*1 4Q1 repre question, “Do find that the of in purpose sentation was made for the al., et PACIFIC COMPANY SOUTHERN Fryer agree ducing sign guaranty Petitioners, not an ment?” That is immaterial find ing necessary of the elements of but is one Individually CASTRO, Aurora M. Jones, set fraud as in Wilson out S. minors, Sandra Cas next friend That (Tex.Com.App.1932). W.2d 572 al., Respondents. tro et opinion page at 573: states No. B-3141. general “The authorities announce the Supreme Texas. Court rule that constitute actionable fraud it Jan. 1973. appear: repre- must That (1) a material made; sentation (2) Rehearing As on Denial Modified that, false; (3) speaker when made March it, he it was false made it reck- knew lessly any without its knowledge of truth assertion; positive
and as a that he
made with the intention that it should upon by
be acted party, it; and (6) acted reliance thereby injury.
that he . suffered
Each of these elements must be estab-
lished, . . . the absence of prevent recovery.”
one of them will by Fryer support
The cases cited appeals holding
of the court of civil dealing
are those with an intent to deceive represen
which is not same thing aas purpose
tation made inducing another to act. The failure of the representation
find was made for purpose inducing Fryer sign
guaranty Fryer’s is fatal defense of issue,
fraud. No is attack made on disregard
and there was no motion it. point
There was no below evi support
dence was insufficient an
swer; and from the evidence set out
above, we find that there evidence to
support the answer. We add that there is guaranty was
no contention that the exe mistake,
cuted mutual and there was no
prayer for relat question reformation. No raised, parol rule
ing to unnecessary.
a discussion thereof is court, therefore,
judgment of trial
a correct one. ap- judgment of civil reversed,
peals judgment
trial court affirmed. *2 stopped with its front wheels fatal the time
middle of track at collision.
Judgment plaintiffs grounded for the findings the railroad cross- *3 extra-hazardous, defendant was ing was provide an auto- negligent failing oper- flashing train signal, the was matic hour, it ating in twelve miles an excess of twenty-five operating in excess of was and hour, miles an that each omission and of proximate act cause of was the occurrence. Matthews, Nowlin, Bar-& Macfarlane Soules, rett, Harper Luther H. Macfarlanе, jury obtained find- Southern Pacific also Antonio, III, Meyer, San Jr., and Ferd C. contributorily negli- ings that Castro was Botts, Houston, Murray, Baker & Clark gent in two the statu- that he violated of Floresville, petitioners. for tory 86, Article standards fixed Section 6701d, provisions Vern.Tex.Civ.Stats. Brown, Abraham, Kronzer, & Watkins of are relevant to this case section which Groce, Kronzer, Houston, Steely, W. James provide: Guess, Hebdon, Fahey Smith, & D. James Rice, Seely, Rudy Thom- Rice & Tilman R. person driv- 86. Whenever Sec. as, Antonio, respondents. San for approaches a railroad ing a vehicle
grade crossing, the driver such vehicle fifty but stop (50) within feet shall POPE, Justice. near- feet from the (15) less than fifteen widow, Castro, Arthur Castro’s railroad and shall Aurоra est rail such safely and their until so when: judgment proceed children obtained a he can do against its Company, Southern Pacific ** * (a) engineer, fireman, arising damages * * * out of Castro’s death at a railroad intersec- (b) Floresville, tion in Texas. engine approaching (c) A railroad appeals civil judgment affirmed the hundred approximately fifteen within trial question S.W.2d 577. The court. crossing highway feet (1500) presented by appeal this is whether the distance signal from emits a audible such jury support verdict will the conclusion speed its engine by reason such contributory the courts below that Castro’s crossing im- is an nearness such negligence in Ar- violating 86(c) Section hazard; mediate 6701d, Stats., ticle Vernon’s Ann.Texas Civil was excused. We that it hold was not. We plainly approaching train is An (d) judgments reverse below and remand proximity is in hazardous visible and to the cause trial court interest crossing. [Emphasis such added.] justice. ap- undisputed evidence Castro By the stop proached crossing, and failed driving
Castro was a truck de- to make less than fifteen fifty but not feet evening of beer within liveries after dark on the also rail. was feet from nearest approached of the collision. He the main approaching. engine was disputed line of the at when Southern Pacific a time contributory these The trial court submitted freight train approaching its was also them to each of negligence issues and same He was headed east intersection. answered, do.” truck “We the train was south. The headed you ISSUE 22 Do from a neg- NO. find contributorily Castro therefore preponderance ligent of the imposed evidence that when under the standard engine ap- within train was Section be- 86(c), him Article 1,500 proximately crossing undisputed feet cause it was that he failed question signal statutory zone, it emitted a which was within that, audible engine distance ? found was with- 1,500 feet of en- when the pre- ISSUE 23 Do NO. find from gine signal audible dis- emitted from that ponderance evidence that the train tаnce, (3) prox- the train was visible before ARTHUR imity, stop in (4) Castro’s failure point feet CASTRO reached fifteen proximate zone awas cause from the nearest rail of the mainline Additionally, collision. approach- track on the train contributorily found that Castro was *4 ing? gent imposed upon him the standard 86(d) (1) section undis- driver, that was “plainly A train is visible” if puted stop that he to within failed situated as was CASTRO ARTHUR statutory zone, found that and ordinary his own using and care for (2) he plainly the train was visible before safety, would have seen it. point reached a feet near- fifteen from the you If 22 have answered either Issue No. track, est rail of the mainline the train do,” 23 then answеr Issue “We No. was in proximity, and Cas- hazardous Issue do not an- 24’ otherwise No. [sic] statutory tro’s failure to within the stop swer Issue 24. No. proximate zone was a cause collision. See Missouri-Kansas-Texas Railroad Co. pre- you ISSUE 24 Do find from a NO. McFerrin, 931 291 Tex. S.W.2d ponderance the train of the evidence that (1956). was in proximity cross- hazardous to question before ARTHUR ing CAS- Thus, Southern Pacific was suc point TRO feet from reached fifteen findings cessful Cas obtaining jury that track nearest rail the mainline sec tro violated the standard of train approaching? which the section We 86(c) 86(d). as well as A “in proximity train to is hazardous observe that the trial court treated crоssing” if speed or nearness phrase in haz section “an immediate 86(c) driver, the train such that a situ- “in phrase ard” and the in section 86(d) and ated as was ARTHUR CASTRO synonymous and proximity” hazardous using ordinary safety, care for his own thus submitted We the issue once. reasonably would that he can- conclude practice. that regard proper as a pass crossing not over the without controlling problem now reach the danger of collision. this case. Plaintiffs that Castro’s you If have answered Issue 24No. “We violations of the standards stated in section do,” 25; then answer other- Issue No. and excused because 86(c) 86(d) were wise do not answer Issue No. impossible comply. him to The for requested trial submitted two you pre- ISSUE NO. 25 Do from a find issues, answered those ponderance that favorably plaintiffs’ contentions. stop failure of ARTHUR CASTRO jury answered to these issues. “We do” feet, his fifty vehicle not less within but feet, than rail fifteen from the nearest ISSUE NO. Do find from preponderance proximate the mainline track was of the evidence that after cause of question the train visible plainly the collision ? became track, crossing, highway and proximity railroad it was train not until plainly visible not ARTHUR CASTRO could A crossing. sixty-two stopped about feet from ordinary have exercise care believing evidence could conclude less his feet but not fifty vehicle within stopped his ve- rail of Castro could than fifteen feet from nearest train hicle zone after the the mainline track. plain visibility. Cas- point reached driver, “plainly A train visible” if a therefore, tro, fail- would be excused situated as was ARTHUR CASTRO ing stop the train became after using ordinary own for his care however, does not finding, visible. Such safety seen it. would have compel conclusion wholly different engine after the Castro was unable proximity A train “in hazardous signal approximate- when it was emitted a speed nearness crossing” 1,500 crossing. ly feet from driver, sit- of the train such that uated as was ARTHUR CASTRO Pa- to counter plaintiffs, Southern safety, using cаre own factor begin with the argument, cific’s reasonably he can- would conclude that 86(c) which is common sections pass dan- over without proximity.” 86(d), that of “hazardous ger of collision. phrases “im- They correctly reason that *5 you If have answered Issue No. 14 “We and 86(c) mediate used in section hazard” do”, 15; then answer Issue other- No. in 86 proximity” used section “hazardous wise, do not answer No. Issue They rely meaning. (d) have the same Rail- upon & Pacific our in Texas decision pre- ISSUE NO. 15 Do find from Snider, 380, way 321 Company 159 Tex. ponderance in- evidence that the held in we (1959), S.W.2d 280 which case ability of stop, ARTHUR CASTRO to finding on there was a conflict between if any, was not caused own that 86(c) an under section issue submitted gence. proximity and a a train was hazardous under finding on another issue submitted argues Southern it ob Pacific that haz- 86(d) section was not in that train separate findings tained that Castro was They point the fact proximity. ardous contributorily particulars. negligent in two accompanied special issue 14 the court stop He 86(c) by failing violated section term, explaining an instruction engine gave after the audible “speed proximity, terms hazardous signal, he 86(d) and also violated section and nearness” of the train to the by failing plain to stop after the train was 86(c) to which words are used in section ly 14, visible. It says special issue this, explain From “immediate hazard.” above, quoted was tied and limited to plaintiffs visibility of conclude that place time and at which train term, inseparable “haz- train is plainly finding visible and proximity.” ardous 14 Castro’s section excused violation of 86(d) only. says Southern Pacific that sec reasoning unsound. regard the as We different, imposed another, tion 86(c) sections agree that, to both We independent duty stop grounded which is haz- 86(c) is the element of 86(d), listen; approaching duty an driver’s the element proximity. Because ardous stop engine after or slow down an sub- sections, it be common to need both plain emits signal. says audible by the only once as is illustrated mitted tiffs get failed to which 24 special issue trial court’s submission negligence Castro’s 86(c). upon an conditioned affirmative which was which special issue 22 either finding on is some record There this special issue 23 86(c) or section along concerned that there were structures located 496 Peters, argu-
which 86(d). 529, (Tex. concerned section Co. 531 386 S.W.2d fact, ment fails to how- take note 1965). ever, that there is an sec- element in each judgments We reverse the below but we not common to the other. remand the cause to the trial court in the signal The audible is an element of section justice. recognize pro- interest of 86(c) рlain visibility train uncertainty trying cedural a case this is an element of 86(d). section An audible kind, clarify because efforts to the submis- signal, given statutory point along at the sion special complex within point track can occur at one along framework of section article 6701d track and the may plainly train vis- become largely proved unavailing. Some ible point at another to the intersec- closer problems in the statute are inherent view, may tion. Before a train into come Calvert, analyzed Special Issues Under whistle, may bell or horn alert one to slow 86(d), Article of the Texas Section get down and so a vehicle under control Civil 971 (1956). Texas L.Rev. Statutes that when it does later come into one view ordinary pru- mixture can injury. in time to avoid More- dent the statute man standards within over, it cannot be said that a train is problems, il- highly confusing. The proximity only if it is seen or case, com- lustrated this are further plaintiffs seemingly argue
heard as and as pounded per se the law of special may issue 14 A train assumes. against which Southern Pacific asserts proximity by in hazardous its reason of plaintiffs permissible speed or though nearness unseen or plaintiffs violation which the assert. heard; or away a train be mile emitting both an audi- visible and recently Christy v. This court wrote signal ble but still not be in hazardous Blades, (Tеx. 1969), S.W.2d Moreover, proximity. argument ig- section which we held that violator of nores the conjunction both sec- *6 “and” in 6701d, issue and request article must an speaks an 86(c) tions. Section audible jury finding obtain a he was excused that signal hazard; and immediate 86 section from the violation when excuse assert- (d) speaks plainly a train that visible comply impossibility ed is after that of and in proximity. conclude We In Ham- train became visible. that plaintiffs’ finding a failure to obtain Co., 400 885 mer v. Dallas Transit S.W.2d contributory negligence excused the a (Tex.1966), we had earlier held that special established answers of a traffic statute did not need violator 22, 24, and 25 left a verdict that Cаstro finding his ex- obtain a on claimed neg- was not excused from his contributory producing held that cuse. We ligence under section 86(c). evidence who had of excuse persuasion negligence on had
burden finding obtain a on common law agree dissenting opin with the Refining gence. See also Phoenix Co. ion of the appeals court of civil in the con Powell, (Tex.Civ.App.1952, 251 892 S.W.2d finding clusion that a of excuse under sec e.). writ ref’d n. r. tion 86(c) in deemed as found favor of the judgment though even
trial court judgment plain rendered for the regarded in We have our decision tiffs. Southern in Pacific established two as Christy exception an to the Hammer- dependеnt grounds for Castro’s contribu ap Phoenix rule as one which was tory negligence, plaintiffs plicable but the range. within a It was narrow only one of circum excuse, them. Under those limited the nature of the stances the additional cannot of impossibility, and also the nature 279, 86, deemed as Rule Texas Rules found. section article regarded which we Procedure; of Civil Glens as complete peculiar Insurance a Falls substitution of a
497
that violation of
stand-
means
that of the common
for
standard
only
per
in a civil case
ard
se
mo-
part
on the
of care
law standard
tending
estab-
in
crossing.
the absence of
a railroad
approаches
torist who
rec-
lish
which
court will
some excuse
the bench
court that
appears to this
It now
per
prove negligence
For one to
ognize.”
in dis-
difficulty
experiencing
are
and bar
se, therefore,
prove
a violation
he must
statutes
excuses and
tinguishing between
standard, (2)
is unex-
penal
which
on
by Christy
governed
should be
which
36, at
Prosser,
of Torts
on
Law
cused. W.
Phoenix
Hammer and
one hand and
;
Contributory
Prosser,
manage-
(4th
1971)
200
ed.
are
Most traffic cases
the other.
stage Negligence as a Defense
Violation
at the trial
understandable
able and
Statute,
(1948).
32 Minn.L.Rev.
rule.
to the Hammer-Phoenix
adhering
departs from
Christy
decision
Our
underlying reason for
was the
This
have
we now
result that
practice with the
Hammer
Phoenix.
rule announced
traffic
for
one
submission
method
presented
analogous
An
situation was also
a dif-
crossings and
accidents at railroad
Grieger
Vega,
in our decision
acci-
kinds of traffic
one for other
ferent
(1954),
which
Tex.
S.W.2d 85
we should
opinion
our
It is
dents.
damages
an
tort
for
for
intentional
suit
other,
and that
or the
adopt one rule
Art.
wrongful
death statute.
uniformly to cases
apply
rule should
Vega
Matilda
Vern.Tex.Civ.Stats.
for the viola-
is asserted
damages
wrongfully
Grieger
sued
for
for
concluded
penal
tion of
statutes. We
shooting
son. The statute accords
her
gov-
should
the Hammer-Phoenix rulе
right
death “is
such
when the
caused
cases
the trial of railroad
ern
carelessness,
act,
wrongful
neglect,
in other cases.
skillfulness,
The
or default
another.”
issues,
two
one
trial court submitted
prop
is that of
problem
The basic
is-
damage
which was a
issue.
other
.
erly
placing
persuasion
the burden of
inquired
sue
Fred
action of
problem
excuse contention. That
shooting
killing
the deceased
Grieger
clarified
a more
statement
accurate
wrongful.
Grieger’s
Since
defense
per
concerning negligence
the rule
se.
plaintiffs
that he had killed
action was
is well
correct rule
stated
Restatement
justifica-
son
self-defense,
which was
Torts
(Second)
(1965):
288B
shooting,
gave
the trial court
legis-
term, “wrongful.”
The unexcused
full
definition of
*7
fully
lative enactment
explained
or an administrative The
the
definition
nature
regulation
adopted
posture
charge,
which is
court
the
the
In this
self-defense.
defining
per-
as
the
Vega
standard of conduct of a
the
the
plaintiff
had
burden
man,
suading
reasonable
in itself.
fact
finder not
the
son,
did
her
but also that he
Grieger shot
It is the
penal
unexcused violation
in self-defense. The
refused
do so
standard
negligence per
which constitutes
shooting
wrongful.
the
was
find that
se. This idea is found in Missouri-Kansas-
upholding the submission of the
In
McFerrin,
Texas Railroad Co. v.
156 Tex.
plaintiff
the
placed the
on
which
burden
69,
931,
291 S.W.2d
in
state-
(1956),
939
the
self-defense,
to overcome
evidence
ment that
incorporation
of common law
Walker,
quoted
Tex.
March v.
48
court
rules “into statutory rules makes their vio- 372,
(1877):
lation,
unexcused,
se,
negligence per
.”
expressed
this,
case,
.
The idea is
every
also
But in
as in
other
it
2 F. Harper
James,
& F.
The
plaintiff
Law
on the
establish
devolved
17.6,
case, viz.,
Torts
at
negli-
“If the
(1956),
killing
wrong-
was
his
gence per
tempered by
se rule is
the doc-
If the evidence failed to
ful.
show a
.,
justifiable
trine of
killing,
violation .
.
wrongful
but whilst establishing
86,
killing, developed that was
article
the act of
tion
See Eubanks Col-
6701d.
v.
bert,
justifiable
(Tex.Civ.App.1959,
done in the
exercise of
Ross, (Tex.Civ. 371 S.W.2d 113-114 conclude that the burden App.1963,writ r. e.). ref’d n. persuasion party asserts is on who the judgments We reverse of the courts adversary negligent per his been has below cause to remand the the trial penal se his reason of violation of justice. interest of case, standard. In this in which defendant contributory asserts Southern Pacific opinion WALKER, Concurring J., in Castro, negligence per se of burden STEAKLEY, joins. J., which persuasion Southern Pacific prove penal of a such violation standard J., JOHNSON, participat- D. SAM If, as section article 6701d. ing. Walker, proof supra, case of March by Southern Pacific also some evi includes WALKER, (concurring). Justice dence that Castro’s I judgment While concur in the of re- permissible reason one ex remand, versal and concerned about I am cuses in Impson, we or if supra; discussed “uniform” rules laid down the Court plaintiffs produce some evidence of an for submitting a case in which excuse, Impson-type permissible Southern conclusion, support will but does not something Pacific must to dis do more conclusively establish, that there was le- charge persuasion. its burden Southern gal excuse for an viola- request Pacific must then and obtain a ordinarily that would constitute inquires on an issue which gence per quarrel se. I have no with the cоntributorily Castro was negligent as holding persuasion that “the burden of on measured law or reasonable the excuse on contention” is who excuse, man standard. Issues terms of adversary asserts that guilty has been special such as issues 14 and 15 set forth of negligence per violating se in above, stat- the violator had bur *8 not, however, prob- ute. This is the “basic den to findings obtain favorable should lem” in the of the The submission case. not be submitted.
truly problem basic whether the is In connection having with its common law may discharge burden the same contributory issues, negligence upon proper by obtaining an answer affirmative to an request, inquiry Southern Pacific entitled rеquires jury will be the to consider to a issue, definition or instruction which informs and decide the excuse or whether we jury the Legislature the does, has established a are hold, the apparently Court uniform standard of safe conduct for those negating burden of excuse can nev- who approach and cross crossings. by railroad er discharged except be convincing the The may provisions state the jury of sec- guilty the negli- violator was of so, however, by gence present I do This is not in the the law standard. means agree holding, dealing statutory not with this it because case. Here we are one, wholly that a case such as the of are arbi- present standards conduct that 6701d, trary, involves an violation Art. of all these of strict observance 86, unnecessarily not every must be submitted in an in their would standards detail complicated the confusing regarded manner that is to an ordinarily be as essential jury parties. and unfair the care. Under exercise reasonable provisions the motorist of Art. There is much to be said for method fifty “within required his vehicle approved of submission in Hammer Dal v. (15) fifteen not less than (50) feet but Tex.Sup., Company, las Transit 400 S.W.2d railroad” rail of such feet from the nearest Powell, Refining and Phoenix Co. v. in the described of the situations Tex.Civ.App., 251 ref. n. (wr. S.W.2d 892 might laymen yet jury And a statute. e.), properly r. and it can be used in most imprudent not conclude that well my opinion In be used cases. it should stop his ve- a motorist to unreasonable for prob will whenever standards feet from feet or even 65 hicle or ten five ably by recognized applied jury be a could, rail, jury the nearest laymen determining the care that alone, that a violation decide that reason by a person should be exercised under negligence was not statute prudence under the same or similar circum the common law standard. example, stances. For motorist not standards are When Phoenix had violated that for the statute accepted in deter- generally recognized and driving high bids the left side of the person expected to be mining the care way. This The was also true Hammer. ordinary prudence, question of excuse Smith, truck driver in Taber Tex.Civ. conclusively established raised but not App., (no operated writ), S.W.2d 722 fairly be resolved the evidence cannot his vehicle after lights. dark without inquiring to an issue jury’s answer layman guilty of recognizes average that or- violator was gence law standard. dinarily imprudent both the common unlawful course, if problem, highway to drive on be no the left side of the or There would operate highway were answered negligence a motor vehicle on the issue lights. finding motorist was after dark In eаch of the A without affirmative. cited, therefore, vehicle with- cases it was reasonable negligent failing stop his feet jurors find the less.than 15 assume would not in 50 feet but mean fairly be taken to guilty negligence they can violator unless nearest rail accept- concluded that caused of excuse that the evidence nega- blowout, that a problem failure unexpected jury. sudden and ed necessarily mean that lights, excuse raised some other answer tive will to the ab- unpersuaded as negligence A evidence. remains raised is: clearly mean that the had re- an excuse that would sence of evidence, falls within jected excusе relied permissible nega- importantly, that are violator. More classes of excuses Structural Impson opinion der our could answer to the tive Tex.Sup. Inc., 487 S.W.2d Metals, jurors to mean that the had fairly taken justification or concluded that there was not be solved problem will This so, that is for the violation. When to instruct by attempting magnified even may properly be parties rights Art. provisions of concerning the *9 issue by to an evi- turn on the answer the 6701d, made to raised 86, and excuses § best Impson. At qualify under the constituted inquiring whether violation dence the enable simply will the instructions the law standard. negligence by jurors only by Court along the statute reason offered the consider of today’s importance other for is the determining evidence in whether the decision in ordinary having applied violator the rules that be exercised care under uniform can issue circumstances. At the all cases the evidence raises an worst instructions where will is- of reason is jurors confuse to the real excuse. This itself the source shape sues in Court the case and cause them of some me. If the confusion to today their finding anyone guil- answers does to avoid mean that rules announced cases, ty of violating uniformly applied a criminal statute. are to be in all or- seems to me that submission of negative A inquiring answеr to an issue dinary un- collision case will be automobile alleged guilty violator of necessarily complicated by requirement negligence by the common law standard concerning the jury that the be instructed may simply jurors well mean that the con- provisions alleged the statute 6701d, wholly cluded: (1) that Art. 86 is by the been and the excuse raised violated ; that, regardless unreasonable for evidence. If the Court does not mean statute, the exercise of care does uniformly suggest applied, the rules to be I require not stop precisely a motorist to that the the bench who members of and bar within prescrib- the limits the area there experiencing difficulty distinguish- “are ed; or (3) that the violation was ing between excuses and statutes by fact or some circumstance that Blades, by governed Christy should be [v. qualify Impson does not or that is not under Tex.Sup., hand on the one S.W.2d 107] evidence; by even raised that the and Phoenix Hammer on the other” guilty motorist be should found of vio- difficulty experience will now similar penal lating a statute. It for this reason distinguishing between statutes which question fairly cannot re- be governed by should be Hammer and Phoe- solved in- jury’s answer to an issue present nix on hand and the one quiring negligent whether the motorist was case on the other. by the common standard. law It should be noted that does the Court parties case are entitled suggest state or even that the Hammer submission that enable the will to con- Phoenix method submission will sider controlling and decide issues of parties involving fair to both cases fact. In Missouri-Kansas-Texas R. Co. violation of Art. 86. This is McFerrin, 931, it 156 Tex. 291 S.W.2d requiring net derstandable. The result of “plain- was held train that whether a present case be submitted in ly proximity” visible” and “in any- Hammer and Phoenix manner is that standpoint determined from the thing more than scintilla of evidence person ordinary prudence position excuse, flimsy no matter how and incredi- of the motorist. also held that an un- be, ble the evidence will nul- somehow excused violation of the statute сonstitutes lify holding McFerrin our and make negligence per long se. So as the latter con- violation evidence to be openly ques- is not holding stands, and sidered resolving case, tioned majority present of negligence by the common law standard. the narrow issue of excuse will be con- Court, If that is the effect intended trolling importance when raised the evi- it is my opinion that our basic rules con- yet dence. And of sub- method cerning negligence as a matter law approved required by mission now should accordingly. be revised cases, Court for railroad collision relying upon the viola- It impossible, course, to reconcile opportunity denied a fair to have the majority holding with our decision consider decide Impson. the excuse was there held that excuse issue. legislative standards *10 that one by proof quite It seems anomalous to me conduct cannot established mere be person a statute reasonably, particular the exer- who violates that acted or violator care, per ordinary guilty should se negligence the be held cised under circum- the attempted person to while another stances. The truck driver had who violates same pass by judged by left will an on the statute conduct driving automobile merely there feet of an common law standard bеcause highway side of the within 100 6701d, 57, in violation is “some of excuse. intersection of Art. evidence” jury might Vernon’s Ann.Tex.St. The question my There mind as evi- reasonably have concluded from really means that when the Court that dence conduct was reasonable this Impson-type of an excuse some evidence for- der the circumstances. The had driver introduced, relying the party on the vio- night, gotten about the intersection. was request lation then find- “must and obtain by trees and intersection obscured was ing” negligent the violator was in- sign warning and houses. common law or man standard. reasonable small, and no tersection was there was improper Is form of other submission pavement in- dashed or solid line on the though even on the fairly findings elicits no-passing held, dicate a how- zone. We A trial the evidence? issues raised ever, an been issue of excuse had not might party grant request court raised, there evidence of because was no relying on the violation for submission any legally acceptable “excuse justifi- or dealing specifically with issues cation” similar to those mentioned evi- violation the excuse raised and Torts, Second, Restatement of In 288 A. be done because dence. This could support this holding, we the writ- cited was entitled judge that the concluded ings Page Harper of Dean Keеton & requested of the submission James, argument their particularly they should submitted to obtain statutory permit the exoneration from a holding present clarification of the violation proof mere care case. is, effect, simple to commit to a com- us negligence mon and authorize law standard to this suppose a case similar Let us dispense with reasonable stat- by the raised one in which every utory requirements in no mat- case If impossibility compliance. evidence how flimsy ter the excuse. concerning the violation specific inquiries submitted, are the case and the excuse holding Impson, an issue of Under our driver that the jury findings rеach us with only by raised of one excuse can be guilty was of the automobile Restatement mentioned in the excuses him possible for it was violation when something similar thereto. Under We will the statute. required as present some holding case, when an unexcused findings of thus have Impson-type in- an excuse is evidence of opin- majority out troduced, holding goes in Impson per se. negligence that this is ion tells us be ex- will the window violator neg- nevertheless hold the Court Will reasonably cir- under the cused he acted the driver has part on the ligence saying : The Court thus cumstances. is no there since been established guilty violator will held law negligent that he he is negligence a matter of law unless abandon unless we doubt it I Imp- standard? of an produce some evidence able entirely. per se rule excuse; son-type that once some submit, in addition to might trial of) evidence of (more than scintilla above, an mentioned specific issues introduced, Impson Impson-type excuse is negligent driver inquiring whether the violation application and no further has law standard the common reason- will be if the conduct If the railroad. proof on the burden able under circumstances. *11 or jury separate of a by the in the submission that issue were answered consider specific findings require an that enable and negative, will the override, to, statutory violation yield whether the decide unexcused violation submis- jury’s to find This method of conflict with the refusal was unexcused. sion, to be es- preponderance Christy which was held involving a violation of negligent by the violator the common in cases sential 6701d, 86, parties both do not know. Art. is fair to law standard? I considerably than the less cumbersome past year attempted, In the or so have we Phoenix method modified Hammer and trust, simplify with some I success adopted Court. now jury. to the See Adam submission cases Corp. Sharpe, Tex.Sup., Dante 483 S. STEAKLEY, J., joins concurring this Berner, 452; Yarborough Tex. W.2d opinion. Sup., decisions S.W.2d 188. These me un make even more difficult for present holding
derstand the case. open to us and the choice alternatives quite
that should be seem clear. The made complicate charge
Court chooses provisions
and confuse the with the
of a statute that understood few lawyers judges instructions COM SOUTHERN PACIFIC TRANSPORT concerning violating the statute. excuse al., Appellants, v. et PANY OF TEXAS including statutory provi Instead of these charge, sions and instructions in the I al., et COMMISSION Texas RAILROAD require would and de to consider Appellees. question by submitting cide the B-3468. No. simple example, impossi fairly For issue. bility compliance, raised evi Supreme Court of Texas. dence, could be as follows: submitted Jan. 1973. preponderance Do find from a after evidence that the train became prox- visible and
imity to the crossing, did, plain- if it
tiff the exercise of care
could stopped his automobile within
fifty feet but not less than fifteen feet
from the nearest rail railroad
track ?
I can think no rational basis for re-
quiring that the Hammer and Phoenix submission,
method of now modified Court, be used in involving a case violation of Art.
complicates lengthens charge, tends
to confuse jury, and deprives par-
ties aof fair submission controlling of a
and ultimate If issue. we must have uni-
formity costs, at all I opt would for the