is to be determined from the standpoint of a person of ordinary prudence in the position of the motorist. We also held that an unexcused violation of the statute constitutes negligence per se. So long as the latter holding stands, and it is not openly questioned by the majority in the present case, the narrow issue of excuse will be of controlling importance when raised by the evidence. And yet under the method of submission now approved and required by the Court for railroad crossing collision cases, the party relying upon the statutory violation is denied a fair opportunity to have the jury consider and decide the excuse issue.

The only reason offered by the Court for today’s decision is the importance of having uniform rules that can be applied in all cases where the evidence raises an issue of excuse. This reason is itself the source of some confusion to me. If the Court does mean that the rules announced today are to be uniformly applied in all cases, it seems to me that the submission of an ordinary automobile collision case will be unnecessarily complicated by the requirement that the jury be instructed concerning the provisions of the statute alleged to have been violated and the excuse raised by the evidence. If the Court does not mean for the rules to be uniformly applied, I suggest that the members of the bench and bar who “are experiencing difficulty in distinguishing between excuses and statutes which should be governed by Christy [v. Blades, Tex.Sup., 448 S.W.2d 107 ] on the one hand and by Hammer and Phoenix on the other” will now experience similar difficulty in distinguishing between statutes which should be governed by Hammer and Phoenix on the one hand and by the present case on the other.

It should be noted that the Court does not state or even suggest that the Hammer and Phoenix method of submission will be fair to both parties in cases involving a violation of Art. 6701d, § 86. This is understandable. The net result of requiring that the present case be submitted in the Hammer and Phoenix manner is that anything more than a scintilla of evidence of excuse, no matter how flimsy and incredible the evidence may be, will somehow nullify our holding in McFerrin and make the statutory violation only evidence to be considered by the jury in resolving the issue of negligence by the common law standard. If that is the effect intended by the Court, it is my opinion that our basic rules concerning negligence as a matter of law should be revised accordingly.

It is impossible, of course, to reconcile the majority holding with our decision in Impson . It was there held that excuse for the violation of legislative standards of *501 conduct cannot be established by mere proof that the violator acted reasonably, or exercised ordinary care, under the circumstances. The truck driver had attempted to pass an automobile by driving on the left side of the highway within 100 feet of an intersection in violation of Art. 6701d, § 57, Vernon’s Ann.Tex.St. The jury might reasonably have concluded from the evidence that this conduct was reasonable under the circumstances. The driver had forgotten about the intersection. It was night, and the intersection was obscured by trees and houses. The sign warning of the intersection was small, and there was no dashed or solid line on the pavement to indicate a no-passing zone. We held, however, that an issue of excuse had not been raised, because there was no evidence of any legally acceptable “excuse or justification” similar to those mentioned in the Restatement of Torts, Second, § 288 A. In support of this holding, we cited the writings of Dean Page Keeton and Harper & James, and particularly their argument that to permit the exoneration from a statutory violation by mere proof of ordinary care is, in effect, to commit us to a simple common law negligence standard and authorize the jury to dispense with reasonable statutory requirements in every case no matter how flimsy the excuse.

Under our holding in Impson , an issue of excuse can be raised only by evidence of one of the excuses mentioned in the Restatement or something similar thereto. Under the holding in the present case, when some evidence of an Impson-type excuse is introduced, the holding in Impson goes out the window and the violator will be excused if he acted reasonably under the circumstances. The Court is thus saying : (1) that the violator will be held guilty of negligence as a matter of law unless he is able to produce some evidence of an Imp-son-type excuse; and (2) that once some (more than a scintilla of) evidence of an Impson-type excuse is introduced, Impson has no further application and the violation will be excused if the conduct was reasonable under the circumstances.

It seems quite anomalous to me that one person who violates a particular statute should be held guilty of negligence per se while another person who violates the same statute will have his conduct judged by the common law standard merely because there is “some evidence” of excuse.

There is a question in my mind as to whether the Court really means that when some evidence of an Impson-type excuse is introduced, the party relying on the violation “must then request and obtain a finding” that the violator was negligent by the common law or reasonable man standard. Is any other form of submission improper even though it fairly elicits findings on the issues raised by the evidence ? A trial court might grant a request by the party relying on the violation for submission of issues dealing specifically with the alleged violation and the excuse raised by the evidence. This could be done because the judge concluded that the party was entitled to submission of the requested issues or that they should be submitted to obtain a clarification of the holding in the present case.

Let us suppose a case similar to this one in which the only excuse raised by the evidence is impossibility of compliance. If specific inquiries concerning the violation and the excuse are submitted, the case may reach us with jury findings that the driver of the automobile was guilty of a statutory violation when it was possible for him to stop as required by the statute. We will thus have jury findings of an unexcused statutory violation and the majority opinion tells us that this is negligence per se. Will the Court nevertheless hold that negligence on the part of the driver has not been established since there is no finding that he was negligent by the common law standard? I doubt it unless we abandon the negligence per se rule entirely. The trial court might submit, in addition to the specific issues mentioned above, an issue inquiring whether the driver was negligent under the common law standard and with the burden of proof on the railroad. If *502 that issue were answered by the jury in the negative, will the specific findings of an unexcused violation override, yield to, or conflict with the jury’s refusal to find from a preponderance of the evidence that the violator was negligent by the common law standard? I do not know.

In the past year or so we have attempted, with some success I trust, to simplify the submission of cases to the jury. See Adam Dante Corp. v. Sharpe, Tex.Sup., 483 S.W.2d 452 ; Yarborough v. Berner, Tex.Sup., 467 S.W.2d 188 . These decisions make it even more difficult for me to understand the holding in the present case. The alternatives open to us and the choice that should be made seem quite clear. The Court chooses to complicate the charge and confuse the jury with the provisions of a statute that is understood by few lawyers or judges and with instructions concerning excuse for violating the statute. Instead of including these statutory provisions and instructions in the charge, I would require the jury to consider and decide the excuse question by submitting a fairly simple issue. For example, impossibility of compliance, if raised by the evidence, could be submitted as follows:

Do you find from a preponderance of the evidence that after the train became plainly visible and in hazardous proximity to the crossing, if it did, the plaintiff by the exercise of ordinary care could have stopped his automobile within fifty feet but not less than fifteen feet from the nearest rail of the railroad track ?

I can think of no rational basis for requiring that the Hammer and Phoenix method of submission, as now modified by the Court, be used in a case involving an alleged violation of Art. 6701d, § 86. It complicates and lengthens the charge, tends to confuse the jury, and deprives the parties of a fair submission of a controlling and ultimate issue. If we must have uniformity at all costs, I would opt for the submission of a separate issue or issues that enable and require the jury to consider and decide whether the statutory violation was unexcused. This method of submission, which was held in Christy to be essential in cases involving a violation of Art. 6701d, § 86, is fair to both parties and is considerably less cumbersome than the modified Hammer and Phoenix method now adopted by the Court.

STEAKLEY, J., joins in this concurring opinion.