*1 ST. LOUIS SOUTHWESTERN COMPANY,
RAILWAY
Appellant, KING, Appellee.
Ken
No. 6-91-021-CV. Texas, Appeals
Court of Texarkana. Hatchell, Jeffus, Ramey, Flock, Mike A. Sept. Crawford, 1991. Tyler, appellant. Harper, for Rehearing Oct. Overruled Parish, II, Jim Ammerman Parish & Am-
merman, Gilmer, appellee. CORNELIUS, C.J., Before and BLEIL GRANT, JJ. OPINION BLEIL, Justice. Lynn King’s death as result
Following pickup of a truck she collision between driving and a St. Louis Southwestern train, Railway King, Ken Company her sur- viving spouse, damages recover sued to against Railway. jury The found that Lynn Railway negligently caused death, King, King’s damaging Ken part negligence failed to find on Lynn appeal, does King. On negli- challenge the that was damages gent question awarded. Rather, it on the failure of the concentrates King negligent, claiming jury Lynn to find against great this find is raises an The point. conclude that We is not Lynn King to find preponderance of the great weight evidenсe, error, no other and affirm judgment. the trial court’s 26, 1982, May Lynn p.m. on About 4:30 Tyler Street Gilmer. drove east proceeded north towards train Tyler its tracks with intersection approximate- collided Street. vehicles impact threw ly corner to corner. vehicle, causing inju- severe King from her ries, day. the next resulting in her death *2 seeing is Neither remembered lo tall bushes. crossing, The railroad which hearing or warning lights flashing bells Gilmer, marked near was cated downtown accident, although before the lights suspend that over thе or whistles cantilever with operat- were signals that all road, they recalled in to the standard railroad addition ing the accident. primary ap issue on after crossbucks. As nature, is in additional evi peal driving King Ken that as he was testified in of dence is discussed our evaluation accident, day following the home the whether had obscured the bushes and shrubs which contributorily negligent the over being by Railway em- cleared tracks were whelming preponderance of the weight and Calhoun, investigator ployеes. Thomas Railway, that he was for the also testified following of the accident Berry Ferrill2 were scene Ashby1 Mike and clearing shrubs day no one was to and that only eyewitnesses two disinterested How- Railway’s right-of-way. from Ashby testified at trial.3 the accident that ever, by taken Cal- photographs that in several they Ferrill were and testified ax, stakes, a survey brush appeared day, houn that following King, that the train car appear. freshly cut brush nowhere, piles that as well as and the view out explain these items. Thеse by houses He could not tracks was obstructed train seeing any lights Q be- Ashby You don't remember testified follows: following fore? A We a vehicle and out of were eight can It’s it as it A that I remember. been the clear blue the train struck Not trying years. the tracks. cross Lynn King’s Q be The vehicle would vehicle? Q you hear a whistle? Did A Yes. No, A sir. you thing Q What the first that saw? you any Q bells at all before the—? Did hear saw, thing that A The first I I remember No, A sir. looking up realizing just that a train came now, driving you you Q when were Did see— out of to the left out of nowhere the bushes here, you watching along where down were truck, taking and struck the it off road you going? were dust, Berry, right, and a lot of Yes, A sir. driver, just at each other and out of looked supposed Q to? Like a driver is that the train was there. I shock realized Yes, A sir. don’t know wherе came from.... King’s lights you Q brake come see Did Mrs. on, you that remember? you approaching Q the railroad As were seeing lights come brake A do remember I truck, crossing there before train hit crossing right pickup, but at the it was you anything there that warned crossing. or real close coming? train there, (sic) you got up Q was there When A No any lights? you visibility Q Did see obstructed? any any lights Yes, hear bells A I didn’t notice or A sir. train whistles. Q tracks? Of the Yes, A sir. 2. Ferrill testified follows: coming? Q a train Of truck, not A I was a distance behind the ... head.) (Witness nods A it, approached far when we that behind crossing, ap- nowhere the train and out of eyewitnesses did not 3.Two other disinterested peared with truck.... and collided given testify. a state- had earlier Doris Pieratt attorneys she in which ment for the Ferrill, anything, Q And there Mr. King’s approaching the said she saw truck you at what was all about indicated —warned including lights signals, all tracks and that you any fixing happen? a Did have idea bells, functioning the accident. before coming? train was testify at trial be- not allowed to Pieratt was do remember A Not that I remember. I designated as a witness. had not been cause she some that I did see red after accident to an did at trial due Jean lights accident Keller after the occurred. family. sub- Q did not After? her illness in Yes, a poena sir. the court for сontinuance or ask her testify. enable her accident, any Q was there Before the —did coming? you have idea train was remember, sir. A Not that I photographs, compared apply when with those these record to established standards accident, day taken the demonstrate review. that brush been cleared the follow- Railway presented evidence that
ing day.
Ashby
and Ferrill’s
at trial dif-
*3
fered
they
from statements
had made earli-
Greene, Jr.,
George
witness,
expert
an
investigator.
er to
that it
its
It denied
had
that he
knowlеdge
testified
had
of accident
any knowledge
being
of brush
cleared im-
signal
lights
situations where railroad
mediately after the accident and stated that
accident,
failed to
an
function before
but
depicted
photo-
the accident scеne
in its
operational
were
after the accident. He
graphs
unchanged
from the time of
indicated that
crossing
because the railroad
the accident.
of
Additionally, members
the
orientation,
had an
it
possi-
east-west
that,
Railway
testified
thеir
crew
from
van-
the
impossi-
ble that
afternoon sun made it
tage point,
signals
functioning
all
were
and
King
warning
ble for
to
lights
see the
horn,
oscillating headlight
the
bell and
of
that,
danger, signal lights
because of this
working
the
of
train were
at the time
the
adequate
alоne were never
at east-west
that,
They
collision.
also testified
as soon
crossings.
railroad
He stated
if the
going
as they
King
realized that
was not
to
lights
functioning
were not
or
not
were
stop,
brakes,
they applied
emergency
the
visible, given the obstructions such as
stop
but were unable
in time to avoid the
blocking
houses and
the
shrubs
view of the
the
accident. While
observes that
tracks, by
King
the time
could first have
engine’s
the testimony regarding the train
train,
impossi-
seen the
it would have been
warning systems
disputed,
was not
stоp
for her to
ble
time
avoid
credibility
brought
of those witnesses was
He
accident.
further
testified that
into question.
twenty-one feet of skid marks indicated
possible
that she braked at
first
mo-
jury
presented
is
When the
with conflict-
that,
ment. He added
due to the
of
ing evidence,
volume
may
choose
believe one
the crossing,
traffic at
the number
acci-
others,
of
may
or it
witness
disbelieve
past,
factors,
in the
dents
and other
resolve inconsistencies in the
of
crossing
designated
as
been
extra-haz-
any
Kuhlmann,
witness. McGalliard v.
Highway Department;
ardous
694,
(Tex.1986).
at
722
699
As
S.W.2d
accident,
crossing
time of the
fact,
was the
jury
judge
trier
of
sole
priority
upgrading
number one
in the
credibility
weight
of witnesses and the
state.
testimony.
their
to be attached to
Dalton
Co.,
374,
Hatley
George
v.
B.
634 S.W.2d
jury’s finding
In our review
of a
1982, writ).
(Tex.App.-Austin
377
no
Al-
find,
may
merely
not
we
substi
though there was evidence from which the
judgment
jury.
tute our
for that of a
King
jury
determined that
could have
Co.,
v.
Cropper
Caterpillar Tractor
754
eontributorily negligent, there was also evi-
646,
However,
(Tex.1988).
651
pur
S.W.2d
jury’s
dence
supporting
find
Const,
V,
6,
to Tex.
art.
suant
when
§
contributory negligence and its
upon, we
that a
called
review contentions
negligent.
percent
100
against
failure to find a fact is
jury’s
evidence,
Considering all
we cannot
weight
great
of the evi
that the
failure tо find
conclude
Cropper
Caterpillar
dence.
v.
Traetor
great
Co.,
650; Traylor
754 S.W.2d at
v. Gould
light
In
preponderance of the evidence.
944,
(Tex.1973).
497
948
In
ing,
S.W.2d
trial,
we to
adduced
so
evidence
reviewing
this or
other factual suffi
conclude,
erroneously
be
substi-
we would
challenge,
ciency
consider all of the
we
tuting
judgment
jury.
for that of
our
evidence, including
contrary
evidence
to do.
This
decline
Plas-Tex, Inc. v.
jury’s verdict.
U.S. Steel
442,
(Tex.1989);
brings a two-
772
445
Corp.,
S.W.2d
735,
evidentiary ruling.
pronged attack on an
Motyka,
v.
610 S.W.2d
Burnett
trial
in strik-
(Tex.1980).
It
court erred
We turn to
evidence
claims
ing portions
police
report
of a
officer’s
Tex.
had the court been asked to rule.
And, third,
103(a)(2).
and in
had the
made at the scene
the accident
R.Civ.Evid.
Brown,
officer,
refusing
qualified
to allow James
court ruled that Brown was
of the accident.
express
opinion
the cause
witness to
an
expert
Brown testified as to what he observed and
collision, we would
the cause of the
about
scene,
he
re-
heard when
arrived at the
See,
no
court
abuse
trial
discretion.
counting the witnesses he interviewed and
Torres,
e.g., Hooper
790 S.W.2d
the statements made to him.
tes-
Brown’s
(Tex.App.-El Paso
writ de-
760-76
timony centered on what he had seen and
nied); Pyle
Transp.
v. Southern Pacific
immediately following
heard
the collision. Cо.,
tonio writ ref’d offi- rehearing, On motion alone, cer, by position qualified to his is not in complains that we erred our review expert opinion regarding render an an acci- in applying facts and Co., Pyle Transp. dent. v. Sоuthern Pac. of the evidence standard for preponderance (Tex.App.-Houston 774 695 S.W.2d Upon reconsidera- review of denied). writ The trial [1st Dist.] that, tion, upon based we remain convinced ruling court in no erred in that manner evidence, including contrаry all of qualified Brown not as jury’s finding, neither First, expert witness for several reasons. King contributorily Lynn to find expert Brown never offered as an wit- negligent its that the nor ness, though the even court indicated percent qualified, he that if he were shown to be evi- great weight provided by express opinion could his as dence. Second, the sub- since Tex.R.Civ.Evid. complains of our over- testimony was stance of such excluded asserting trial court, ruling point of error error not made no known police striking portions of the ruling, in predicated on the court’s court error could be quite may eight have found that Brown about well 4. Because the trial occurred collision, inexperienced before it. based on the evidence years court trial one-half after reрort made and in re- Glenn Brown
fusing to allow Brown’s as to Although of the accident. the Rail-
cause argument
way’s point under this of error is
multifaceted, attempted to make have holding precise possible. We
our not err
reiterate trial court did in
striking parts report those Brown’s opinion he stated his of the cause of
which in precluding
the accident and Brown from
testimonially stating opinions because his witness, expert
he was shown to be an
and the trial court not shown have failing its discretion in to hold
abused on the qualified expert
Brown was as an ap-
cause of the collision. The trial court *5 exer-
pears carefully properly to have rulings discretion in on the
cised its concerning complaints though regard, actions in
trial court’s this
artfully lodged, on the lack merit based proceedings.
record of these DURISH,
Stephen Permanent S. U.S., Lloyd’s, a Texas
Receiver Insurer, Appellant,
Lloyd’s Plan INSUR- OF
TEXAS STATE BOARD ANCE; Attorney General Texas, Mattox; and the State Jim Texas, Appellees.
State
No. 6-90-039-CV. Texas, Appeals
Court
Texarkana.
Sept.