*1 DENVER RAILWAY FORT WORTH COMPANY, Petitioner, Respondents. al., B. WILLIAMS et
Mrs. O. A-9715.
No. Texas. 29, 1964.
Jan.
Rehearing Feb. Denied *2 highway
The runs west and east across the two tracks. The approached deceased juncture from driving the east in a westerly direction. crossing The is marked by signs. the standard cross-arm The high- way approaches as it the crossing from the straight. east is The terrain surrounding is level. There are no obstruc- tions to a motorist’s view. night
On the
accident,
freight
train was traveling north from Lubbock to
Childress. Behind it and traveling in the
special
same direction was a
passenger
freight
train.
stopped
The
siding
on the
allow the faster passenger
pass
train to
it.
Dean,
Nowlin,
H.
Dean &
Chas.
of coun-
freight
As the
approached
point
train
Plainview,
sel,
Law,
Tilley, Hyder
Fort
where the
diverges
west side track
from the
Worth,
petitioner.
track,
east main
got
the brakeman
down and
threw the
allowing
freight
switch
Lubbock,
Bowers,
respond-
Huff &
pass
siding.
onto the
freight
After the
ents.
completely on
siding
stopped
there-
on, the brakeman threw the switch back to
original position
NORVELL,
passenger
train
Justice.
proceeded at
speed
a slow rate of
on the
arising
death
wrongful
This
action1
main
east
track. The fireman on the
out of a railroad
collision instituted
freight
fusee,
flare,
train tossed a
a small
surviving
and children of
widow
highway
onto the
crossing,
west of the
since
Williams, deceased, against
B.
O.
Fort
freight
was blocking it. He did not
Worth & Denver
Co. Trial to a
place a
highway
fusee oil the
to the east of
plaintiffs,
resulted in
which was
the Court of
affirmed
portion
damage
re-
after
passenger
approxi-
When the
train was
covery was remitted.
1. Articles Vernon’s Ann.Tex.Stats. ordivided so as to questioned clear. leave was conduct- they public park later, respondents’ that a ed in a attorney when realized Seconds occurred, pas- they stopped City of Lubbock at about 11:30 collision had *3 night. candle-power To the senger train some two to three hundred simulate train, passenger headlight train crossing. of the the attor- passenger short of the The statutory ney placed police top candle a equipped light was a on barrel power headlight. pick-up It also a Mars then his cam- positioned carried truck. He (cid:127)oscillating (figure eight) light era one side of the barrel which to beam of the operating. attempted objects light photograph and to on the other side of He moved the beam. special issues, jury In answer to the parallel in his camera a line to the barrel hazard- found that the was extra beam, light’s increasing the distance from immediately Being ous before the collision. light, the beam. barrel source of the —the hazardous, upon the it was incumbent extra exposing He started film at about 200 safety meas- railway company to take extra light feet from the barrel and finished the crossing. protect ures those using to film at a of six hundred distance to seven company in jury The has failed found feet. He also varied distance duty following particulars: in light, camera from the beam the barrel freight place signal- train crew failed to a objects from to 250 feet. The which stopped highway man on the the train attempted photograph to were located few track; freight train the west side opposite light’s side barrel feet to place highway crew failed to on the fusee automobiles, They beam. consisted of two tracks; freight east of the train a galvanized building iron trees. some keep proper crew failed lookout re- petitioner questioned Counsel crew cut deceased and the failed to spondents’ attorney, the mo- sponsor jury fur- freight train at the again on picture, on voir dire tion ther that all of con- found these omissions un- as to the conditions cross-examination proxi- negligence. Accompanying stituted experiment conducted. der which plaintiffs’ mate issues were found in cause light power of the barrel When asked the jury further the de- favor. The found that experiment, respondents’ attor- in used freight view of the was ob- ceased’s train city ney he had told stated that been pas- light the beam of from the scured officials from whom he had borrowed senger shining between the train locomotive Peti- candle-power. that it was 1500 light train, freight deceased and but that being testimony objected to this tioner negligence not the deceased to con- objec- hearsay court and the sustained tinue to his car such beam drive into jury not to consider tion and instructed light. jury absolved deceased ob- then answer. Petitioner the witness’ contributory alleged negli- acts of other evi- jected film into to the admission of the gence. experiment had stating that dence substan- under conditions been conducted re- hold that trial court We erred existing the time tially to those similar picture film of ceiving in evidence motion This was over- objection of the collision. experiment an made demonstration was allowed to view ruled and the attorney respondents’ designed show film. light beama similar to that cast headlight cause a “cur- locomotive of an In order to render evidence light” tain or wall of the view obstruct and with experiment made out of court approaching person such beam of party ad opposing out the approximately ninety de- missible, must generally there it is held that similarity condi- grees. between be a substantial eye. experiments, complicated existing tions at the time of the occurrence litigation perhaps physiological those scientific and gives factors which rise to the may experiment time be encountered. and caution existence at the Care purposes. admitting type It must conducted for demonstration be exercised not, however, Wigmore essential evidence. Dean has dangers length of the occurrence and the discussed at some in- Houston, photographs identical. East & herent in the use of both still West Sherman, Tex.Com.App., holdings pictures settings. motion of artificial Court, approved by Wigmore (3rd Ed.) 42 S.W.2d 798- on Evidence §§ Scott, State, also, Rodgers Tex.Cr. (1931); pp. See Vol. 201-208. *4 1, 625, (1922). Evidence, An- Photographic 245 When there ex S.W. 697 624 §§ 877, dissimilarity, testimony exper notations, 913, ists an A.L.R. 83 a of 27 A.L.R. 19 1315, 361, the result A.L.R.2d iment be excluded when A.L.R. A.L.R. 78 should rather than probably confuse thereof would an area wherein jury. aid the There exists dissimilarity that Before it can be said admissibility the of
the determination of
weight and
merely
the
goes
of
proffered experiment testimony
within
rests
conditions
judge
judge.
presents
jury question,
trial
This oc
the discretion of the
hence
dissimilarity
degree
curs
between the
of
whenever the
say
some
must
able to
with
be
and the circumstanc
occurrence conditions
occur and
certainty,
will not
that confusion
experiment
or can be
ca-
es
is minor
are
of the
disclosed
such
as are
dissimilarities
explanation.
abundantly
by
readily un-
pable
made
clear
explanation
be
so as to
Ry.
Houston,
position
&
present
East West
case
derstood.
relating
Sherman, supra. Panhandle and
Fe
lights,
Santa
matters
and like
distances
entirely
Ry.
Haywood, Tex.Civ.App.,
S.
clear.
experiment
to the
are not
See, Annotation,
347,
film or camera
Apparently
exposure
W.
wr. ref.
light
Experimental
through
affected
sim
evidence as
shot
or
was made across
ilarity
dissimilarity
conditions,
bar-
origin
(the
A.L.
beam
or
with
beam
away, or
light)
R. 479.
rel
of 1300
a distance
All
approaching 1300 feet.
aat
distance
Court of
similarity
testimony
we
as to
The.
have
admissibility
opinion
of the ex
upon
and their
the film
of the
shown
scenes
periment testimony
within the
was a matter
eye
appearance
human
actual
to the
dissimi
in that the
trial court’s discretion
nonexpert
interested
statement of an
amply ex
minor and could be
larities were
about
the film looked
conditions disclosed
plained
confusing misleading
without
appeared
him
the same to
as
po
jury.
agree with this
We are unable to
the ex-
to him when
at the time
observed
ordinary photograph
sition. This is not the
As
periment
actually photographed.
picture
to delineate
case
is used
stated,
wherein
had two
locomotive
above
Diesel
physical
upon
highway,
steady light
skid marks
candlepower
lights, one a 1500
may
crossing and the like.
condition of a road
oscillating light which
and a Mars
questioned experiment
stationary
purpose
of the
than the
have cast wider beam
strong
up
was to demonstrate the effect of
light
lighted
areas on
have
could
ap
eyes
person
visibility
light
of a
beam of
increased
sides
track and
of the
ap
any,
effect,
an
proaching
despite
the beam from
if
proximately ninety degrees. The motion
stationary
total absence'
beam.
was a
There
picture
represents
accordingly
candlepower
film
bar-
showing
of a
hypothesis
eye upon
experiment.
of the human
rel
When
light
retina
used in the
appeared
or ob
that what is shown to be disclosed
candle-
that a statement as
power
film would likewise
light
scured on the camera
was based
of the barrel
hearsay,
human
tcsti-
judge
be disclosed to or obscured from the
the trial
ordered
extra hazardous at the time of the fatal
mony
jury not
and instructed the
stricken
See,
Choate v. San Antonio
collision.
it.
consider
Co.,
90 Tex.
36 S.W.
Aransas Pass
appears
petitioner
rail
It
;
(1898)
(1896),
2d wr. dis. I would affirm the of the Court As indicated, respond- heretofore it was Appeals, of Civil 925. That S.W.2d theory ents’ that the beam of cast judgment requires $6,750.00. a remittitur of lights the passenger of Diesel train’s by refusing plaintiffs locomotive had The defendant the effect of Wil- liams’ using its and fa- privilege vision and tracks thus rendered the cross- impossible plain- cilities ing extra rendered it hazardous. tiffs to the test condi- make under similar objection tions. The defendant’s to question admittedly While the is made, actually test that was based close, majority it is the view of a ground that Court, members arrived at ex- substantially under conditions as similar physical detailed consideration of the cir collision, prop- isted at the scene of collision, cumstances of erly court. overruled lights positions trains with crossing, reference to the that when the im majority that view disagree I properly is admitted evidence evi- scintilla than a more there was no disregarded, which no that remains raises dence, the result evidence of aside from the support more than a scintilla of evidence test, involved cross- that the show to ing theory that was extra danger ing unusual was one attended with immediately hazardous before the collision extraordinary hazard. legal contemplation, occurred. In a mere equated question I to whether agree scintilla that the with “no evidence” as necessarily de- support nothing will hazardous substantial than extra more See, How- conjecture. pends Ir case. surmise or facts each Joske supplement vine, ever, time, I lack will supra. However, all members of due connec- agree remanding at a later date. this order dissent that an tion, opinion holding of the Court that majority
it was the view of the there evidence, in
was no more than a scintilla of
effect, support find-
ing was extra hazardous my
came attention sometime after Tues-
day, January opinion merely
Since the states that “it is majority view of members of Court,” without stating which members agree, definitely place my-
do not I wish to
self with the view there is more than finding
scintilla support of evidence
of a hazardous There is evidence probative force the evidence without moving picture.
I would affirm judgment of the Court Appeals.
of Civil HERNANDEZ, Jr., Appellant,
Julian Texas, Appellee. STATE
No. 36182. of Criminal of Texas.
Dec. 1963.
Rehearing Denied Jan. 1964. Rehearing
Second Motion for Denied Feb.
Hill, McKeithan, Mission, King & Gerald Laredo, appellant. Weatherly, Austin, Douglas, Atty., B. Leon State’s for the State.
WOODLEY, Presiding Judge. Appellant tried indictment alleging Hig- that he made an assault Gutierrez, Jr., with intent mur- inio