LANDRY, Judge.
Plaintiff herein, Jerry G. Gray, has taken this appeal from the judgment of the trial court rejecting and dismissing his tort action against defendant, Illinois Central Railroad Company, for damages for personal injuries and property loss sustained and incurred in an accident in which plaintiff drove his automobile into the side of defendant's freight train at a grade crossing in the City of Baton Rouge, Louisiana. In dismissing plaintiff's claim, the trial court predicated its judgment upon the finding that plaintiff's negligence was the sole proximate cause of the accident.
The undisputed facts in this case are relatively simple. At approximately 2:30 a. m., January 25, 1960, plaintiff, traveling alone, was driving his Ford automobile north on Chippewa Street (a four-lane throughway in the City of Baton Rouge) at an estimated speed of 35 to 40 miles per hour and while so proceeding ran into the twenty-first car of defendant's thirty car freight train which was traversing a grade crossing of said street. At the time of the accident the weather was foggy and the headlights on plaintiff's vehicle were burning brightly. Plaintiff did not see the train until he was only five or six feet distant therefrom and upon detecting its presence he immediately applied his brakes but was unable to avoid the then inevitable collision which ensued. Defendant's train, in the process of negotiating a "Y" which connected with defendant's main line, was proceeding over the grade crossing at an estimated speed of eight to ten miles per hour.
The record reveals Chippewa Street to be a recently open four-lane throughway actually constituting an extension or projection of North Third Street in the City of Baton Rouge. The lawful speed limit for vehicles traversing said thoroughfare is forty miles per hour. The crossing in question is not protected or guarded by any special system of automatic warning lights or barriers of the type which have become a common sight on our present day highways and city streets. On either side of the crossing defendant has caused to be erected the usual and customary stop sign with the admonition "Louisiana Law Stop" appearing
Regarding visibility on the night in question, plaintiff concedes he was traveling with his headlights burning and further acknowledges the weather was foggy but maintained he could see "pretty good". On this score, however, he was contradicted by the testimony of his brother, Gerald L. Gray, who was following plaintiff in another vehicle and who testified that because of the fog visibility "was not too good". Gerald further testified he arrived at the scene after the train had completed its crossing and observed plaintiff's wrecked vehicle just in time to avoid colliding therewith.
In substance the various members of the train crew testified that before negotiating the crossing the train was stopped south of Chippewa Street to permit the brakeman to alight therefrom and check for approaching traffic. Upon the engineer halting the train the brakeman descended from the locomotive, lighted a flare or fusee, proceeded afoot to the center of the street to warn approaching motorists and, observing no oncoming vehicles, signalled the engineer to proceed. With the engine's horn blowing and bell ringing the engineer proceeded slowly across the intersection. When the engine reached the approximate center of the street the engineer ceased sounding the horn but continued to ring the bell until the locomotive had completely traversed and intercepted the crossing. As the engine reached the far side of the street the brakeman discarded his flare beside the roadway and reboarded the train which continued to a switch at which point it stopped only long enough to allow the brakeman to operate the switch so that the train might enter the main line. Plaintiff having struck the twenty-first car of the train, none of the train crew were aware of the occurrence of the accident until subsequently advised thereof by city police summoned to the scene by plaintiff's brother Gerald.
From the foregoing it will be readily observed plaintiff was the only eye-witness to the accident. Although his testimony does not so show with complete certainty, the preponderance thereof is to the effect the train was in motion at the time of impact.
The gravamen of plaintiff's complaint is that defendant, having constructed a grade crossing over a four-lane main thoroughfare in a large city, was guilty of negligence in failing to install automatically operated signal lights, warning devices or barriers to alert the motoring public to the presence of trains. Plaintiff further maintains defendant was guilty of negligence in failing to cause its employees to flag approaching vehicles or set out flares or lights to warn the traveling public that one of defendant's trains was impeding travel on a main traffic artery in the capital city of this state. Additionally plaintiff argues the instant case is one in which we should invoke the "dangerous trap doctrine" recently reaffirmed and applied by this court in McFarland v. Illinois Central Railroad Company, 122 So.2d 845, 853, considering the crossing herein involved intersects a throughway of a large city at a point where said thoroughfare curves on a downward slope thereby obstructing visibility of defendant's trains.
On the other hand, defendant contends its crossing does not constitute a dangerous trap because, irrespective of the prevailing conditions there is no obstruction or impediment of vision and that, had plaintiff been driving at a reasonable speed under the existing circumstances and maintaining a
As stated in the McFarland case, supra, negligence must be determined in the light of the facts and circumstances of each particular case. As also stated in the McFarland case, supra, application of the "dangerous trap doctrine" with respect to railway grade crossing of public streets or highways is dependent upon the circumstances attending each case in which the rule is sought to be applied.
The "dangerous trap doctrine" applied in the McFarland case, supra, is predicated on the well recognized principle that if a grade crossing is unusually dangerous, ordinary care requires the railway company to meet the danger with unusual or extraordinary precautions, especially where there is an obstruction of view which prevents a motorist from seeing an approaching train until he is dangerously close to the track. In such instances the railway company is under a duty to exercise caution commensurate with the circumstances to avoid accidents such as by decreasing the speed of its trains or increased warnings or otherwise. See American Jurisprudence Volume 44, Verbo Railroads § 507, Page 747.
In the McFarland case, supra, the facts were that defendant's tracks intercepted the street or highway at a sharp angle, the crossing was situated atop an incline and visibility was obstructed both by a box car stationed on a siding near the crossing and also by weeds, trees and brush which defendant railroad had permitted to grow along and upon its right of way.
The facts in the case at bar are vastly different from those in the previously mentioned McFarland case. Although the crossing in the case at bar is situated in a curve and on a slight downgrade of the street there is no obstruction or impediment of view. Photographs introduced in evidence disclose that a motorist maintaining a proper lookout has an unimpeded view of a train on the track as it crosses the street. Moreover, plaintiff's automobile was not struck by the engine or first car of defendant's train to reach the intersection but rather plaintiff ran into the side of defendant's moving train after it had completely fouled or blocked the street. Learned counsel for plaintiff has cited no case or authority in which the dangerous trap doctrine has been applied to a situation wherein a motorist collided with a train under circumstances similar to those in the case at bar. So far as we are aware the rule has been invoked only in those situations wherein the motorist's vehicle is struck by either the engine of a train as it proceeds over the crossing or the rear car of a train being backed over a street or highway intersection. The locomotive of defendant's train negotiated the crossing considerably before plaintiff reached the scene. As previously stated, plaintiff ran into the side of the twenty-first car of the train which he could and should have seen had he been maintaining a proper lookout and traveling at a speed commensurate with prevailing weather conditions. The train crew had taken every precaution to warn motorists of the train's approach prior to the engine entering the intersection. The locomotive had negotiated the crossing without incident, the train was there for all approaching motorists to see and the railway employees had no reason to suspect
The rule with respect to the liability of a railway company for injury to a motorist colliding with a train standing on a street or highway crossing is, in American Jurisprudence, Volume 44, Verbo Railroads, Page 740, Section 501, stated thusly:
With respect to automobiles or other vehicles colliding with the side of a moving train the general rule is set forth in American Jurisprudence, Volume 44, Verbo Railroads, Page 742, Section 502, as follows:
We are unaware of any law or statute of our state requiring a railway company to equip its crossing with gates, lights or other similar devices to warn motorists of the presence of a train negotiating a grade crossing of a street or highway. Nor are we cognizant of any specific authority obligating a railway company to post flagmen or set out flares to caution motorists when its trains are proceeding over or standing upon a grade crossing. The only specific obligation of railroads in this regard is to be found in LSA-R.S. 45:562 which imposes only the duty of erecting the customary "Louisiana Law Stop" sign which the evidence herein discloses was complied with by defendant.
We fail to see wherein the circumstances surrounding the crossing involved in this litigation were such as to require additional warning when defendant's trains are in the act of traversing the intersection in question. There is absolutely nothing to block the view of defendant's train either passing over or standing idle upon the track crossing this particular street. Under such circumstances defendant railroad cannot be held guilty of negligence for failure to take further precautions.
Assuming, solely for the sake of argument, that defendant was guilty of negligence in failing to install lights or barriers or in failing to station a flagman or set out flares, it is clear plaintiff's contributory negligence would bar his recovery herein. The record indicates beyond doubt plaintiff had used this particular thoroughfare previously in going back and forth from his residence and was aware of the presence of the tracks. It further appears plaintiff was guilty of negligence in either traveling at an excessive speed in view of the prevailing foggy weather or in not keeping a proper lookout, or both. In any event plaintiff's testimony is to the effect he did not see the train until only five or six feet distant therefrom. If plaintiff could see "pretty good" as he testified there is no reason why he did not see the train in time to stop. If visibility was "not so good" as testified by plaintiff's brother, plaintiff was under a duty to reduce the speed of his vehicle so as to be able to stop within the range of his vision. Plaintiff was guilty of further negligence in failing to stop in obedience to the provisions of LSA-R.S. 45:563 and LSA-R.S. 32:243 which both require that a motorist shall stop and look for the approach of trains before proceeding across a railway grade crossing of a public street or highway. In this same connection see Hutchinson v. Texas & N. O. R. Co., La.App., 33 So.2d 139, Alanza v. Texas & P. Ry. Co., La. App., 32 So.2d 341 and Ashy v. Missouri Pacific R. R. Co., La.App., 186 So. 395.
It is settled law in this state that one whose contributory negligence constitutes a proximate cause of an accident may not recover for injuries sustained therein notwithstanding defendant's negligence. Matthews v. New Orleans Terminal Co., La.App., 45 So.2d 547, Hutchinson v. Texas & N. O. R. Co., supra, Wyche v. Brian, La.App., 28 So.2d 143.
Judgment affirmed.
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