T. F. CHRISTY et al., Petitioners, v. Thomas H. BLADES et al., Respondents, 448 S.W.2d 107

WALKER, Justice. This is a railroad crossing collision case. The jury found, in effect, that the truck driver violated Vernon’s Ann.Civ.St.

article 6701d, § 86(d), by failing to stop within fifty feet but not less than fifteen feet from the nearest rail when the train was plainly visible and in hazardous proximity to the crossing and that this failure was a proximate cause of the collision. There is evidence to support plaintiffs’ contention that it was impossible for the driver to stop after the train became plainly visible but impossibility of compliance is not established as a matter of law.

The question to be decided is whether plaintiffs are correct in their further contention that the railroad, if it wished to rely upon the statutory violation as a defense under these circumstances, had the burden of obtaining a finding that the failure to stop was negligence under the common-law standard. Plaintiff’s are Pinkney Packing Company, the owner, and Thomas H. Blades, the driver, of the vehicle involved in the collision. Defendants are Fort Worth and Denver Railway Company and its engineer, T. F. Christy. The trial court rendered judgment on the verdict for defendants.

The Court of Civil Appeals reversed and rendered judgment for plaintiffs. 437 S.W.2d 376. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court. The accident occurred on Browning Street in Amarillo at about 1:30 o’clock p. m. The street is crossed by six railroad tracks, which run in an easterly and westerly direction. Pinkney’s plant is located on Browning Street immediately north of the tracks. A short time before the collision, Blades parked his loaded truck at the plant and went into the office.

After completing his business there, Blades reentered the truck and drove in a southerly direction across the tracks. The truck and its trailer were fifty two feet in length overall and weighed 65,000 pounds loaded. Estimates of the truck’s speed vary from three to seven or eight miles per hour. The truck was struck by a switch engine pulling thirteen freight cars in an easterly direction on the fifth track from the north. The train was moving at an estimated speed of approximately five miles per hour.

Blade’s view of the approaching train was obscured, for some time at least, by seven box cars spotted on the fourth track. The east end of this string of cars was about twelve or fifteen feet west of the west line of Browning Street. The distance between the fourth and fifth tracks is 37.8 feet. The fifth track is not parallel to the tracks north of it but curves from southwest to northeast as it approaches and crosses Browning Street from the west.

Blades had an unrestricted view of the train before his vehicle reached the fourth track, and the evidence will support the conclusion that he could have complied with the statute after the train was plainly visible to one in his position.

In response to the primary negligence and discovered peril issues, the jury: (1) found that the crossing was extrahazardous for traffic traveling south when a train was approaching from the west on the fifth track; (2) found that the collision was proximately caused by the railroad’s negligence in leaving the box cars on the fourth track and in failing to have a flagman at the crossing; (3) found that the engineer discovered Blades in a position of peril and realized he would probably not be able to extricate himself, but refused to find that the discovery was in time to avoid the collision; and (4) refused to find that the engineer failed to sound the bell or horn or that the failure to have an automatic signal device at the crossing was negligence.

In response to the common-law contributory negligence issue, the jury refused to find that Blades failed to listen for an approaching train, failed to keep a proper lookout, or saw the engine in time to avoid the accident by applying his brakes. Defendants alleged that the accident was proximately caused by the negligence of Bládes in failing to stop his vehicle within fifty feet but not less than fifteen feet from the nearest rail as required by

Article 6701d, § 86(d), when the approaching train was plainly visible and in hazardous proximity to the crossing. The issues submitting this defense and the answers of the jury were as follows: SPECIAL ISSUE NO. 10 (

a) Do you find from a preponderance of the evidence that the defendants’ train was plainly visible before the Pinkney Packing Company truck reached a point fifteen feet from the nearest rail of the track ? Answer “Yes” or “No” In connection with your answer to this subdivision you are instructed that the defendants’ train was “plainly visible,” if it was, when a reasonably prudent person, situated as was the plaintiff, Thomas H. Blades, and exercising ordinary care for his own safety, should have seen it. Answer: Yes (

b) Do you find from a preponderance of the evidence that the defendants’ train was in hazardous proximity to the crossing in question before the Pinkney Packing Company truck reached a point fifteen feet from the nearest rail of the track ? Answer “Yes” or “No” In connection with your answer to this subdivision you are instructed that the defendants’ train was “in hazardous proximity” to the crossing, if it was, when, under all the surrounding facts and circumstances in evidence, the speed and nearness of the train was such that a reasonably prudent person, situated as was the plaintiff, Thomas H.

Blades, in the exercise of ordinary care, should have known that an attempt to proceed over the crossing ahead of the train was hazardous. Answer: Yes (

c) Do you find from a preponderance of the evidence that the failure of the plaintiff, Thomas H. Blades, to stop the Pinkney Packing Company truck within fifty feet, but not less than fifteen feet from the nearest rail of the track was a proximate cause of the collision in question? Answer “Yes” or “No” Answer: Yes For the purpose of this opinion, we assume without deciding that impossibility of complying with the statute because of lack of time within which to do so will excuse the violation. See Restatement, Second, Torts § 288A.

Although the issue is raised by the evidence, the jury was not given an opportunity to determine whether it was impossible for Blades, by the exercise of ordinary care after the train became plainly visible and in hazardous proximity to the crossing to stop his truck as required by the statute.

Plaintiffs requested no additional issues or instructions but did make the following objection to the charge: “For the further reason that there is no submission of the question of negligence in a failure to stop at any said location on the said track.” The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for plaintiffs because it concluded that this objection was well taken. It reasoned that where the evidence raises an issue of excuse for violating the statute, the burden is on the railroad to obtain a finding that the violation was negligence under the common-law standard.

There are statements in a number of opinions that seem to support this conclusion. See Hammer v. Dallas Transit Co., Tex.Sup., 400 S.W.2d 885; Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369 (wr. ref. n. r. e.); Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892 (wr. ref. n. r. e.); Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722 (no writ). The jury in Hammer found that the traveling of defendant’s bus on the wrong side of the road was negligence.

It appeared that the bus was out of control when it crossed the center line, and defendant insisted that this excused the vehicle’s presence on the wrong side of the road unless plaintiff established some specific act or omission that caused loss of control. In rejecting this contention, we stated that: “An analogous situation is found in instances in which one relies upon and proves the fact that his adversary violated a statutory standard.

The one charged with such a violation may then go forward with the evidence and show excuse or justification for the violation. * * * But it is the one seeking to justify or excuse the violation who has the burden of going forward with the evidence. * * * When he does so, he thrusts upon the other party the burden to obtain a finding that the violation was negligence under the common-law standard. * * * The burden of persuasion on the whole case remains on the one relying upon the statutory violation. * * ⅝ »

The adverse party will need a finding of common-law negligence, of course, if a legal excuse for the violation is established by the evidence as a matter of law or by a finding of fact. There are also cases in which the existence of excuse vel non can fairly be made to turn on the jury’s conclusion as to whether the actor was negligent by the reasonably prudent man standard.

This is so, for example, where the statutory requirements are generally known and accepted as the minimum standard of care and the nature of the claimed excuse is such that a technical violation will not constitute negligence if a person of ordinary prudence would have violated the statute under the same or similar circumstances. Whatever the rule may be in other situations and under different statutes, however, it is our opinion that when a violation of

Article 6701d, § 86(d), has been established by findings similar to those quoted above, impossibility of compliance is not properly submitted by requiring the jury to determine whether the motorist exercised ordinary care. It is true, as pointed out by plaintiffs, that the ultimate issue of negligence, defined in terms of the common-law standard, encompasses the existence or nonexistence of excuse.

If the jury finds that the motorist was negligent in failing to stop, this would necessarily include a determination either that it was not impossible for him to do so or that his inability to stop was due to his own negligence. But the converse of this statement is not true, because the jury would be free to find that the motorist was not negligent if it concluded for any reason that a person of ordinary prudence similarly situated would not have stopped.

A negative answer to the usual negligence issue is not a finding that it was impossible for the motorist to comply with the statute by the exercise of ordinary care after the train became plainly visible and in hazardous proximity to the crossing. It could mean only that the jurors thought a person of ordinary prudence would have elected to disobey the law under the circumstances. The jury’s conclusion that the motorist was not negligent by the common-law standard is of no assistance, therefore, in determining whether the violation constitutes negligence as a matter of law for purposes of the civil action.

The method of submission urged by plaintiffs would make the violation nothing more than evidence of negligence to be considered by the jury. This is the rule in some jurisdictions, but it is settled in Texas that an unexcused violation of

Article 6701d, § 86 (d), constitutes negligence as a matter of law. Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931. See also Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587; Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363; San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 634, 32 S.W. 880. There is no merit in the above mentioned objection to the charge, and it was properly overruled by the trial court. See Texas & P. Ry. Co. v. Davis, Tex.Civ.App., 374 S.W.2d 305 (wr. ref. n. r. e.); Southern Pac. Co. v. Alex, Tex.Civ.App., 411 S.W.2d 413 (no writ.) The problem of submitting impossibility of compliance with

Article 6701d, § 86(d), was considered by at least, one legal writer shortly after our decision in McFerrin. On the theory that this excuse for violating the statute is legally analogous to sudden emergency, it was suggested that the motorist should have the burden of proving: (1) that after the train became plainly visible and in hazardous proximity to the crossing, he could not by the exercise of ordinary care have stopped his vehicle within fifty feet but not less than fifteen feet from the nearest rail of the track; and (2) that his inability to stop was not caused by his own negligence. Calvert, Special Issues under

Article 6701d,

Section 86(d), of the Texas Civil Statutes, 34 Tex. L.Rev. 971. See also Hodges, Special Issue Submission in Texas, § 25, p. 67. We agree with these conclusions. It is also our opinion that when impossibility of compliance is raised but not conclusively shown by the evidence, the motorist must request the submission of proper excuse issues before he will be heard to complain of their omission from the charge. To establish a violation of

Article 6701d, § 86(d), the railroad is required to prove conclusively or obtain findings that a train was approaching, was plainly visible and in hazardous proximity to the crossing, and that the motorist either failed to stop as required by the statute, or after having stopped, proceeded before he could do so safely. These are the elements of the offense. Once they are established and in the absence of circumstances amounting to legal justification or excuse, the motorist is guilty of negligence as a matter of law. Defendants could gain nothing then from the submission of issues on impossibility of compliance.

Their defense was complete when the elements of the offense and causation were established by undisputed evidence and by findings of fact. It is plaintiffs who would benefit from the submission of excuse issues in this case. It is they who would rely upon favorable findings thereon to avoid the legal consequences of conduct that would otherwise be regarded as negligent. Since they requested no issues or instructions, the trial court’s judgment cannot be reversed for the failure to submit proper excuse issues. Rule 279, Texas Rules of Civil Procedure; Hodges, supra, § 71, p. 175.

Plaintiffs have not contended on appeal that legal justification or excuse for violating the statute is established by any of the jury’s findings or by the evidence as a matter of law. They did not object to Special Issue No. 10 in the trial court on the ground that the track in question was not adequately located or identified. We have considered all the points of error urged by them in the Court of Civil Appeals and find none that would warrant a reversal of the trial court’s judgment. Several of their points assert that “the evidence is insufficient” to support the findings in response to Special Issue No. 10.

A point of error expressed in these terms is ambiguous and can mean either that the evidence is legally insufficient or that the evidence is factually insufficient to support the finding under attack. Garza v. Alviar, Tex.Sup., 395 S.W.2d 821. From a consideration of the argument under the points and the prayer of plaintiffs’ brief, it is our opinion that they present only “no evidence” contentions. All of the points of error brought to the Court of Civil Appeals raise only questions of law, and there is no reason or basis for remanding the cause to the intermediate court.

Any statements in the opinion of the Court of Civil Appeals suggesting that a failure to stop becomes a violation of the statute and negligence per se only where the train was “plainly visible” and in “hazardous proximity” to the crossing as a matter of law are disapproved. The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed. McGee, J., dissents.