Adelaido Gonzales, Jr., Plaintiffs-Appellees--Cross-Appellants. v. Missouri Pacific Railroad Company, Defendant-Appellant--Cross-AppelleeAdelaido Gonzales, Jr., Plaintiffs-Appellees--Cross-Appellants. v. Missouri Pacific Railroad Company, Defendant-Appellant--Cross-Appellee
This аppeal of a personal injury diversity suit raises two questions — first, whether the Trial Judge erred in failing to submit the issue of sole proximate cause to the jury once that issue had been fairly raised by the defendant and second, whether the plaintiff was entitled to $8,329.71 in stipulated medical expenses where the jury’s answers to special interrogatories established defendant’s liability and a lack of causal negligence on the part of plaintiff. We answer no to the first question and yes to the second.
On the 17th of June 1972, Adelaido and Mary Gonzales were married in Hearne, Texas. That evening they set off on Farm to Market Road 1644 to a dance in Cameron, Texаs. The Missouri Pacific Railroad Company operates a switching track on FM 1644 and at the time Mr. and Mrs. Gonzales arrived at the intersection of the railroad traсk and the road a switching operation was in progress. The Gonzales automobile crashed into a gondola car of the train which was blocking the crossing. Both Adelaido and Mary suffered serious injuries.
At a trial in the District Court the jury, in answer to special interrogatories submitted to it under F.R.Civ.P. 49(a), determined that (i) the crossing was extra-hazаrdous, (ii) the failure of the railroad to have a warning device at the crossing was a proximate cause of the accident, and (iii) although Adelaido was negligent in his operation of the automobile, this negligence was not a proximate cause of the collision. The jury awarded Mary $25,000.00 for past pain and suffering, $25,000.00 fоr future pain and suffering, $4,000.00 for loss of earnings in the past, and $40,000.00 for loss of future earning capacity. Adelaido was awarded nothing. 1
*632 Adelaido appeals the zerо damage award and the railroad appeals the finding of liability against it.
The railroad contends that Texas law required the submission of a special interrogаtory to the jury on the issue of sole proximate cause. Under Texas community property law, those elements of the recovery constituting community proрerty would be barred by a finding of causal negligence on the part of either of the marital couple. 2 On the other hand, if it could be shown that Adelaido’s negligence was the sole proximate cause of the accident, even that part of Mary’s recovery that was her separate property would be bаrred since on such hypothesis the railroad’s negligence would not have been a cause of the collision. Thus, the railroad’s complaint is that the denial of their request for a special interrogatory on Adelaido’s sole proximate cause destroyed any hope that it had for complete defensе to the suit.
There are at least three answers to this contention. First, it is quite clear that a finding that the crossing was extra-hazardous and that this condition was a proximаte cause of the accident completely precluded any chance of Adelaido’s negligence constituting the sole proximate cause. Solе proximate cause means exactly that— there is no other cause. Here, the jury had already found in their answer to Interrogatory No. 2 that there was at lеast one other cause. Thus the only purpose to be served by the requested issue was to cross-examine the jury to ascertain whether they really meant what they said.
The second answer is that the special interrogatories a Federal District Judge submits under F.R.Civ.P. 49(a) need not be identical to those a Texas Judge must submit under Texаs Rules Civil Procedure 277. Special interrogatories under F.R.Civ.P. 49(a) are matters of federal procedure not governed by state rules. Travelers Insurance Company v. Truitt, 5 Cir., 1960,
Third, without the necessity of charting the one time tortuous path through the tangled and thorny thicket of Texas special issue submission, it is our understanding that the recent chаnges to Tex.R.Civ.P. 277 which became effective shortly after this trial eliminate the necessity of the submission of inferential rebuttable issues like sole proximate causе. See Pope and Lowerre, Revised Rule 277 — A Better Special Verdict System for Texas, 27 Sw. L.J. 577, 590 (1973). Texas has seen the light. And the light here is Federal good sense and practice — a sort of
Erie
in reverse. See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1967,
The judgment for Mary is affirmed.
Adelaido appeals from the denial of his motion under F.R.Civ.P. 59(b) to *633 amend the judgment to include $8,329.71 in medical damages stipulated to before trial by both Mr. and Mrs. Gonzales and the railroad or in the alternative to order a new trial on the questiоn of damages. Despite the railroad’s contentions to the contrary on appeal, the clear import of the stipulation is not only that it did not dispute thаt these amounts were spent but also that the expenses were reasonable in amount and necessarily incurred.
Adelaido’s contention is that the jury award of no damages after finding no causal negligence was so inconsistent as to require the judgment to be amended or in the alternative a new trial. The Seventh Amendment mandates this Court to search for a view of the case that makes the jury’s answers consistent. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 1962,
Modified and affirmed.
Notes
. “INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that the railroad crossing in question was an extra hazardous nighttime crossing, as that term has been defined to you?
The jury will answer “It was an extra hаzardous nighttime crossing” or “It was not an extra hazardous nighttime crossing.” We the jury, answer: “It was”.
If you have answered “It was not an extra hazardous nighttime crossing,” then you need not аnswer any further interrogatory. If you have answered “It was an extra hazardous nighttime crossing”, then you will answer the following interrogatory;
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that the failure of the Railroad to have a warning devise at the crossing in question, on the occasion in question, was a proximate cause of this accident?
The jury will answer “It was” or “It was not”.
We, the jury answer: “It was”.
INTERROGATORY NO. 3: Do you find from a preponderance of the evidence that Adelaido Gonzales, Jr. was negligent in any respect?
The jury will answer “He was” or “He was not”.
We, the jury, answer: “He was".
If you have answered Interrogatory No. 3 “He was” then you will answer Interrogatory No. 4;
INTERROGATORY NO. 4: Do you find from a preponderance of the evidence that the negligence you found in Interrogatory No. 3 was a proximate сause of the collision in question?
The jury will answer: “It was” or “It was not”.
We, the jury, answer: “It was not".
INTERROGATORY NO. 5: What amount of money, if paid now in cash, do you find will compensate Adelaido Gonzales, Jr. for his injuries?
The jury will answer in dollars and cеnts. We, the jury, answer: “Zero”.
INTERROGATORY NO. 6: What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensаte Mary Gonzales for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
*632 Answer separаtely in dollars and cents, if any, with respect to each of the following elements:
a. Physical pain and mental anguish and embarrassment in the past. ANSWER: $25,000.00.
b. Physical pain аnd mental anguish which, in reasonable probability she will suffer in the future.
ANSWER: $25,000.00.
c. Loss of earnings in the past. ANSWER: $4,000.00.
d. Loss of earnings of earning capacity which, in' reasonable probability she will sustain in the future.
ANSWER: $40,000.00.
DATE: May 11, 1973.
VIOLETTE L. SOOTER, Foreman,”
* * Jfc * * *
. Mary Gonzales was awarded $50,000.00 for past and future pain and suffering (Int. No. 6a, b) and $44,000.00 for loss of earnings in the past and future (Int. No. 6 c, d). Under Graham v. Franco, Tex., 1972,