St. Louis Southwestern Railway Co. v. King

817 S.W.2d 760, 1991 WL 187013
CourtCourt of Appeals of Texas
DecidedOctober 15, 1991
Docket6-91-021-CV
StatusPublished
Cited by13 cases

This text of 817 S.W.2d 760 (St. Louis Southwestern Railway Co. v. King) 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
St. Louis Southwestern Railway Co. v. King, 817 S.W.2d 760, 1991 WL 187013 (Tex. Ct. App. 1991).

Opinions

OPINION

BLEIL, Justice.

Following Lynn King’s death as a result of a collision between the pickup truck she was driving and a St. Louis Southwestern Railway Company train, Ken King, her surviving spouse, sued to recover damages against the Railway. The jury found that the Railway negligently caused Lynn King’s death, damaging Ken King, and failed to find negligence on the part of Lynn King. On appeal, the Railway does not challenge the finding that it was negligent or question the damages awarded. Rather, it concentrates on the failure of the jury to find Lynn King negligent, claiming that this failure to find is against the great weight and preponderance of the evidence. The Railway also raises an evidentiary point. We conclude that the jury’s failure to find Lynn King negligent is not against the great weight and preponderance of the evidence, find no other error, and affirm the trial court’s judgment.

About 4:30 p.m. on May 26, 1982, Lynn King drove east on Tyler Street in Gilmer. A Railway train proceeded north towards the intersection of its tracks with Tyler Street. The vehicles collided approximately corner to corner. The impact threw King from her vehicle, causing severe injuries, resulting in her death the next day.

[761]*761The railroad crossing, which is located near downtown Gilmer, was marked with cantilever lights that suspend over the road, in addition to the standard railroad crossbucks. As the primary issue on appeal is evidentiary in nature, additional evidence is discussed in our evaluation of whether the jury’s failure to find King contributorily negligent is against the overwhelming weight and preponderance of the evidence.

Mike Ashby1 and Berry Ferrill2 were the only two disinterested eyewitnesses to the accident that testified at trial.3 Ashby and Ferrill testified that they were in the car following King, that the train appeared out of nowhere, and that the view of the train tracks was obstructed by houses and tall bushes. Neither remembered seeing the warning lights flashing or hearing bells or whistles before the accident, although they recalled that all signals were operating after the accident.

Ken King testified that as he was driving home the day following the accident, the bushes and shrubs which had obscured the tracks were being cleared by Railway employees. Thomas Calhoun, an investigator for the Railway, also testified that he was at the scene of the accident the following day and that no one was clearing shrubs from the Railway’s right-of-way. However, in several photographs taken by Calhoun that day, survey stakes, a brush ax, as well as piles of freshly cut brush appear. He could not explain these items. These [762]*762photographs, when compared with those taken the day of the accident, demonstrate that brush had been cleared by the following day.

George Greene, Jr., an expert witness, testified that he had knowledge of accident situations where railroad signal lights failed to function before an accident, but were operational after the accident. He indicated that because the railroad crossing had an east-west orientation, it was possible that the afternoon sun made it impossible for King to see the warning lights and that, because of this danger, signal lights alone were never adequate at east-west railroad crossings. He stated that if the lights were not functioning or were not visible, given the obstructions such as houses and shrubs blocking the view of the tracks, by the time King could first have seen the train, it would have been impossible for her to stop in time to avoid the accident. He further testified that the twenty-one feet of skid marks indicated that she braked at the first possible moment. He added that, due to the volume of traffic at the crossing, the number of accidents in the past, and other factors, the crossing had been designated as extra-hazardous by the Highway Department; at the time of the accident, the crossing was the number one priority for upgrading in the state.

In our review of a jury’s finding or its failure to find, we may not merely substitute our judgment for that of a jury. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988). However, pursuant to Tex. Const, art. V, § 6, when called upon, we review contentions that a jury’s failure to find a fact is against the great weight and preponderance of the evidence. Cropper v. Caterpillar Traetor Co., 754 S.W.2d at 650; Traylor v. Goulding, 497 S.W.2d 944, 948 (Tex.1973). In reviewing this or any other factual sufficiency challenge, we consider all of the evidence, including evidence contrary to the jury’s verdict. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). We turn to the evidence of record to apply these established standards of review.

The Railway presented evidence that Ashby and Ferrill’s testimony at trial differed from statements they had made earlier to its investigator. It denied that it had any knowledge of brush being cleared immediately after the accident and stated that the accident scene depicted in its photographs was unchanged from the time of the accident. Additionally, members of the Railway crew testified that, from their vantage point, all signals were functioning and the horn, bell and oscillating headlight of the train were working at the time of the collision. They also testified that, as soon as they realized that King was not going to stop, they applied the emergency brakes, but were unable to stop in time to avoid the accident. While the Railway observes that the testimony regarding the train engine’s warning systems was not disputed, the credibility of those witnesses was brought into question.

When the jury is presented with conflicting evidence, it may choose to believe one witness and disbelieve others, or it may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 699 (Tex.1986). As the trier of fact, the jury is the sole judge of the credibility of witnesses and the weight to be attached to their testimony. Dalton v. George B. Hatley Co., 634 S.W.2d 374, 377 (Tex.App.-Austin 1982, no writ). Although there was evidence from which the jury could have determined that King was eontributorily negligent, there was also evidence supporting the jury’s failure to find contributory negligence and its finding that the Railway was 100 percent negligent. Considering all of the evidence, we cannot conclude that the jury’s failure to find King negligent was against the great weight and preponderance of the evidence. In light of the evidence adduced at trial, were we to so conclude, we would be erroneously substituting our judgment for that of the jury. This we decline to do.

The Railway also brings a two-pronged attack on an evidentiary ruling. It claims that the trial court erred in strik[763]

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