Home/Court of Appeals of Texas/Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin

Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin

279 S.W.2d 410, 1955 Tex. App. LEXIS 1824
CourtCourt of Appeals of Texas
DecidedApril 27, 1955
Docket10284
StatusPublished
Cited by23 cases

This text of 279 S.W.2d 410 (Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin, 279 S.W.2d 410, 1955 Tex. App. LEXIS 1824 (Tex. Ct. App. 1955).

Opinion

HUGHES, Justice.

This suit results from a collision between a passenger train operated by appellant, Missouri-Kansas-Texas Railroad Company of Texas and a 1941 Pontiac Club Coupe automobile operated by R. T. McFerrin, deceased, which collision occurred about 2 P.M., January 31, 1953, at what is called Center Oak Crossing located about two miles north of Holland in Bell County, Texas.

The suit was brought by the widow of R. T. McFerrin, Ruth Adele McFerrin, for herself and as next friend for the eight minor children of herself and her deceased husband.

Trial was to a jury which returned a verdict in every way favorable to appellees. The jury found:

(1) The train was being operated at an excessive rate of speed, (2) the engineer failed to keep a proper lookout, (3) the train bell was not rung nor its whistle blown, (4) the railroad crossing was extra hazardous and no automatic warning signal was maintained, (5) the essentials of the doctrine of discovered peril, (6) the collision was not the result of an unavoidable accident.

The jury exonerated deceased of having been contributorily negligent including the finding that he did not fail to stop his car within 50 feet and not less than 15 feet of the nearest rail.

Damages totaling $58,750 were apportioned among appellees.

Appellant’s first point is that deceased was guilty of contributory negligence proximately causing the collision, as a matter of law, under Section 86, paragraph (d), Art. 6701d, V.A.C.S., which we quote:

“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: * * *
“(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.”

This point is overruled. Explanation of this ruling requires a recitation of the more important evidence in a manner most favorable to appellees.

Deceased was thirty-seven years old at the time of his death and was in good health. He was a fireman for the G. C. & S. F. Ry. Company but had been recently promoted to engineer. The McFerrins had lived within two miles of the Center Oak Crossing for about five years prior to Mr. McFerrin’s death and he 'was familiar with the crossing using it at least four or five times weekly.

The day of the accident was cloudy and misty. The time was. about 2 P.M., January 31, 1953.

The scene of the accident is shown by the picture inserted on the following page:

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Bluebook (online)
279 S.W.2d 410, 1955 Tex. App. LEXIS 1824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-kansas-texas-railroad-co-of-texas-v-mcferrin-texapp-1955.