text:
    Maxine GRAY et vir, Appellants, v. L. W. NEWBERRY, Appellee.
    No. 7544.
    Court of Civil Appeals of Texas. Texarkana.
    May 12, 1964.
    Rehearing Denied June 9, 1964.

      Kenzy Hallmark, Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    James H. Rounsaville, John Spiers, Norman, Rounsaville, Hassell & Spiers, Jacksonville, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, L. W. Newberry, sued the defendant-appellant, Maxine Gray, joined by her husband, W. C. Gray, for damages as the result of a collision between a pickup that was being driven by the ap-pellee and an automobile being driven by the appellant, Mrs. Gray, which occurred in the City of Jacksonville on Highway 69 on October 9, 1961. Appellee was traveling in a southerly direction and the appellant was traveling in a northerly direction. Doyle Chandler was also traveling in a northerly direction, and had brought his pickup to a stop to await the traffic that was traveling in a southerly direction to pass by so he could turn off to the left to go to his place of residence. It was raining, and as appellant approached the pickup that was being driven by Doyle Chandler she either drove the car, or improperly applied her brakes, and drove it, or permitted it to skid, to the west side of the highway and meet the appellee head-on. The appellee contends that the appellant was negligent in many respects, and that such negligence proximately caused the collision. The case was tried before a jury. The jury answered all the special issues in favor of the appellee and assessed his damages in excess of $32,000.00. The appellant filed an amended motion for new trial, which was overruled, and has perfected her appeal. She brings forward 22 points of error.

By her points, appellant contends that the trial court erred in entering judgment against her for the following reasons:

The appellee was guilty of negligence that caused the collision as a matter of law;

The appellee failed to keep a proper lookout;

The answers of the jury to special issue No. 22 are against the weight and preponderance of the evidence;

There was no evidence that would require the submission of any issues to the jury about any negligent acts or omissions on the part of the appellant;

There was no evidence, and insufficient evidence, to support the submission of Issues 1 and 2 inquiring if appellant drove her car across the center stripe of the highway, and that such act was negligence;

There was no evidence, and insufficient evidence, to support the submission of special issue No. 4 that appellant negligently applied her brakes;

There was no evidence, and insufficient evidence, to support the submission of special issue No. 6, nor to support the jury finding that appellant was negligently operating her vehicle at an excessive rate of speed;

There was no evidence, and insufficient evidence, to support the submission of special issue No. 8 that the appellant failed to keep a proper lookout;

There was no evidence, and insufficient evidence, to support the submission of special issue No. 10 that appellant was guilty of following too close to the vehicle of Doyle Chandler;

There was no evidence to support the submission of special issue No. 12 that appellant failed to keep her vehicle under proper control;

In submitting special issue No. 12, “Proper Control”, having already submitted issues Nos. 1, 2, 4, 6, 8, and 10, because such submission is repetitious and constitutes an undue emphasis and a comment on the case;

In submitting special issue No. 1, because such issue is multifarious in that it constitutes a comment upon the weight of the evidence;

In instructing the jury that in connection with special issue No. 14 they could consider the loss of future earning capacity, because there were no pleadings to support such submission and instruction;

The jury finding to special issue No. 14 is excessive and the evidence is insufficient to support such finding; and,

In overruling her motion for an instructed verdict.

Appellant relies upon the cases of Wichita Valley Ry. Co. v. Fite (Ct.Civ.App.), 78 S.W.2d 714, N.W.H., and Standard Paving Co. v. Webb (Ct.Civ.App.), 118 S.W.2d 456, N.W.H., to support the theory that the appellee was guilty of negligence as a matter of law. The cases are not in point. According to the evidence, the appellant was driving her car in a northerly direction, late in the afternoon, while it was raining, and the appellee was driving in a southerly direction. Immediately after the appellee had met Doyle Chandler, the appellant either drove or skidded her car across the center stripe of the highway and into the vehicle that was operated by the appellee at a time and on such an occasion that he would not have had time to avoid the collision. He was keeping a proper lookout, and was not guilty of negligence as a matter of law. There is sufficient evidence to support the jury finding that the appellee did not fail to keep a proper lookout as inquired about in special issue No. 22.

We must disregard all evidence adverse to any legal admissible evidence and consider only the evidence favorable to the findings of the jury. 4 T.J. (2) 324, Sec. 804. In 4 T.J. (2), p. 326, quoting from Section 804, we find the following:

“A reviewing court will consider the evidence and the inferences properly to be drawn therefrom in the light most favorable to the party who obtained an uninstructed verdict, and in considering controverted issues of fact, the appellate court will accept as true the testimony that tends to support the verdict.”

Harris v. Winslar (Ct.Civ.App.), 314 S.W.2d 642, N.W.H. It is our duty to consider controverted issues of fact as true which tends to support the verdict. Brewer v. Foreman (Ct.Civ.App.), 362 S.W.2d 350, N.W.H.; Coates v. Moore (Ct.Civ.App.), 325 S.W.2d 401, W.R., N.R.E. See, also, 5 C.J.S. Appeal and Error § 1264(3), p. 126; 5A C.J.S. Appeal and Error § 1653a (1), p. 407.

Foreseeability is a necessary element of proximate cause. The driver of .an automobile is presumed to know that the •operation of an automobile inherently involves a danger of collision with other vehicles. They will not be required to anticipate or foresee that another driver will act negligently or unlawfully, or close their eyes to what is plainly visible and would have been observed by a person of ordinary prudence in a similar situation.

In this case, the appellee did not see the .appellant crossing the center stripe of the highway in ample time to prevent the collision. 7 T.J. (2) 440, Sec. 107, and 7 T.J. (2) 442, Sec. 107, and the authorities cited thereunder.

On the issues of “no evidence” and “insufficient evidence”, it seems unnecessary to quote from the record, but suffice it to say that it was raining, and the road was slick. The appellant was on her way home from work. Immediately prior to the collision, she either started to pass Doyle Chandler, or negligently applied her brakes and permitted her car to skid across the center stripe of the highway and hit the appellee head-on. She was either following Doyle Chandler too closely, or she was failing to keep a proper lookout. The jury convicted her of both, and there is sufficient evidence to support the jury’s finding. Under these facts, she did not have the car under proper control.

The point of error complaining upon issue No. 1 as a comment of the evidence is without any merit.

As to the submission of special issue No. 14, the pleadings are sufficient to allege the specific injuries. In the petition he alleged that he was thrown violently in and about the pickup he was driving, rendered unconscious, received a dislocated hip, a fracture of his knee, a fracture of two ribs, a whip-lash injury to his neck, and an injury to his lower back. Under these pleadings it was mandatory that the trial court submit the issue as he did, along with the instructions. 17 T.J.2d 276-279, Secs. 209, 210, 211 and 212; Campbell v. Fisher (Ct.Civ.App.), 24 S.W. 661, E.R.; McAlister v. Miller (Ct.Civ.App.), 173 S.W.2d 339, E.R., W.O.M.

The appellee was a carpenter. He had a dislocated right hip that will probably have to be operated on in the future. According to the evidence, he has already been working again, but in the future he will have to cease his job as a carpenter. He was making large sums and was out of work for about nine months. When he returned to work, he received less pay than he was making at the time of the injury. The answer of the jury to special issue No. 14 was $29,375.00.

There was much testimony about the injuries in the case, and Dr. Edward L. Ma-hon, an orthopedic surgeon who treated the appellee, testified about the injuries. He said that he had a whip-lash of his neck; that he had two broken ribs; and that he had an injury to his knee. But the worst injury, he said, was the dislocation of his right hip and the injuries to his back. He testified that the x-ray of the pelvis and the pelvic bone including the hip joint, revealed the head of the femur to be acetabulum of the socket. It showed a whiteish scalloped or hollowed out area of the head of the femur and a small irregularity there. He testified that as the result of the dislocation certain blood veins or arteries had been severed and were causing the head of the femur to degenerate. He said the loss of the blood to the head of the femur produced dead bone that causes other damages, and that such damages could result in damages to the back, too. He further testified that normally the knee could be drawn up to his chest. Whereas, in his case, it was at right angles, 90 degrees. He could not roll his leg outward in a normal position without causing pain. He testified about the percentage of incapacity, and further testified that in the future there would probably be need for surgery to the right hip. He said that the surgery would involve the cup and the operation device for the surface of the head of the femur would be to replace it with a metal covering or cup. If the damage is great enough or deep enough, then the whole ball head of the femur would have to be replaced by a metal substitute. He further testified that the appellee had suffered severe and excruciating pain and will continue to do so. There are other cases in which larger amounts have been awarded. Landtex Construction Company v. Lejsal (Ct.Civ.App.), 315 S.W.2d 177, W.R., N.R.E., a carpenter was awarded $70,000.00 for brain damage that caused him to be unconscious six hours, from which he suffered severe headaches and loss of memory. In Missouri Pacific Railroad Co. v. Rhoden, Tex.Civ.App., 310 S.W.2d 607, N.W.H., a railroad machinist with a life expectancy of 21.37 years, earning about $2.00 per hour, who suffered injury to leg and back, resulting in continued pain and suffering and 20% impairment of his general efficiency, $70,000.00, with a remittitur of $15,000.-00. In the Greer Lines Company v. Roberts, 216 Md. 69, 139 A.2d 235, a laborer who received permanent injuries to his left leg when he was penned between the front of a truck and a guard rail, $67,500.00. Therefore, the award by the jury seems very reasonable.

The evidence is sufficient to support the jury’s findings and the judgment. The trial court did not err in overruling the motion for an instructed verdict.

The points of error are overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Odell WELCH, Appellant, v. The COCA-COLA BOTTLERS’ ASSOCIATION, Appellee.
    No. 3880.
    Court of Civil Appeals of Texas. Eastland.
    May 29, 1964.
    Rehearing Denied June 19, 1964.

      Lefkowitz, Green, Ginsberg, Eades & Gilmore, Jack D. Eades, Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson, Dallas, for appel-lee.
   COLLINGS, Justice.

Odell Welch brought suit against Coca-Cola Bottlers’ Association to recover damages for personal injuries which plaintiff claimed to have sustained by drinking a portion of a bottle of coca-cola containing a foreign substance which plaintiff alleged the defendant had bottled. At the close of plaintiff’s evidence the defendant made a motion for an instructed verdict on two grounds, (1) that there was no evidence the bottle of coca-cola had been bottled by ap-pellee or had ever been in the care, custody or control of appellee and (2) that there was no evidence that the drink was unfit for human consumption. The court granted the defendant’s motion, withdrew the case from the jury and rendered judgment that plaintiff take nothing. Odell Welch has appealed.

Appellant presents one point in which he contends that the court erred in granting appellee’s motion to withdraw the case from the jury. Appellant contends that the evidence raised a fact issue on the question of whether he purchased coca-cola in ap-pellee’s sealed bottle which contained a foreign substance, the consumption of which caused his injuries and suffering. Appellant contends the evidence presented a prima facie case showing that he purchased a king-sized coca-cola in a sealed bottle from a barbecue stand in down town Dallas; that the bottle contained an unknown foreign substance which had the appearance of two black snails or bugs; that the consumption of the contents of the bottle and the sight of the foreign substance therein caused injury and damage to appellant, and that the barbecue stand from which appellant purchased the coca-cola is in the area of distribution of appellee’s plant which bottles and sells coca-cola in Dallas County. Appellant contends that he “was not required — to establish conclusively — -that the particular coca-cola — was bottled by appellee.” Appellant also particularly attacks the accuracy of appellee’s contention that there was no evidence that the beverage in question was unfit for human consumption.

We agree with appellant’s contention that there was evidence that the coca-cola in question was unfit for human consumption. As heretofore indicated, one of the grounds upon which appellee based its motion for an instructed verdict was that there was no evidence the bottle of coca-cola was unfit for human consumption; Appellant contends that there was ample evidence that the drink was unfit for human consumption and the court erred in with-, drawing the case from the jury based upon the assumption that there was no such evidence. We concur with appellant’s contention in this respect.

The other ground upon which appellee based its motion for an instructed verdict was that there was no evidence that appel-lee had bottled or had any connection with the coca-cola upon which appellant Welch based his claim. Appellant contends that he was not required to establish conclusively that the coca-cola in question was bottled by appellee. In connection with the question of whether appellant has sufficiently connected appellee with the bottle of coca-cola involved the rule in such cases is set out in 36A C.J.S. Food § 69(1), p. 921 as follows:

“In actions to recover for injuries caused by unfit or contaminated food, the general rules as to presumptions and burden of proof apply. Thus, the burden of proof is on plaintiff to show the existence of all the facts necessary to constitute a cause of action. Plaintiff must show defendant’s connection with the food, that is, he must show that defendant manufactured, sold, or served the food, as the case may be * * *.” See also 77 A.L.R.2d 251, 252, where it is stated:
“§ 21. Necessity of identification.
‘There is no room for doubt that a holding that a beverage manufacturer, bottler, or seller was liable for injury caused by the beverage must necessarily be predicated on proof that the beverage in question was one for whose condition the defendant was in some way responsible: thus, for example, if recovery is sought from a bottler, it must be shown that he was the bottler of the particular bottled beverage which caused injury.’ ”

The evidence shows that appellant went to Audie’s Barbecue stand on Akard Street in Dallas for lunch and ordered a sandwich and a king-sized coke at the counter. When appellant received the bottle of coca-cola and drank a portion of it he saw two foreign bodies stuck to the inside bottom of the bottle which were about a quarter of an inch long and looked like two little black snails. This sight upset appellant’s stomach and he became very sick. He thereafter went to the telephone booth and called the Coca-Cola Company on the expressway. He was told to call the Second Avenue Coca-Cola Bottling Company, which he did and requested that someone come and look at the bottle of coca-cola which he had purchased. Although he waited for some time no one came and because his stomach was still upset he didn’t wait any longer.

Mr. C. J. McNamara was called by appellant as an adverse witness. Mr. McNamara testified in effect that he was-manager of appellee Coca-Cola Bottling" Company which had two plants in Dallas-where coca-cola was bottled; that the-cokes bottled in these two plants were distributed in the Dallas area, and that they had warehouses in Waxahachie, Dentoni and Terrell. When asked if any other-bottling company bottled and distributed coca-cola in the Dallas area Mr. McNamara replied “That has happened, yes.” When asked “Is that the normal procedure, or is that abnormal procedure” he stated that it was abnormal but that “it has happened.” The bottle of coca-cola in question was not introduced in evidence and there-is no showing in the record that there were identifying marks on the bottle which would' connect it with appellee. The proprietor of Audie’s Barbecue where appellant purchased the drink was not called to testify and there is no evidence that such establishment purchased the coca-cola in question from appellee. The only indication in this-connection is that the barbecue stand is-in the down town Dallas area and is in the area of distribution by appellee’s plant-No witness testified that appellee delivered this particular bottle of coca-cola to the barbecue stand or they ever delivered any coca-cola to such place of business or to any one else who might have delivered it to Audie’s Barbecue.

Appellant cites no Texas cases bearing upon the exact point under consideration. Appellee urges several cases from other jurisdictions which appear to be in point. In the case of Jackson Coca-Cola Bottling Co. v. Grubbs, 143 Miss. 590, 108 So. 732, suit was brought for damages alleged to have been sustained when the plaintiff drank a coca-cola which contained broken glass. The plaintiff had purchased the drink from a merchant whose business was within the trade territory of the defendant. The evidence showed that on occasions both before and after the time that plaintiff purchased his drink that the defendant’s truck delivered coca-cola to the store where plaintiff had made her purchase. In holding that there was no evidence to connect the bottle in question with the defendant, the court stated as follows:

“There was testimony to the effect that a truck bearing the name of Jackson Coca-Cola Bottling Company was seen to deliver soft drinks at the store of the defendant Burnham on several occasions, both before and after the purchase by the appellee of the bottle of coca-cola in question. The husband of the appellee also testified that the name of P. L. Borden was on the bottle which he purchased, and there was also testimony tending to show that Simpson county was in the trade territory of the Jackson Coca-Cola Bottling Company, and that plaintiff sold and delivered coca-cola to the retail merchants in that territory. In answer to a direct question, one witness testified that this company was the only one that sold coca-cola in that territory and in the town of Merit during the year 1924, but on cross-examination he admitted that he did not know that to be a fact, and that the statement was merely a conclusion. There was also testimony for the plaintiff that coca-cola was bottled, sold, and distributed by plants located at Laurel and Hattiesburg, and that it was sold on the various trains running through the trade territory in which Merit is located. The burden was on the appellee to show that the bottle containing glass was manufactured or bottled by the appellants, or one of them, and we think the testimony offered failed to meet this burden. It may be that, by contract or agreement, exclusive rights for the sale and distribution of coca-cola in certain territory were allotted to particular companies, but we cannot know that fact in the absence of proof to establish it. The defendant Burnham, who was present at the trial, should have been able to testify as to whom he purchased coca-cola from, but he was not offered as a witness; and, upon the evidence offered for the purpose of showing that the drink was bottled and sold by the appellants, we think the peremptory instruction requested by them should have been granted.” See also Williams v. Coca-Cola Bottling Company, Mo.App., 285 S.W.2d 53; Bilk v. Abbotts Dairies, Inc., 147 Pa.Super. 39, 23 A.2d 342; Wilkes v. Memphis Grocery Co., 23 Tenn.App. 550, 134 S.W.2d 929; Wilkes v. Jones, 24 Tenn.App. 36, 139 S.W.2d 416.

In Leathers v. Sikeston Coca-Cola Bottling Company, Mo.App., 286 S.W.2d 393, the court indicated the type and extent of the evidence necessary to present a jury question in such a case, stating as follows:

“There was ample evidence that defendant sold Coca-Cola to Cubs Cafe. Proof that no one else sold it Coca-Cola was less substantial. It rests upon the testimony of the witness Barber, who said that ‘as far as I know’ they got their Coca-Cola from Sikeston and that they did not get it from any place else that she knew of, that it was usually delivered by a certain truck and by a certain driver (Davis) in the morning and that she paid for it; upon the testimony of defendant’s foreman witness McClellan that he ‘believed’ defendant had an exclusive franchise for Dexter and that he didn’t believe any other company sold Cubs Cafe; upon the fact that the defendant did deliver Coca-Cola to the cafe three days before the incident, and finally upon the fact that the bottle in question was marked ‘Sikeston’ ”.
******
“While the evidence of McClellan, the evidence of Barber, or the marking on the bottle, each standing alone, would fail to connect the bottle with the defendant, when taken together they are mutually supporting and corroborative and their weight was for the jury. Collectively they make up evidence from which the jury could have found or inferred the defendant’s responsibility for the bottle which contained the film.” See also Dunn v. Texas Coca-Cola Bottling Co., Tex.Civ.App., 84 S.W.2d 545; Hart v. Coca-Cola Bottling Co., Ohio App., 188 N.E.2d 817; Elledge v. Pepsi-Cola Bottling Co., 252 N.C. 337, 113 S.E.2d 435; Nigro v. Coca-Cola Bottling, Inc., 49 Wash.2d 625, 305 P.2d 426.

Appellant had the burden of presenting evidence that appellee was the bottler of the drink which caused his injury. To establish this fact appellant relied solely on the fact that appellee distributes coca-cola in the general area where Audie’s Barbecue stand is located and the testimony by Mr. McNamara that although other bottling companies sometimes distribute coca-cola in that area such is not normal procedure. No witness testified that appellee is the only concern which distributes bottled coca-cola in Dallas, or that Audie’s Barbecue received the bottle in question, or any other coca-cola, from appellee. This evidence in our opinion presented only a surmise or suspicion against appellee as indicated in Joske v. Irvine, 91 Tex. 574, 41 S.W. 1059. There was no evidence of probative force that appellee had bottled or had any connection with the coca-cola here in question and the trial court did not err in withdrawing the case from the jury and rendering judgment for appellee.

The judgment is affirmed.


author: GREEN, Chief Justice.

text:
    Baldemar TORRES et al., Appellants, v. R. R. OWENS et al., Appellees.
    No. 1.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 28, 1964.
    Rehearing Denied June 18, 1964.

      Wm. R. Edwards, of Edwards & De-Anda, Corpus Christi, for appellant.
    Ellis Clark, Rockport, M. Harvey Weil, of Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellee.
   GREEN, Chief Justice.

Motion for summary judgment filed by appellees, defendants below, based on their claim of governmental immunity from tort liability, was granted by the trial court, and a take nothing decree entered; hence this appeal. We affirm the judgment.

Appellants, Baldemar Torres and wife, Encarnación Tamez and wife, and Cande-lario Torres and wife, are the parents of three minors who drowned May 25, 1958, while swimming in Aransas Bay near the the public beach at Rockport, Aransas County, Texas. Appellees, being sued in this cause as individuals, were members of the Board of Navigation and Canal Commissioners of Aransas County Navigation District No. 1 at all times in 1957 when the events alleged to have been the proximate cause of the death of the three children occurred. The Aransas County Navigation District No. 1, which includes all of Aransas County and is hereafter referred to as the Navigation District, is a political subdivision of the State of Texas, created under the provisions of Article 8263h, Vernon’s Ann.Tex.St. Its governing body consists of three commissioners elected by the qualified voters of the district.

In April, 1954, the Navigation District employed a firm of consulting engineers to prepare a long range plan for development of additional navigation facilities for both recreational and commercial purposes at Rockport and Fulton and in the area between said towns located on and adjoining Aransas Bay, all in Aransas County. The plan was to include facilities needed immediately and to be needed in the near future. A written report entitled “Development Plan for Additional Navigation and Allied Facilities, Aransas County, Texas” was delivered by the engineering firm to the Board of Commissioners in September, 1954. One portion of this report concerned the suggested development for recreational boating purposes of the Little Bay area. Little Bay was a small shallow body of water, being less than six hundred acres in area, lying between Rockport and Fulton and practically enclosed by the mainland, Fran-dolig Island and a sand bar extending from the mainland to the southern tip of the island, which bar separates Little Bay from Aransas Bay.

The development plans required a large amount of dredging and the creation of an artificial beach as the by-product of such dredging was discussed. From experience these commissioners knew that they were faced with a serious problem in getting dredged sand to remain where deposited to serve the purpose for which it was placed there. They had learned that sand fills in that area even when protected by expensive groins or retaining walls, washed away by the action of wind and water current. The appellees, as commissioners of the Navigation District, discussed among themselves and with their legal counsel the feasibility of dredging and depositing sand on the bar between Little Bay and Aransas Bay to determine whether the sand fill when deposited on the bar would remain or be washed away by wind and current. If the fill did remain, this would be useful in their plans for further development, in accordance with the engineers’ report.

Consequently, appellees as Commissioners of the Navigation District at the meeting of the Board of Commissioners of March 28, 1957, entered into an oral contract with a construction company for this work. No engineer was employed by the district to supervise this dredging. The dredge worked five days, taking the sand from Aransas Bay and depositing it on the bar above mentioned. The total expense amounted to $6,412.50.

Unfortunately, as the result of the dredging operation of April, 1957, a large hole with steep sides, approximately six feet deep, was dredged in the gently sloping bottom of Aransas Bay near the shore line of the bathing beach at Rockport. It was here that the three children drowned.

This is the second appeal of this cause. Originally, appellants filed suit against the Navigation District and the individual commissioners, pleading only general allegations of negligence. The trial court, on a hearing on the pleadings alone, dismissed as to all parties. On appeal the judgment was affirmed as to the Navigation District, the court holding that as a governmental agency it was not subject to tort liability in a suit of this nature. However, the appellate court held that there was no evidence on which the trial court could base its findings that at all times complained of the individual defendants were acting within the scope of their official duties as commissioners, and reversed as to said parties, saying, “The court has, therefore, while considering the pleadings, decided a fact which would defeat plaintiffs in their action. The record affords no basis for the finding of fact.” Torres, et al. v. Aransas County Navigation District No. 1, et al., Tex.Civ.App., 346 S.W.2d 903, n. w. h.

Upon remand to the trial court, appellants amended their petition as to these appellees, claiming individual liability against them, and alleging as specific grounds of negligence and proximate cause the violation by appellees of Arts. 3271a, Sec. 19, and 8263h, Sec. 41, V.A.T.S., in that no registered professional engineer was employed to supervise the dredging or to report on the work after its completion. Appellees filed their motion for summary judgment which appellants duly answered. There is no dispute as to any fact material to the judgment of the trial court. That the commissioners were at all relevant times acting in good faith is not denied. What the navigation commissioners did and how they did it is uncontroverted according to the depositions and affidavits in the record. Issues of fact as to whether appellees were guilty of negligence, and whether such negligence, if any, proximately caused the drownings, are present; however, such negligence questions are not material to the legal issue of immunity from liability of the appellees.

The issue on this appeal is whether the appellees are entitled to the defense of governmental immunity as a matter of law.

Appellants base their appeal on three points of error, to the effect that the trial court erred in granting the summary judgment for the reason that the evidence showed that appellees failed to perform the ministerial duties required of them by Article 3271a, Sec. 19, V.A.T.S. (Point 1) and also by Article 8263h, Sec. 41, VA.T.S. (Point 2), such failure in each instance being alleged to he negligence and a proximate cause of the drownings; and (Point 3) that with respect to the beach building and dredging in question, appellees were acting outside the scope of their authority as navigation commissioners and thus had abandoned any cloak of governmental immunity that may have been available to them.

The statutory provisions relied on by appellants to establish personal liability against the commissioners are as follows:

“After the first day of January, 1938, it shall be unlawful for this State, or for any of its political subdivisions, for any county, city, or town, to engage in the construction of any public work involving professional engineering, where public health, public welfare or public safety is involved, unless the engineering plans and specifications and estimate have been prepared by, and the engineering construction is to be executed under the direct supervision of a registered professional engineer ; provided, that nothing in this Act shall be held to apply to any public work wherein the contemplated expenditure for the completed project does not exceed Three Thousand ($3,000.00) Dollars. Provided, that this Act shall not apply to any road maintenance or betterment work undertaken by the County Commissioners’ Court.” Article 3271a, Section 19, Revised Civil Statutes of Texas (1925), as amended.
“All work contracted for by the navigation and canal commissioners, unless done under the supervision of the Government of the United States, or the proper department or officer thereof, shall be done under the supervision of the engineers; and, when the work is completed according to contract, the engineers shall make a detailed report of the same to the navigation and canal commissioners, showing whether the contract has been fully complied with, according to its terms, and if not in what particular it has not been complied with.” Art. 8263h, Sec. 41, Revised Civil Statutes of Texas.

The record on appeal reflects that an issue of fact does exist as to whether a competent registered professional engineer, if employed to supervise the dredging project, would have authorized the dredging of the hole in question in the close proximity to the bathing beach.

Appellants recognize the.general rule of law that public officers are not personally liable in tort action for acts performed within the scope of their quasi-judicial duties. However, appellants seek to make a distinction in the nature of the navigation commissioners’ duties between their decision to do the dredging work and the actual performance of the work once the decision had been made. They state that the decision to undertake the dredging, provided the commissioners had authority to make such decision, involved discretion on their part and could not result in civil liability. Appellants argue, however, that in the actual performance of the dredging, appellees were confronted with certain mandatory ministerial duties as provided in the statutes quoted for the non-compliance with which they could be held personally liable. Specifically, appellants contend that in proceeding with this dredging without employing a registered professional engineer to supervise the work and report thereon, appello.es failed to perform ministerial duties and were thus removed from the protection of the rule of official immunity. As their authority for their contention, appellants cite the following extracts from Rains v. Simpson, 50 Tex. 495 :

“The application of the principle of immunity from private suit has been a source of difficulty, the practical solution which depends upon whether the given act was ministerial or judicial. As a general rule, in the former case the action will, and in the latter it will not, be sustained.
“The distinction between the two is thus defined: ‘Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.’ ”

We disagree with appellants’ point that the commissioners were acting without discretion and only in a ministerial capacity in their decision to let this contract of dredging to the contractor as they did. The decisions of the commissioners cannot be so separated. The entire matter of deciding on the work to be done, the contractor to do the work, the terms of the contract, whether plans and specifications and supervision by an engineer were necessary, whether the public work involved professional engineering, whether public health, public welfare or public safety were involved, were problems involving judgment and discretion. All of these and other problems involving this work were determined at official meetings, as shown by the minutes of the meetings attached to the affidavits. We do not believe, and are not willing to find, that the law prescribed and defined the duty to be performed by these commissioners with such precision and certainty as to leave nothing to the exercise of discretion or judgment. All of their actions in connection with the dredging in question involved the exercise of discretion and judgment in deciding what should be done. In determining the action to be taken, the undisputed facts show that at all times they received and acted upon the legal advise of their lawyer who was present at all of their meetings.

As stated in 47 Tex.Jur.2d 158, Public Officers, “An executive officer acts in a quasi-judicial capacity when, in the exercise of his functions, he is required 'to pass on facts and determine his actions by the facts found.”

It is not necessary that we determine, and we are not determining, whether under the facts as shown the commissioners violated the terms of the statutes above quoted in connection with the dredging' work. However, if it be established that in failing to employ an engineer to supervise the work in question they did act in violation of the law, such fact would not cause them to lose the cloak of official im-. munity from tort liability in this cause. If the commissioners were acting within the scope of their official authority in the' actions taken by' them with respect to the dredging in question, they cannot be held liable in this suit, regardless of whether they may have misinterpreted or violated a law. Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422 (1961); Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425; Torres, et. al. v. Aransas County Navigation District No. 1, et. al. (Tex.Civ.App., 1961) 346 S.W.2d 903, n. w. h.; Morris v. Nowotny, et al. (Tex.Civ.App., 1959), 323 S.W.2d 301, writ ref. n. r. e.; Reid v. McKinney Independent School District (Tex.Civ.App., 1959), 322 S.W.2d 647 (writ ref. n. r. e.); Harwell v. Ward County (Tex.Civ.App., 1958) 314 S.W.2d 868 (writ ref. n. r. e.) ; Dallas County Flood Control District v. Fowler (Tex.Civ.App., 1955), 280 S.W.2d 336 (writ ref. n. r. e.) ; Gallaway v. Sheppard (Tex.Civ.App., 1935), 89 S.W.2d 417 (writ dis.); Comanche County v. Burks, (Tex.Civ.App.1914), 166 S.W. 470 (writ ref.) ; Wright v. Jones, 14 Tex.Civ.App., 423, 38 S.W. 249 (writ ref.).

In Campbell, et al. v. Jones, et al., 153 Tex. 101, 264 S.W.2d 425, a school teacher, who had been discharged because the board of trustees ruled that she could not qualify under the minimum standard set by the State Superintendent, sued the trustees individually on her contract. Prior to filing the suit, the State Board of Education at a hearing determined that the school hoard had been wrong and that the contract was valid. In the meantime, however, the trustees had employed another teacher and had exhausted the district funds from which teachers’ salaries were paid; hence, the teacher could not recover from the Board. In holding that the individual trustees were not liable, although an erroneous ruling had been made from which the plaintiff had suffered damages, the court quoted with approval from Mechem on Public Officers thus:

“§ 718. School Officers not liable for Errors in Judgment.- — Being required by law to exercise their judgment and discretion in the management and control of the schools within their jurisdiction, it is well settled that, like other quasi-judicial officers, they cannot be held liable to an individual for any injury which he may have sustained by reason of any error of judgment, however great, committed by them while acting honestly and in good faith within their jurisdiction.” Emphasis ours.
“§ 719. Are liable only when actuated by malice. — Such officers are, however, held liable when, and only when, in the exercise of the powers conferred upon them, they have acted wilfully or maliciously.”

Chief Justice Hickman proceeds to say:

“That is the rule in this State. Comanche County v. Burks, Tex.Civ.App., 166 S.W. 470, error refused; Wright v. Jones, 14 Tex.Civ.App. 423, 38 S.W. 1249, error denied; 34 Tex.Jur., pp. 466 et seq.”

In Reid v. McKinney Independent School District, supra, suit was brought by a contractor against the school district and the trustees individually for alleged wrongful termination of a construction contract. In holding the trustees not individually liable, the opinion quoted from 37B Tex.Jur. 253, Sec. 98, the rule as follows:

“When acting within the scope of their duty, school officials are responsible only for injuries resulting from corrupt motives, but not from mistakes of law or judgment.”

In Gallaway v. Sheppard, supra, the State Comptroller was held not personally liable when he wrongfully issued a deficiency certificate to the damage of an individual. We copy from the opinion as follows :

“In the issuance of such deficiency certificate, the comptroller was merely performing an act within the scope of his public duties, and owed no duty to appellant in such issuance different from that he owed to all the public. As such public officer in the discharge of his official duties, mistakes of judgment, or improper construction of the laws defining his duties, do not give rise to a personal action against him, though some private individual may suffer loss as the result thereof. Such is the general rule founded upon sound public policy.”

We quote from the opinion in Dallas County Flood Control District v. Fowler, supra, the following:

“The authorities clearly and conclusively hold that members of the Board of Directors or Supervisors of a governmental agency are not personally liable for acts of commission or omission in performance of their official duties. 30 Tex.Jur. 261 says: ‘As a rule, municipal officers are not personally liable for acts performed within the scope of their public duties, * * Public officials are liable personally when and only when, in the exercise of the powers conferred upon them, they have acted wilfully, maliciously or when actuated by malice.”

Comanche County v. Burks, Tex.Civ.App., 166 S.W. 470, writ ref., quoted with approval by the Supreme Court in Campbell v. Jones, supra, is a case in which the members of the Commissioners’ Court were held not personally liable where they sold county lands and improperly invested the proceeds in violation of the Texas Constitution. We quote from the opinion as follows:

“The principle of the cases last noted may be said to be dependent upon the very generally recognized rule that officers, to whom have been committed the power of acting in a judicial or quasi judicial capacity, cannot be held liable for an honest, though mistaken, exercise of their powers.”

The only question remaining for our determination is: Were appellees acting within the scope of their official duties .as Navigation Commissioners with respect to the dredging in question? Appellants by their third point contend that they were not. We hold that the undisputed facts show that they were so acting.

As heretofore stated, the commissioners took steps authorizing the performance of, and completed, certain dredging and deposit of a spoil levee which was part of an overall navigation project, clearly within the purview of their power and authority. The levee being thrown up was part of and was useful in the operation of the district’s waterways. The commissioners were not building an apartment house or doing some other work entirely disconnected with navigation purposes. The work being performed was a first step in a project which was ultimately completed by the district, as shown by affidavits and depositions in the record.

The Navigation District operates under the provisions of Article 8263h, V.A.T.S., and certain other applicable statutes, such as Article 8247a and 8247b. The authority for such statutes comes from the conservation amendment to the Constitution, Article 16, Section 59(a), Vernon’s Ann.St.

Under the provisions of these statutes, the project of which this dredging was a part was clearly work which the commissioners were authorized to perform within their official duties. It has already been established by the authorities cited above that if acting in good faith they misinterpreted or violated the provisions of the law in performing their duties as they honestly understood them to be, this would not deprive them of their immunity from tort liability.

We find that the record shows without dispute that at all times when the acts complained of by appellants occurred, appellees were public officials of a state agency acting in good faith on advice of legal counsel in a quasi-judicial, discretionary capacity within the scope of their official duties, and are entitled to immunity from liability in this cause.

The summary judgment was properly granted.

Affirmed.


author: MOORE, Justice.

text:
    AMERICAN LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Floyd SMITH, Appellee.
    No. 43.
    Court of Civil Appeals of Texas. Tyler.
    May 28, 1964.

      T. G. Davis, Law Offices of Tom Bank-head, Carthage, for appellant.

      James R. Strong, Long, .Strong, Jackson & Strong, Carthage, for appellee.
   MOORE, Justice.

This suit was originally brought by Floyd Smith, deceased, who died before trial. The appellee, Willie Belle Carter, Independent Executrix of the Estate of Floyd Smith, was substituted as plaintiff and continued the prosecution of this suit against appellant, American Life and Accident Insurance Company, in the County Court of Panola County, Texas, seeking recovery for hospital expenses incurred by deceased during his terminal illness under two separate policies of hospitalization insurance. Trial was before the court, without a jury, resulting in a judgment for appellee in the amount of $315.40 upon the policies, plus 12% penalty thereon in the amount of $37.80, and attorney fees in the amount of $250.00, from which judgment appellant has perfected this appeal.

The first policy issued to the deceased became effective on November 28, 1961. Part III, titled “EXCLUSIONS, LIMITA-11ONS AND REDUCTIONS,” reads as ■follows:

“ * * * any loss resulting wholly or in part from tuberculosis, cancer, anemia, diabetes, hernia, arthritis; hemorrhoids, high blood pressure, or any disease of the liver, gall bladder, heart or circulatory system, or any disease of any organ of the genitourinary system, shall be covered only if the cause thereof originates after this policy shall have been in continuous force for a period of six months from date of issue.”

The second policy became effective March 28, 1962. Under Part V, titled “REDUCTIONS AND EXCEPTIONS,” paragraph 3 reads as follows:

“ * * * any loss resulting wholly or in part from tuberculosis, cancer, anemia, diabetes, hernia, arthritis, hemorrhoids, high blood pressure, or any disease of the liver, gall bladder, heart or circulatory system, or any disease of any organ of the genitourinary system, shall be covered only if the cause thereof originates after this policy shall have been in continuous force for a period of six months from date of issue.”

The trial court filed findings of fact and conclusions of law which, among others, found that the confinement of Floyd Smith to the hospital from December 31, 1962, to the date of his death on January 17, 1963, was caused by a sickness, the cause of which originated while the policies above referred to were in force and effect and that the cause of the deceased’s sickness originated more than thirty days and more than six months after the effective date of each of said policies of insurance.

The undisputed testimony shows that deceased had trouble with his heart and circulatory system in October and November, 1961, for which he was hospitalized for a period of approximately seven days; that thereafter on November 28, 1961, he purchased the first policy from appellant; that the second policy was purchased on March 28, 1962; that the application on the second policy revealed the fact of previous heart trouble; that after being discharged from the hospital in November, 1961, he was treated for a chronic heart condition until about three months before being admitted to the hospital for the present illness.

A summary of the testimony of Doctor W. C. Smith, who was deceased’s treating physician during his terminal illness, and the only medical witness, shows that on the afternoon of the 31st of December, 1962, deceased came to his office at 2 or 3 o’clock with a complaint of nausea, vomiting and abdominal pain, acute and severe. He urged him to go to the hospital but he was reluctant to enter the hospital. He testified that he thought at the time deceased had an obstructing ulcer and gave him medication to relieve his nausea and he returned home. Late in the evening or that night his condition worsened and he was admitted to the hospital; that when he was examined after being admitted to the hospital he found on x-ray that deceased had a non-functioning gall bladder, accompanied by nausea and vomiting. That he developed a fever and then developed what he thought to he enumnitis or bronchitis at least. He also found that deceased had heart changes which signified chronic arteriosclerosis. He testified that it was his impression that the nausea and vomiting caused a strain upon his heart which, because of lack of heart reserve, threw him into heart failure. He further testified that the cause of the nausea and vomiting was the non-functioning gall bladder. He testified that, from a medical standpoint, deceased had reduced cardiac reserve, else he would not have gone into heart failure as a result of his acute illness ; that on the last admission the electrocardiogram, as compared to the one in 1961, showed improvement of the schemic condition but continued to show some evidence of chronic heart disease; that he had an enlarged heart; had fluid on his lungs; his liver was enlarged, had considerable gas and nausea and pain in the upper abdomen; that before admission to the hospital, he had not diagnosed his illness as heart failure; that after being admitted to the hospital he was given treatment for all of his ailments; and that in his opinion the acute illness resulting from the non-functioning gall bladder causing nausea, vomiting and straining, finally precipitated heart failure, causing his death seventeen days after confinement.

Appellant contends that since deceased’s heart and circulatory disease originated prior to the effective date of either of the policies that the company is not liable for the loss occasioned by hospitalization because such hospitalization resulted wholly at least or in part from a disease of the heart or circulatory system which originated before the effective date of the policies.

Appellee, on the other hand, does not deny that deceased had trouble with his heart and circulatory system and was hospitalized therefor in October, 1961, but contends that the hospitalization during his terminal illness did not result wholly or in part from a disease of the heart or circulatory system but was a direct result of a non-functioning gall bladder and enlarged liver which caused a gastro-intestinal disturbance, bringing on nausea and vomiting, the effect of which served only to further weaken the heart, precipitating the death of deceased.

Appellant assigns four points of error, wherein it is contended that there is no evidence to support the trial court’s finding that the sickness, resulting in the hospitalization, originated while the policies were in force and effect and that such sickness originated more than six months after the effective dates thereof, and alternatively that such findings are against the overwhelming weight and preponderance of the evidence.

There being no evidence of any pre-existing disease of the gall bladder or liver, and the policies having been in effect for more than six months before this sickness originated, such sickness and hospitalization, if caused by a gall bladder or liver ailment, would have been covered by the terms of the policies. But, appellant having plead an exclusion, the burden was on the appellee to prove that the hospital expenses, insured against by the policies, were not wholly or partly a result of a disease of the heart or circulatory system. Although the broad findings of fact as filed by the trial court did not specifically find that the loss did not result wholly or partly from a disease of the heart or the circulatory system, since the court found that the sickness causing the hospitalization was covered by the policy and thereupon entered judgment for the appellee, it will be presumed that the court found that such loss did not result wholly or partly from the excluded risks and the judgment must be upheld if same is supported by any evidence of probative force. In considering the sufficiency of the evidence in support of both the expressed findings and presumed findings under the “no evidence” points, we are obligated to construe the evidence in the light most favorable to the judgment and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold the judgment. Bradshaw v. Holmes, Tex.Civ.App., 246 S.W.2d 296; Dunning v. Bibb, Tex.Civ.App., 339 S.W.2d 358. See also Thompson v. Lee Roy Crawford, 149 Tex. 357, 233 S.W.2d 295.

The medical testimony established, without doubt, that the deceased died as a result of a coronary occlusion, commonly referred to as heart failure. But the cause of death is not the question here. The question is whether or not the hospitalization of deceased during his terminal illness resulted from a disease covered by the policy and, if so, whether or not it was wholly or partly the result of a disease of the heart or circulatory system. The testimony of Doctor Smith, we think, provided sufficient evidence to authorize the trial court to find that the hospitalization of the deceased and the resulting loss was caused by the gall bladder and liver ailment and the complications flowing therefrom and was not caused either wholly or partly by a disease of the heart or circulatory system. Although the doctor testified that at the time deceased was hospitalized he was suffering with a chronic heart and circulatory disease, it must also be remembered that the doctor testified that the gall bladder and liver ailment, in his opinion, was so acute that it aggravated the heart and but for the gall bladder and liver ailment there would have been nothing to precipitate the failure of the heart. In other words, as we view the testimony, we believe there was sufficient evidence to form the basis for the trial court’s conclusion that the real or compelling cause of the hospitalization and the resulting loss was the acute gall bladder and liver ailment, which, incidentally, after having manifested itself to an acute degree, naturally aggravated and inflamed other organs of the body, including the heart. Seldom does one have a serious physical ailment not complicated by other diseases or physical disturbances; and to hold that proof of a pre-existing disease, or some concurrent ailment, would prevent recovery of hospitalization benefits caused wholly by another disease or the aggravating effects flowing therefrom, during the period when the last disease was the sole then existing cause of the hospitalization, would require a strict and narrow construction of the policy by which we would reach an unreasonable result. The terms and conditions of the policy, in our opinion, are not subject to such a construction. American Casualty & Life Co. v. Butler, Tex.Civ.App., 215 S.W.2d 392; National Life Insurance Co. v. Bean, 15 Ga.App. 661, 84 S.E. 152.

Though appellee had the burden of proving that the hospitalization loss did not result in whole or in part from an excluded disease, appellee did not have the burden of proving that the excluded disease had no effect whatsoever upon the hospitalization loss. The question as to whether or not the hospitalization loss was partly the result of an excluded disease, is a question of causation; the question being whether or not the excluded disease contributed to the loss to such an extent that it can be said to have been an efficient, exciting or contributing cause, as distinguished from a mere trivial cause. Appellee, of course, had the burden of showing that the excluded disease was not a contributing cause of the hospitalization loss. Whether such excluded disease was a contributing cause is a question of fact to be determined by the court or jury. Texas Indemnity Insurance Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Globe Indemnity Co. v. Matthews, 5 Cir., 131 F.2d 433. The evidence raised the issue and the trial court, being the trier of the fact, concluded that the hospitalization loss did not result partly from the excluded disease. Viewing the evidence in the light most favorable to the judgment and disregarding all evidence to the contrary, as we are required to do, we are of the opinion that we cannot say that there is no evidence to support the judgment and therefore appellant’s points one -and three are overruled.

Consideration has been given appellant’s points two and four, contending that the evidence is so contrary to the great weight and preponderance of the evidence as to be so manifestly wrong and unjust, and after having considered and weighed all of the evidence in the case, as we are required to do under the ruling in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we have concluded that the judgment is not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust and therefore overrule appellant’s points two and four.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY et al., Appellants, v. Linda Lou ROSE, by Next Friend, et al., Appellees.
    No. 14143.
    Court of Civil Appeals of Texas. Houston.
    May 28, 1964.
    Rehearing Denied June 18, 1964.

      Murfee, Hoover & Stillwell, Monroe Northrop, Houston, W. M. McDowell, W. M. Dowdy, Dallas, of counsel, for appellants.
    W. W. Watkins, Curtiss Brown, W. James Kronzer, Houston, Ralph W. Gilbert, Angleton, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellees.
   BELL, Chief Justice.

Linda Lou Rose, an eight year old girl, through next friends and guardians, Charles E. Rose, Jr., et ux., brought suit against Missouri Pacific Railroad Company and W. E. Smith, one of the Railroad employees, to recover damages for injuries sustained by her when an automobile driven by her father was in collision with a “gondola” car of the Railroad Company at a point in the City of Angleton where the railroad lines cross State Highway 288. The collision occurred about 3:20 a. m. on June 1, 1961. In the collision the child’s mother and father, three of the Rose children and a friend of the Roses’ were killed. Suit was brought on the cause of action based on the personal injuries to Linda Lou and also on her cause of action for damages for the loss of her parents. After the jury verdict the court granted severance as to the cause of action for damages for loss of her parents and granted a new trial as to it. Based on the jury verdict, insofar as it involved the cause of action for injuries to Linda Lou, the court rendered judgment against appellants, jointly and severally, for compensatory damages in the amount of $125,000.00 and exemplary damages against the Railroad Company in the amount of $75,000.00.

Highway 288 runs from the City of Freeport to the City of Houston, in a south-north direction. It has four lanes for traffic. It is 56 feet in width at the place where the collision occurred. The Railroad, at the points here material, runs generally in an east-west direction. At its crossing with Highway 288 it crosses at a slight angle. The speed limit on the highway at and approaching the crossing is 30 miles per hour. The crossing is in the City of Angleton. At the crossing the railroad has red flasher signals to warn travelers on the highway of the approach of trains. There are ordinary street lights in the area near the crossing and also in the area shortly away from the crossing erected on fairly tall poles are stronger lights. These high bright lights are away from the crossing but would be east of the crossing and between the crossing and the point from which the train would approach. We note these stronger lights erected about the height of a locomotive headlight because of the distinct possibility of a traveler not being able to distinguish between them. Too, we mention such street lighting because of the distinct possibility of the blending of the locomotive light with the surrounding lights.

The basic general theory of recovery is that the defendant Railroad Company had a block signal system that supposedly controlled the movement of its trains across the highway in question that was so designed and operated that it would not give adequate warning to the traveling public of the presence or approach of trains crossing the highway. The negligent operation of the system, appellees contend, made it necessary that the Railroad afford devices other than the red flasher signal at the crossing to warn the public of the approach of trains and the Company failed to provide necessary warning.

To understand the case it is necessary to review, by way of summary, the evidence as to the operation of the block signal system and particularly its relation to the red flasher signal at the crossing.

The main line of defendant Railroad Company runs through the City of Angle-ton. To the west of the point where the tracks cross the highway at a distance of about 500 or 600 feet the Houston and Brazos Valley main line crosses the main line of defendant Railroad. The H. & B. V. line runs in a north-south direction. There are block signals throughout the area surrounding the railroad intersection that are designed to protect against collisions between trains of the two railroads as well as to protect trains engaged in switching operation in the Angleton area from other trains of both companies that might come into the switching area on the main line. The signals can be set by remote control from a Central Traffic Control (CTC) office maintained by the defendant Railroad Company at Vanderbilt, Texas. When the signals are thus set, they must be changed by the CTC operator. Too, it is noted that if the top disc on a signal is red and a train passes both the lower and top discs become red. Until only a short time prior to the collision in question the CTC office had been in Angleton. When a train is engaged in switching operations, as was the train here involved, its crew can obtain from CTC what is known as “track and time” within a given area. This means that a member of the crew, by telephone, calls the CTC operator and asks for, and is given, “track and time.” When such is given the CTC operator by remote control turns all signals surrounding the area, wifhin which switching is being done, to a red color. This means that all trains coming into the area must stop, call the CTC operator, and get clearance before entry.

In Angleton 64^4 feet east of the east curb line of Highway 288 is a signal block known as an A-Block. It is an absolute interlocking block. It is on the main line of defendant Railroad Company. The signal facility attached to it consists of two discs on the upper reach. The top disc controls movement of trains on the main line, except for those engaged in switching. When the top disc is red, such a train must stop and get clearance to proceed from the CTC operator. When a train has track and time the disc will be red. The lower disc controls the movement of a train on track and time. If it is lunar in color this gives clearance to the train on track and time to proceed without stopping. The lunar color also shows that the switches are properly aligned so the switching train may be assured of going into the proper siding from the main line. If, however, both the lower and upper discs are red all trains are supposed to stop and get clearance from the CTC operator before proceeding. This last statement is subject to one of the disputed issues in this case, that is, whether a certain directive of the trainmaster for defendant authorized the running the red over red condition of the interlocking A-Block after a train on track and time had stopped, without getting' a clear signal from the CTC operator.

In addition to controlling the movement of trains the interlocking A-Block signal, which is A-Block No. 3203 is wired electrically with the flasher control signals at the highway crossing. If the lower disc is lunar regardless of the color of the upper disc, when a train passes a point about 2700 feet east of the crossing the flasher control signal at the crossing at Highway 288 will be activated. If, however, both discs on A-Block 3203 are red (The expression red over red is used in the record to describe this condition) the flasher signal at the crossing, which is of course placed there to warn highway travelers of the approach of trains, will not be activated until some time after the activation point located at A-Block 3203 is reached. We used the expression “some time after” because there is evidence showing a four seconds lag is contemplated by defendant between the time of reaching the activation point and actual activation of the flasher signal at the crossing. The signal system thus has a dual purpose, that is, to be so operated as to protect defendant’s and H. & B. V. trains and also activate flasher control signals at highway and street crossings.

There is evidence that prior to 1957, when the discs of A-Block 3203 were red over red, a train approaching was required to stop and then telephone the CTC operator for clearance and could not proceed until it was given a clear signal. When the clearance was given' by the CTC operator, this would activate the flasher signal also. Here we should note that there are A-Blocks that are not interlocking. They are the A-Blocks controlling traffic entering into a switch or siding. A-Block 3203 was an absolute interlocking block affecting traffic intersecting another railroad. Prior to 1957 a train approaching an absolute block, as distinguished from an interlocking block, could stop and proceed slowly without getting clearance from CTC. This was not true, however, as to an absolute interlocking block. As to an interlock the train was required to stop when the discs showed red over red and remain stopped, until a clear signal was give:, by the CTC operator and also a flagman would be sent west to the H. & B. V. intersection if the red over red was on an interlock.

In 1957 Mr. J. B. Hobbs, the trainmaster at Kingsville, sent a directive to the CTC operators at Vanderbilt and Angleton, the Train Dispatchers at Kingsville, and the Trainmen and Enginemen. The directive reads as follows:

“We are having too many serious delays to important trains resulting in considerable amount of unnecessary overtime, as well as the delay, account not being properly understood by all concerned the requirements of Rule 375 and 402 in the handling of track and time limits in C.T.C. territory.
“I want all concerned to read Rules 375 and 402 and get lined up on the proper method of handling trains in C.T.C. territory when granted track and time limits.”

It is appellees’ position that this directive authorized and directed that trains on track and time not stop when the signal discs were red over red and get clearance from the CTC operator before proceeding, but to disregard the red lights and proceed slowly through them after stopping. The position of defendant Railroad is that the directive referred only tc ordinary A-Blocks and not the interlocking type such as No. 3203, and that under the operating rules and State law a train may not proceed through an interlocking block showing red over red but must get clearance from the CTC operator or stop and send a flagman to the intersecting railroad tracks. Operating Rule 402, which is so much referred to in the record and which the directive called to be observed, is not in evidence. We gather from the record, however, that it provided that trains on track and time need not at ordinary A-Block signals, when the discs were red, get clearance from the CTC operator but could proceed after first stopping at the signal. Whether Rule 402, which apparently dealt with switching by trains on track and time, purported to cover absolute interlocking blocks, is not clear to us. More observations concerning this will be made later. Suffice it here to say appellees contend the directive of Mr. Hobbs, as shown by all the evidence, does cover both the ordinary and interlocking block signals.

Shortly after the dissemination of Mr. Hobbs’ directive in 1957, Mr. U. C. Waigand, a signal maintainer for the defendant Company at Angleton, wrote Mr. G. J. Heidemann, the signal supervisor at Kingsville. The letter is as follows:

“This is to call your attention to Circular D-18 of January 18, 1957, by J. B. Hobbs.
“You will note that it is merely a general statement and gives no details. From what we hear we gather that Mr. Hobbs wants trains to be operated by the unrestrained use of Rule No. 402.
“Perhaps that should not be any concern of ours in the Signal Department, however, from past experience I know that we can look forward to switches being run through which is of concern to us. Also, the fact that crossing signals very often do not operate as intended when trains run red signals is another thing that can cause trouble that would require an explanation from us. Was wondering whether Mr. Hobbs has taken into full account the following part of Rule No. 402, ‘Rules 104(a), Rule 104(c), etc.’
“Also whether he is aware of the fact that the part which reads ‘to hold track limits for the time, etc.’ is not actually true as applied to dual control switches in that by putting switch on hand throw and leaving lined to side track does not hold all signals red within the track limits.”
Following receipt of the letter, Mr. Heidemann discussed it with Mr. Hobbs. Mr. Hobbs then wrote Mr. Waigand the following letter:
“Referring to your letter to Mr. G. J. Heidemann at Kingsville January 21, 1957, calling his attention to my circular D-18 of January 18, 1957, in which you stated ‘You will note that it is merely a general statement and gives no details. From what we hear we gather that Mr. Hobbs wants trains to be operated by the unrestrained use of Rule 402.’
“Rules 375 and 402 referred to in my Circular D-18 of January 18, 1957 are very plain and clear and is what is required by the Missouri Pacific Railroad in the operation of CTC and needs no detailed statement from me or anyone else.
“You, to my knowledge, have never been examined on the Uniform Code of Operating Rules effective May 1, 1950 and are not qualified to instruct anyone on the operation under the Uniform Code of Operating Rules.
“You are required to instruct Control Operators on the operation of the CTC board only.
“Effective at once, you must not instruct any operator, or any operator must not accept instructions from you or anyone else which is contrary to the Uniform Code of Operating Rules.
“Please be governed accordingly.”

The evidence bearing on the events of the day of the collision shows that the train crew operating the train involved in the collision brought some empty freight cars from Houston to Angleton. Mr. W. E. Smith was the conductor in charge. He is one of the appellants. At least some of the cars were placed on a siding called “Dow Siding”. It is located west of the highway crossing where the collision occurred. The train in going to the siding had to pass interlocking A-block 3203. The effect of it passing this signal block was to make both the lower and upper discs show red. As the train passed the depot at Angleton on its way to Dow Siding, Mr. Smith got his work orders. At some near point he went to the telephone and called the CTC operator at Vanderbilt for “track and time”. He talked to a Mrs. Phillips, a CTC operator, who gave him track and time until 4 a. m. from the South Danbury to South Angleton (also called North Edmond) stations. Mrs. Phillips then set the board at CTC to show all signals red. There is also sufficient evidence from which it may be reasonably inferred that she thereafter made no changes in the signals so as to give the train a lunar color on the lower disc at A-Block 3203. The crew then took the train to a team track some distance past the crossing. There it picked up four gondola cars that were to be placed on a siding west of the crossing. The gondola cars were being pushed by the engine, they being in front of the engine. These cars varied in length but together they measured, as estimated, from about 2Í5 to 225 feet. They were of low silhouette, were painted black, and some evidence of probative value showed the stationary headlight on the engine shone above them and cast dim, if any, light directly on them. Several hundred feet east of the crossing, the exact distance not being shown, the crew left the train standing and went to the Taco House for breakfast. They remained there about 45 minutes. The crew then mounted the train and proceeded westward. There is a dispute in the testimony as to the condition of the lower disc on A-block 3203 as the train approached. There is sufficient evidence of probative force, however, that it was red as was the upper disc. There is evidence from some members of the crew that when the train was several hundred feet from the crossing the flasher signal at the crossing was working. They purported to see the reflection from the side as they approached. If the discs on this A-Block were red over red the flasher signal could not have been working until after the head of the train crossed the activation point at the A-Block. The train under the undisputed evidence did not stop at the A-Block. The speed at which it was moving immediately prior to the collision and as the train approached has been variously estimated. It was estimated as moving 1 to 2 miles per hour, 4 to 5 miles per hour, and a member of the State Highway Patrol, who came to the scene of the accident immediately following it, stated the engineer told him it was moving at 10 to 12 miles per hour at the time of the collision. As the train approached the crossing one of the brakemen got off and proceeded at rapid pace to the crossing. He had a white lantern. From the edge of the pavement he looked north and saw no automobiles approaching. He looked to the south and saw some headlights approaching from down the road. He could not estimate the distance but stated he felt the train could clear the crossing before the automobile arrived. He did not flag the crossing but signalled the engineer to come ahead. Just as he mounted the ladder or step on the lead end of the lead car the collision occurred. He did not see the car after first observing it down the highway. No crew member admitted seeing the car except as “a flash” just prior to the collision.

The point of impact was shown to have been in the lane of traffic next to the center line of the highway as the car proceeded north. The front of the car hit the front step on the lead end of the lead gondola car on the south side. Two gondola cars were derailed. The mark evidencing the beginning point of the derailment was a number of feet west of the center line. The cars proceeded on west where they were derailed on the west side of the highway. The train went 65 feet after the collision before stopping. There were no skidmarks indicating any effort by the driver of the automobile to stop. An expert witness testified as to speed, basing his opinion on the damage to the automobile and train. The highway patrolman also gave his opinion. They gave as their opinion that the automobile was going SO miles per hour. He was in a 30 mile zone. The highway patrolman also testified, however, that the same amount of damage could he done in a collision such as this if the speed of the automobile was 20, 30 or 40 miles per hour. On speed, appellants introduced a young man named Wehrly who on the morning of the collision was returning from a date he had at Lake Jackson. He was traveling on the “Old Clute Road” to the west of Highway 288 which parallels said highway. The two were estimated to be about 300 yards apart at that point. About a mile from the railroad he looked toward the Highway 288 and saw only one automobile. He had just come out of a dense fog and was going about 50 miles per hour. He decided to increase his speed and catch up with the automobile. He caught up with it and he was going between 70 and 75 miles per hour. He followed the car about 1/2 mile and then turned on the "Old Cemetery Road” at the bowling alley. That is the last time he saw the automobile. He drove about 300 feet to Highway 288 and stopped for a stop sign. About that time he heard a loud crash. He went down the highway to the point of the collision. As he approached he could hardly see the black railroad cars. He testified he had seen, while he was on Old Clute Road, the flasher signal at the crossing on Front Street, one block west of the crossing on 288. The flasher signals at both crossings, other evidence showed, were wired to come on at the same time. The witness was impeached by a prior inconsistent statement concerning his observation of the flasher signal on Front Street. Also he was impeached by a prior statement that as he neared Cemetery Road he had slowed down because' he had run into some fog which was between him and the Front Street crossing. He testified when he caught up with the car he was going 70 miles per hour. He was unable to identify the automobile as the one he had speeded up on so he' could catch it as the car involved in the collision. Between the Old Cemetery Road and the crossing there were several roads leading off to the east from Highway 288 where the automobile could •have turned. He could not say whether the automobile turned off. He could not say what kind of an automobile it was or how many persons were in it.

There were some other witnesses who did not see the collision but who came to the scene very shortly afterward, and they testified the flasher signals were working when they arrived at the scene. At this time, however, the train was at a point past the mid-line of the highway. One witness testified he arrived momentarily after hearing the noise made by the collision and did not see the flasher signal working.

There is evidence that as the train moved to the crossing after the brakeman sig-nalled it to come on, the engineer gave two short blasts on the whistle. There is evidence the bell on the engine was ringing. However, there is also evidence from witnesses who described what they heard immediately before the collision, such as the noise caused by switching movement and they did not state in their testimony thai they heard a bell or whistle.

Mr. Waigand, who formerly worked for the defendant Company, and who wrote the letter above set out to Mr. Heidemann, testified about the operation of the flasher signal. He stated that standard practice recognized a four second lag between the time the flasher signal was activated and the time the train reached the activation point. Too, he stated the activation point about 2700 feet east of the crossing was designed to give travelers a 20 second warning of the approach of trains, that is, in addition to the four second lag it was contemplated the flasher signal would be working for 20 seconds before the train would reach the crossing. On July 8, 1961, he made an observation of a train moving across the highway. When the discs were red over red the train passed the activation point 64j4 feet east of the crossing and the flasher signal did not come on until the foot board of the engine was over the curb. Other evidence had shown there had been no change in the signal system since the collision. The engine was going not much over walking speed. The engine had been stopped back of A-Block 3203. When he wrote the letter to Mr. Heidemann he definitely had A-Block 3203 in mind. He acknowledged receiving the above quoted letter from Mr. Hobbs which was in reply to his letter to Mr. Heidemann. Thereafter trains passed through red lights at this block. There was a hand control at the block that could be used to start the flasher signal. Mr. Waigand, sometime prior to the collision, had been discharged by the defendant Railroad for insubordination.

Mr. W. L. McKinney worked for defendant Railroad at Angleton. He had worked for this railroad 22 years. He, at the time of trial, was a CTC operator. When a train comes to an A-Block where the discs are red over red it is supposed to stop and then proceed slowly. Before Mr. Hobbs’ directive a clear signal had to be obtained. In 1957 Mr. Hobbs came to Angleton and gave them rules and told them about “track and time”. He told the operators that when a train had track and time they should stop giving them clear signals. We suppose this testimony is reasonably susceptible to the construction that where a train was on track and time that Mr. Hobbs instructed the operators not to give a clear signal but the train on track and time could proceed slowly through the red signals after first stopping. In this way switching could be done faster because a crewman would not have to take the time to go to a telephone and call CTC for a clear signal.

Mr. Hobbs in effect stated his directive applied only to ordinary A-Blocks and not to interlocking blocks. Too, he stated the directive and rules referred to in it did not authorize running any red signal without first stopping. The directive merely had to do with red signals at switches. The switches could be aligned manually.

Mr. Heidemann, the signal supervisor, testified the activation point for the flasher signals was set back far enough to give 20 seconds warning before the train would occupy the crossing. He testified this A-Block was not in track and time territory so the track and time limits do not apply to it. If the discs were red over red the train would have to stop and get clearance. It is not safe to put the activation point only 63 feet (64^4) from the crossing. He remembers the letter from Mr. Waigand. He discussed it with Mr. Hobbs. Mr. Hobbs asked him whether if the discs at this signal were red over red the flasher signal would not work until the signal was reached. Mr. Hobbs knew there was a connection between this signal and the flasher signal at the crossing according to the witness. He tried to explain but Mr. Hobbs wouldn’t grasp it.

Appellants by their complaint attack the court’s action in not granting an instructed verdict, in submitting the basic negligence issues and in not rendering judgment for them non obstante veredicto. These all involve whether there was any evidence of probative force showing that acts were done which constituted negligence by appellants. These are issues and answers attacked:

1. Issue No. 7 where the jury found the railroad and its employees failed to operate the block system as would an ordinarily prudent person.
2. Issue No. 13 where the jury found the discs were red over red as the train approached.
3. Issue No. 14 where the jury found the train failed to stop at the signal and remain stopped until the signal was cleared.
4. Issue No. 15 finding such act was negligence.
5. Issue No. 17 finding Block Signal 3203 was located closer to the highway than was reasonable.
6. Issue No. 19 where the jury found this A-Block was wired in a,manner so the flasher signal would not be activated until the train reached the A-Block when the discs were red over red.
7. Issue No. 20 where the jury found such was negligence.

In this opinion where we discuss no-evidence points we have viewed the evidence most favorably to the plaintiff and only that favorable to her, and where we discuss whether the jury’s answers are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong, we have considered all of the evidence both that which militates against plaintiff and that which supports the verdict for her. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

While we have not above recited all of the evidence, we feel what we have stated is reasonably to be deduced from the testimony. There were conflicts in the evidence but the jury has resolved those conflicts. We are of the view that the ultimate facts as found by the jury are amply supported by evidence of probative value.

We are also of the view that the answers are not contrary to the overwhelming weight and preponderance of the evidence.

Issues 9, 11, 22, and 23 are also attacked as being without support in the evidence and as being insufficiently supported. By its answer to Issue No. 9, the jury found defendant Railroad failed to give sufficient warning of the approach of the train. By its answer to Issue No. 11, it found Allen Nelson, the brakeman, failed to properly flag the crossing. By its answer to Issue No. 22, it found the Railroad failed to station a flagman on the south side of the crossing and its answer to Issue No. 23 found this to be negligence.

We are of the view that such issues are sufficiently supported by the evidence. From the evidence recited the conclusion could readily be drawn that the automatic flasher system did not work in sufficient time to itself give warning to the traveling public. Too, the conclusion could be drawn that the system as designed was such as to inform the defendant Railroad that such might be the case and that other warning would be necessary. This particularly in light of the fact that the engine was something over 200 feet east of the lead end of the first gondola car; that it was night; that the gondola cars were black and of low silhouette and the headlight of the engine shone over them. The evidence shows that Nelson was on the north side of the crossing at the edge of the pavement. He saw the headlights of the automobile coming. He did not know how far away or how fast it approached, but he merely judged the train could cross. He had a lantern with which he signalled the engineer to proceed, but he did not wave the lantern to and fro to attract attention.

We think, apart from the matter of gross negligence that we will discuss later, the real contention of appellants is that none of their negligence was a proximate cause of the collision but the collision as a matter of law was caused only by the negligence of the driver of the automobile. While, of course, contributory negligence is not in the case since the little girl, to whom negligence cannot here be imputed is suing only for damages for her own personal injuries, a negligent act of the appellants must have been a proximate cause. The attack is that there is no evidence that any act of negligence, assuming negligence, was a proximate cause and alternatively that the jury finding of proximate cause is contrary to the overwhelming weight and preponderance of the evidence.

Proximate cause consists of foreseeability and causation. We find no difficulty in finding sufficient evidence to support a conclusion that appellants could have reasonably foreseen that their acts might result in a collision between the train and some one using the highway.

Appellants urge, however, that in fact the only cause of the collision was the conduct of Mr. Rose in failing to heed adequate warning and in the speed at which he was driving. He was driving in a 30 mile zone. They say the undisputed evidence shows he was driving at least 50 miles per hour. They also urge that the undisputed evidence shows he never saw the train because there were no skid marks, thus showing the absence of any effort to stop.

We have opinion testimony of the highway patrolman based alone on his observation of the damage done that the automobile was traveling 50 miles per hour. He also testified the same damage could have been caused by speed of 20, 30 or 40 miles per hour. Then there is the opinion testimony of the expert, Dr. Tonn, also based on the damage done, that the automobile was traveling 50 miles per hour. There is the testimony of the young man named Wehrly about an unidentified automobile he observed, as we have above detailed, that he said was traveling 70 or 75 miles per hour. By the circumstances above related by Wehrly appellants contend they circumstantially show the automobile he observed was the Rose car. All occupants of the Rose car were killed except the young child, Linda Lou, who. remembers nothing of significance about the accident. No one, except some of the train operatives saw the collision or the automobile just before the collision, and they admitted they were in no position to judge the automobile’s speed.

The highway patrolman’s testimony was not competent and is of no probative value on speed. There were no skid marks and he was not shown to have qualified as an expert to determine speed, based alone on damage resulting from a collision, particularly one between an automobile and a heavy gondola car. St. Louis Southwestern Ry. Co. of Texas v. Duffy, 308 S.W.2d 202 (Tex.C.C.A.), ref., n. r. e.; Jenkins v. Hennigan, 298 S.W.2d 905 (Tex.C.C.A.), ref., n. r. e.; Union Bus Lines v. Moulder, 180 S.W.2d 509 (Tex.C.C.A.), no writ hist.; Wallace v. State, 143 Tex.Cr.R. 596, 160 S.W.2d 256.

We are also of the view that the testimony as to speed given by Wehrly is without probative value on the issue of speed at any time material to this case. Anderson v. Broome, 233 S.W.2d 901 (Tex.C.C.A.), no writ hist.; Hanck v. Ruan Transport Corp., 3 Ill.App.2d 372, 122 N.E.2d 445; Morris v. Aero Mayflower Transit Co., 73 Ariz. 390, 242 P.2d 279; Fitzgerald v. Penn Transit Co., 353 Pa. 43, 44 A.2d 288; Huff v. Daniels, 335 S.W.2d 332 (Ky.) ; Euson v. Starrett, 277 F.2d 73 (7th Cir.) ; David Bilgore & Co. v. Ryder, 211 F.2d 855 (5th Cir.).

A court or jury is not bound by purely opinion evidence. We certainly cannot say that Dr. Tonn’s testimony absolutely establishes the speed of the automobile. Hood v. Texas Indemnity Co., 146 Tex. 522, 209 S.W.2d 345; Metropolitan Life Ins. Co. v. Funderburk, 81 S.W.2d 132 (Tex.C.C.A.), writ dism.; Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943; Tix v. Employers Casualty Co., 368 S.W.2d 105 (Tex.C.C.A.), no writ hist.

There is a strong presumption always existing that a person exercises due care for his own safety. Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481.

Appellants urge the officer Klasel’s testimony that the engineer told him the train was traveling 10 or 12 miles an hour at the time of the collision, though not objected to, is hearsay and without probative force. We think the statement made was admissible as res gestae and thus is of probative force. The record shows the collision occurred at 3 :20 a. m. The wrecker driver, who also heard the engineer’s statement, arrived between then and 3:30 a. m. Officer Klasel arrived at 3:38 a. m. He testified to making the investigation and as a part of it he talked to the engineer at the scene. The exact time of the conversation is not shown. As stated, it was at the scene where six people had been killed. The engineer on trial said he would not deny he made the statement as to the speed of the train because he did not remember what he told the officer. From this the conclusion is easily reached that the engineer when speaking was under the influence of the collision, or, to state it otherwise, the event was speaking through him.

When we consider all of the evidence it cannot be said as a matter of law that the negligent acts of appellants, as found by the jury, were not proximate causes of the collision. It may be that some negligent act of the driver Rose contributed to the collision, but contributory negligence is not an issue in this case. It may reasonably be concluded from the evidence that though Rose might have been driving in excess of 30 miles per hour, and that he did not stop at the railroad crossing, and he did not hear the bell on the train, none of these was the sole proximate cause of the collision. It may reasonably be inferred that, considering the speed of the train, the flasher signal did not timely operate. Too, the gondola cars were black and of low silhouette and thus were hard to see even by some approaching the scene after the collision though they knew of the collision. The lead end of the lead car, which was the point of collision, was some 215 feet ahead of the engine and the headlight did not illuminate the cars. Too, because of the surrounding lights the headlight could have well been taken for other lights east of the crossing.

The issues relating to the negligent failure of Allen Nelson to flag the crossing and that such was a proximate cause of the collision find sufficient support in the evidence. While defendant Railroad Company would not be required to flag the crossing where there is a safely operating flasher system, we feel under all the facts of this case it might be reasonably concluded there was not an adequate flasher system and that flagging was called for.

Appellant, Missouri Pacific, complains of the action of the court in submitting issues on gross negligence and in not disregarding the jury’s answers to such issues because there was no evidence to support them.

The jury found that J. B. Hobbs, the trainmaster, caused A-Block Signal 3203 to be operated according to “track and time” procedures and this was gross negligence which was a proximate cause of the collision. The jury also found the practice of “track and time” as applied to this crossing involved an unreasonable risk to the public; that Hobbs had been advised of this danger; that he knowingly refused to discontinue “track and time” as to this crossing; that this was gross negligence and was a proximate cause of the collision.

We are of the view there is no-evidence to support the finding of gross negligence and that such was a proximate cause of the collision. Assuming that there is some evidence of probative force, based largely on the testimony of Mr. McKinney, that Mr. Hobbs instructed that the “time and track” rules should be applied to A-Block 3203, though it was actually outside of track and time limits, it cannot be said that this was gross negligence. The rules that Mr. Hobbs said to follow called for a train to stop when the discs were red over red and proceed slowly. Too, it is of significance that the undisputed evidence shows the train did not stop at A-Block 3203 as the rules required. The train proceeded through the signal without stopping. Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (S.Ct.); Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709; Magnolia Petroleum Co. v. Ford, 14 S.W.2d 97 (Tex.C.C.A.), aff’d by Ford v. Magnolia Petroleum Co., 118 Tex. 461, 17 S.W.2d 36.

Appellants’ complaint that the verdict awarding compensatory damages of $125,000.00 is excessive is overruled. We have read all of the evidence relating to appellee’s injuries, and are of the view that it supports the award of the jury.

The complaint that appellants’ exceptions to appellees’ petition should have been sustained is overruled. The exceptions in effect asserted that the operating rules and the block signal system as operated could not he the basis of negligence because they were designed only to control operations of their trains to avoid collision with other trains. However, the operation of the block signal system is material insofar as a case concerns injury to the public using a highway across the railroad because it is tied in with and controls the activation of the flasher signal at the highway crossing which is designed to warn the traveling public of the approach of trains.

Our holding that as a matter of law, under the evidence in this case, exemplary damages could not be recovered, requires that the $75,000.00 allowed by the jury be disallowed and the judgment reformed accordingly. The judgment of the trial court is, therefore, reformed so that the appellee shall have and recover compensatory damages from appellants, jointly and severally, in the amount of $125,000.00 with interest thereon at the rate of 6% per annum from the 19th day of July, 1962 until paid. As reformed, the judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    Floyd CAVINESS, Appellant, v. Richard W. JAMES and John L. James, Appellees.
    No. 7562.
    Court of Civil Appeals of Texas. Texarkana.
    May 19, 1964.
    Rehearing Denied June 16, 1964.
    H. B. Harrison, Fisher, McLaughlin & Harrison, Paris, for appellant.
    Hardy Moore, Moore & Lipscomb, Paris, for appellees.
   FANNING, Justice.

Appellant sued appellees seeking an injunction to enjoin appellees from availing themselves of Art. 1377b, Vernon’s Annotated Penal Code. Appellees filed a cross-action for injunction to enjoin the appellant from interfering with their right to cross appellant’s land in order to obtain access to appellees’ land and for grounds thereunder alleged way of necessity and under authority of the said statute, Art. 1377b, V.A.P.C.

The trial court after stating in its judgment “it appearing to me that the plaintiff’s application for a temporary injunction should be denied and the defendant’s application as cross-plaintiffs for a temporary injunction should be granted by virtue of the provision of said article 1377b, Vernon’s Annotated Penal Code”, denied plaintiff’s application for a temporary injunction and granted defendants’ application as cross-plaintiffs for a temporary injunction, and granting to defendants-cross-plaintiffs a specified right of way across appellant’s land.

Floyd Caviness, the appellant, has appealed, contending that said Art. 1377b, Vernon’s Annotated Penal Code, is unconstitutional.

The Supreme Court of Texas has recently held that said Article 1377b, V.A.P.C., is unconstitutional. W. T. Waggoner Estate v. Wilmer Cleghorn, Tex., 378 S.W.2d 47.

The Supreme Court also pointed out in the above referred to case that the three requisites for a way of necessity are (1) unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity; and (3) that the necessity existed at the time of the severance of the estates, citing Duff v. Matthews, 158 Tex. 133, 211 S.W.2d 637 and Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622.

The judgment of the trial court cannot be supported on the specific ground stated by the trial court, as Article 1377b, V.A.P.C., is unconstitutional. It is our further view that appellees’ contention that the trial court’s judgment can be supported on an implied finding that appellees were entitled to a right of way by necessity is without merit because under the record in this cause there is no evidence of probative force to support such an implied finding.

Under authority of Waggoner Estate v. Cleghorn, supra, we reverse the judgment of the trial court and render judgment for appellant granting the temporary injunction sought by him against appellees.

Reversed and rendered.