This is а wrongful death action arising from a collision between the Cooper passenger car and a Missouri Pacific freight train. Wilfred Cooper and his wife, Evina, died as a result of the accident and Sheronell, their daughter, was injured. The plaintiffs are the parents of the two decedents and the legal representatives of the two minor children. The trial court rendered judgment in favor of the minor children on a jury verdict in the amount of $71,000, and the court of civil appeals affirmed the judgment. 547 S.lY-2d 723. Missouri Pacific urges by this appeal that there is no evidence to support the jury finding that the crossing was extra hazardous, and that the trial court erred in admitting tеstimony of prior accidents and also evidence that the crossing had a local reputation for being extra hazardous. We reverse the judgments of the courts below because of the improper evidence admitted upon the trial and render judgment that plaintiffs take nothing.
The Cooper family was traveling in аn easterly direction along Farm Road 413 at about 5:00 A.M. on February 2, 1969. The road was lightly traveled. The family reached a point about nine miles east of Rosebud where they crossed the Brazos River. Without changing directions they drove about 800 feet farther east to a point where a single Missouri Pacific railroad track intеrsected the road at right angles. The Cooper vehicle ran into the side of a freight train that was crossing the road and moving to the south. The train consisted of 113 cars and a caboose and was pulled by four engines. The tracks were -the Missouri Pacific’s main line from Fort Worth to Houston. There was a light beam on the front еngine which at the time of the accident was already about three fourths of a mile south of the crossing, and there was a light on the caboose. There were no other lights between the front and back of the train. The train was moving at a speed of about forty-five miles an hour.
The Cooper automobile ran into the 110th freight car, killing Evina Cooper instantly. Wilfred Cooper died a week later without ever regaining consciousness. A two-week-old infant sustained a broken arm, and a six-year-old daughter was unharmed. Both Mr. and Mrs. Cooper were thrown out of the car, which was itself totally demolished.
The weather at the time of the collision was foggy and damp. The evidence varied as to whether it was a light fog or “a lot of fog" on the morning of the accident. The rural setting of the accident was described by the witnesses as flat for at least a mile in all directions. There were no houses or lights in the vicinity and the crossing was outside of any towns. The railroad tracks were on a level with the road. One driving from the west to the east would drive over a hill about one mile west of the crossing and would have three kinds of warning signals before reaching the crossing. A large “X” with an “R” on each side was painted on the surface of the paved two-lane highway about 400 feet west of the crossing. To the right of that painting just off the shoulder of the road was the usual yellow round metal sign that also had an “X” with an “R” on either side. Near the tracks and just off the shoulder on the right side of the road there was the familiar cross buck sign with two crossing boards erected on a white pole. The word “Railroad” was written in black on one of the boards and thе word “Crossing” was on the other. A similar sign faced the opposite direction on the other side of the tracks. An additional
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warning of danger to those proceeding toward the railroad crossing was the presence of railroad cars that were already occupying the crossing and directly in front of the driver.
Texas & N. O. R. R. Co. v. Compton,
The wаrnings signs that were located along the highway were adequate warnings for the dangers of an ordinary rural railroad crossing. Every railroad crossing is dangerous, but it is only crossings which are found to be extra hazardous that place the higher duty upon the railroad to use extraordinary means to warn travelers along the road.
Ft. Worth & Denver Ry. Co. v. Williams,
The plaintiffs obtained a favorable jury finding that the crossing was extra hazardous and conditioned upon that finding the jury additionally found that the railroad was negligent in failing tо have an automatic warning signal at the crossing. There was evidence that such a signal might consist of flashing red lights. The jury refused to find that the railroad was negligent in failing to break the train into smaller units, in failing to have lights or reflectors on the sides of the railroad cars, in failing to put out flares at the crossing, or in failing to place а flagman with a lantern at the crossing. The court charged the jury: “A railroad crossing is extra hazardous when, because of surrounding conditions, it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the usual cross arm sign.”
The central question in this appeal is whether there is any evidence which supports the jury finding that the crossing was extra hazardous, upon which finding the duty to provide the additional warning device is grounded. The plaintiffs relied upon several kinds of evidence to establish that fact: the view of the crossing was obstructed, the crossing was obscured by fog, there had been prior accidents at the crossing, and the crossing had a local reputation as an especially dangerous one. Missouri Pacific says that none of the evidence established the extra hazardous nature of the crossing.
Mr. John Pearson, a resident in the farm community, had lived in the locality all his life. He testified that a growth of trees obstruсted the view of the crossing. This is not a case of an approaching train and a car that collide at a crossing; it is that of a car running into the side of a train that had already reached and was occupying the crossing.
See Zamora v. Thompson,
The еvidence that the crossing was obscured by fog does not support the finding that the crossing was extra hazardous. There was evidence that fog was more prevalent along the Brazos River which paralleled the railroad tracks near the point of the collision. This court and many oth
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ers have rejected foggy conditions as proof of more than ordinary danger. The facts in
Texas & N. O. R. R. Co. v. Compton,
Texas & N. O. R. R. Co. v. Stratton,
The facts in
Panhandle & Santa Fe Railway Co. v. Liscomb,
Missouri-Kansas-Texas Railroad Co. v. Beasley,
The third kind of evidence upon which the plaintiffs relied was that of prior accidents. The defendant railroad objected to the admissibility of the evidence because it invaded the province of the jury and there was no proof of a predicate that there was a similarity of conditions in the former accidents and the Cooper accident. The objection also insisted upon proof that the evidence was in a “time frame . that ... is meaningful,” in other words, not too remote in time. The objection that the plaintiffs had failed to lay a proper predicate was a good one and the court erred in overruling it. The plaintiffs were required to show that the earlier accidents occurred under reasonably similar but not necessarily identical circumstances.
Karr
v.
Panhandle & Santa Fe Ry. Co.,
*237 After the railroad’s objection was overruled, the plaintiffs elicited the testimony of John Kilgore, a newspaperman from Rosebud, thаt he knew about two other accidents that had occurred at the crossing. He said that one accident involved a “Bama pie” man out of Austin; 1 the other accident concerned an elderly couple who approached the same crossing from the east. On cross-examination Mr. Kilgore said he was not able to state whether the train ran into the car or the car ran into the side of the train that was already crossing the track. He also testified that the accident happened in the daytime, but he knew nothing else about it.
Plaintiffs then offered the testimony of Mr. Pearson about prior accidents. The railroad again insisted upon the exclusion of the evidence until plaintiff proved a proper predicate, and when the trial court overruled the objection, plaintiff asked “[D]o you have knowledge of whether or not accidents had occurred there more than one time?” Pearson answered, “Yes sir, there werе other accidents there.” That is all of his testimony on the subject.
The prior “Bama pie” man’s accident happened during the daytime, and it resulted in a death. The other accident occurred when two elderly people approached the crossing from the east. There is no other evidence еxcept that which the railroad developed on cross-examination showing that the witness Kilgore knew nothing about the circumstance of the accident involving the elderly couple and only that the other accident occurred in daytime. Pearson’s one line of testimony provides no predicate for еither accident. Circumstances of neither accident were shown. We conclude that the prior accident testimony was not supported by a proper predicate that the earlier accidents occurred under similar circumstances.
Dallas Ry. & Terminal Co. v. Farnsworth,
The fourth kind of evidence upon which plaintiffs relied to prove the extra hazardous nature of the crossing was the testimony of witnesses Kilgore 2 and Pear *238 son 3 that the crossing had a reputation for being dangerous.
The railroad’s objections to witness Kil-gore’s testimony were addressed both to the evidence of prior accidents and the reputation testimony. The two kinds of testimony were both brief and intermingled. One objection was that the evidencе invades the province of the jury. That objection ordinarily means that the question calls for a conclusion or opinion about an ultimate fact about which the jury is as competent as a lay witness to determine. Norvell,
Invasion of the Province of the Jury,
31 Texas L.Rev. 731, 733-36 (1953). The objection has been held to be too broad.
Hooten
v.
Dunbar,
Certain kinds of reputation or hearsay evidence are admissible as exceptions to the hearsay rule. Reputation of old land boundaries, family pedigree, and a person’s moral character are such exceptions. 2 C. McCormick & R. Ray, Texas Law of Evidence, § 1321
et seq.
(1956). We have found no instances in which reputation has been used to prove a controlling issue in a tort case such as the extra hazardous nature of a railroad crossing. That kind of evidence was excluded in
Louisville & N. R. R. Co. v. Hall,
The courts below were in error in giving weight to the testimony about prior accidents and the crossing’s reputation and the judgments must be reversed for that reason. The reputation evidence is inadmissible and incompetent to prove extra hazard-ousness. Ordinarily the error in admitting improper evidence would call for a remand. The only error that might be corrected by a remand would be to afford witnesses Kil-gore and Pearson opportunity to testify to show the similarity of the prior accidеnts to the Cooper accident. By cross-examination Mr. Kilgore has already testified that he knows nothing that would prove the similarity of the accidents. Mr. Pearson testified only that there had been prior accidents without undertaking to give any information about them. It does not appear that a retrial would enable the plaintiffs to make any better proof of the necessary predicate.
We reverse the judgments of the courts below and render judgment that the plaintiffs take nothing.
Notes
. This is all of Mr. Kilgore’s testimony about prior accidents:
Q. . . . But do you know of an accident that happened to a man that was a pie salesman?
A. Sir, I bеlieve that was prior to this accident. That’s a long time ago, but I believe that happened to the pie man, the Bama pie man — I believe he was out of Austin — prior to this accident.
Q. Okay. Then do you know of an accident that happened to an elderly couple at this same crossing?
A. They were coming from the other direction.
Q. All right.
On cross-examination Kilgore testified:
Q. Okay. Now this collision bеtween a railroad — railroad train and the Bama truck, do you happen to know whether that collision occurred at the front of the train? That is, did the train run into the truck that was on the crossing?
A. I truthfully cannot say.
Q. All right. How about the elderly couple coming from the other way? Do you know whether—
A. No, 1 don’t know.
Q. So you don’t know whether in those cases a hundred аnd three or more cars had gone over the crossing, do you?
A. No, I can’t say that.
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Q. Okay. All right, sir. But it would be fair to say — were these other two accidents daytime accidents? The Bama truck and the other?
A. The Bama truck was, yes.
Q. All right. So, so far as you know, it wasn’t a whole lot like a car running into the one hundred and third box car of a train, was it, at night in a fog?
A. No, sir.
Q. And you just don’t know anything about the other one?
A. I don’t recall. There has bеen a lot of film rolled through my camera in that many years.
. Q. All right, sir. And I will ask you this: At the time that this accident happened, in regard to people who were in the vicinity and were acquainted with the crossing, did it have the reputation as being a dangerous crossing. I mean had there been enough accidents—
A. Definitely so, yes, sir. There is nо warning there. Yes, there is a warning there. There is a sign. The regular round railroad sign. Also on the highway surface itself there were the regular warnings — railroad crossing warnings. But prior to this, yes, sir, we considered it a dangerous crossing.
Q. All right. In other words, in the community it had that reputation, is that right?
A. Yes, sir.
. Q. Okay. I say with regard to the area in which the crossing was located, did it have a reputation as an extremely dangerous crossing?
A. Yes, sir, it did.