This suit involves a fatal train-automobile accident which occurred in the Town of Vinton, Calcasieu Parish, Louisiana. The accident occurred at the intersection of Eddie Street and The Texas and New Orleans Railroad Company tracks. Eddie Street runs in a generally North and South direction and the defendant's main line railroad tracks run generally East and West. The railroad crossing in question was protected by a Louisiana Law railroad stop sign, a city stop sign, and an automatic railroad crossing warning signal, which automatic railroad crossing signal contains a swinging red light and bell which was operating at the time of the accident.
On the day in question one Joe Foreman, who was proceeding in a southerly direction on Eddie Street, picked up Tanner Perkins approximately 300 feet from the crossing. Tanner Perkins was sitting on the front seat on the right hand side in the 1958-four door Dodge owned and driven by the said Joe Foreman. The defendant's freight train was traveling East and the accident occurred at the intersection and both Foreman and Perkins lost their lives as a result thereof. The widow of Perkins instituted this suit and after trial in the lower court was awarded damages in the sum of $13,750.00. From the said judgment the defendant railroad company perfected this appeal to this court.
The facts found by the trial judge and which seem to be clear is that on the morning of September 28, 1959, after daylight, at approximately 6:02 o'clock A. M., Tanner Perkins, husband of the plaintiff, was riding as a guest passenger in the 1958 four-door Dodge owned and driven by one Joe Foreman. That said Dodge was proceeding South on Eddie Street in the Town of Vinton and defendant's freight train was traveling East as it approached this street. The electric signal devices which had been installed at this crossing by the defendant to warn the public of the approach of a train were properly working at
The warehouse, which was located on the North side of the North track of the defendant railroad company, obstructs the view to the West of an automobile driver going South on Eddie Street. It also obstructed the view of trainmen proceeding East to the extent that a trainman cannot see an automobile approaching the crossing from the North until the vehicle emerges from behind the building. The engineer and brakeman in the particular case were aware of the existence of the warehouse having traveled the route many times. The train in question was made up of 113 railroad cars pulled by four diesel engines. The engineer, brakeman, and fireman were located on the forward engine and the engineer was seated on the right or South side. The brakeman and fireman were seated on the left or North side of the engine.
The speed of the automobile in which Perkins was riding was estimated at different speeds by the various witnesses to the accident. S. J. Hebert, the fireman of the train, estimated the speed from 20 to 25 miles per hour. J. H. Pluett, the brakeman, estimated the speed from three to four miles per hour. One C. B. Bruce, a filling station owner near the crossing who saw the car approach the crossing, estimated its speed at 15 to 20 miles per hour. Walter Greenway, who saw the car approach the crossing, estimated its speed at 10 miles per hour.
J. H. Pluett, the brakeman, testified that when he first saw the car emerge from behind the warehouse, the train was approximately 30 to 40 feet from the crossing and as the car came into his view its front wheels were on the North track. S. J. Hebert, the fireman, testified that the Foreman vehicle was on the North track when he first saw it emerge from behind the warehouse and the train at that time was approximately 60 feet from the crossing.
It was impossible for the engineer to see the automobile before the collision as it came from his left and due to the design of the diesel engine, his view to the left of the track is cut off by the extended portion of the engine.
The testimony of the occupants of the train engine were to the effect that when the fireman and brakeman saw the vehicle, they immediately warned the engineer and he immediately applied the emergency brakes. The train traveled a distance of approximately 1250 feet before coming to a stop. The vehicle and its occupants were carried by the engine this distance.
This Court is of the opinion, as the trial judge was, that the engineer who controlled the speed of the train was negligent in operating the train at 37 miles per hour, a speed in excess of the 25 mile per hour speed limit for this crossing as provided by the defendant company's rules and regulations in view of the unusual dangerous characteristics of the crossing. The train in question was approximately one mile long, made up of 113 cars and four diesels. It entered the Town of Vinton at 37 miles per hour and was making that speed at the time of the fatal accident. By the rules of the railroad company its speed in Vinton should not have exceeded 25
In the case of Lampkin v. McCormick, 105 La. 418, 29 So. 952 (1954), the court, in reversing a jury verdict in favor of the defendant and awarding recovery to the plaintiff, stated the principle of law as follows:
The defendant argues that the mere fact that the speed of the train at the time of the accident was 12 miles an hour in excess of the speed rate fixed by the operation of trains in the Town of Vinton does not constitute negligence in itself. This court recognizes that the mere overspeeding might not constitute negligence in itself (Robinson v. Great American Indemnity Co., La. App., 120 So.2d 855, Vernaci v. Columbia Casualty Co., La.App., 71 So.2d 417, Warner v. Insurance Company of State of Pennsylvania, La.App., 129 So.2d 320) but it is of the opinion that in view of the blind crossing, this overspeeding by the employees of the railroad company was negligence which was a proximate cause of the accident.
The Court, in the case of Levy v. New Orleans and Northeastern R. Co., La.App., 20 So.2d 559, in considering the operation of a train at a speed in excess of that fixed by the rules and regulations of the railroad company, stated at page 564 of said opinion:
In the case of McFarland v. Illinois Central Railroad Company, La.App., 122 So.2d 845, (writs were denied by the Supreme Court on question of liability, 241 La. 15, 127 So.2d 183) the court found that a freight train speed of 30 miles per hour in Denham Springs was excessive and a proximate cause of the accident in view of the nature of the crossing at Denham Springs. In the McFarland case there were many
In considering the care required by a defendant railroad company at an obstructed or blind crossing, this Court, in the case of Simon v. Texas & New Orleans, Railroad Company, La.App., 124 So.2d 646 stated at page 651 thereof the following:
Having concluded that the railroad company was negligent in the operation of its train which negligence was a proximate cause of the accident we shall now consider whether or not Joe Foreman, the operator of the vehicle in which plaintiff's husband was a guest passenger was negligent. The signals at the railroad crossing were in proper working order and the evidence clearly indicates that the signal device known as a wig-wag was operating at the time of the accident. Mr. Foreman disregarded this signal device and, of course, there is no need to cite any authority to find that Mr. Foreman was definitely negligent in the operation of his vehicle in entering the crossing in spite of this warning.
The negligence of the driver does not impute it to the guest passenger. It is the duty of a passenger or guest of a vehicle in which he is riding to use ordinary and reasonable care for his own safety. The care and precaution required of him is not as great as is that required of his host driver and it is necessary that the defendant railroad company prove with legal certainty the contributory negligence of the passenger.
The speed of the automobile in this case was not definitely established but it is safe to state that the automobile was going at a slow speed which speed was slow enough that the driver of the automobile could have stopped before getting upon the track if he had been observing the approaching train.
The plaintiff's husband had a right to rely upon his host driver to take the necessary steps to stop the automobile and to assume that he would stop before entering upon the main line of the railroad company. It is necessary that a guest passenger exercise ordinary care, including a reasonable use of his faculties of sight,
Plaintiff and her deceased husband had been married for 40 years. They had built and paid for a home which they occupied at the time of his death. He was 62 years of age at the time of his death and was in a good state of general health. His main line of trade was shining shoes for which he earned a profit of 25¢ per shine and had several other part time jobs. There is no method for assessing damages for loss of love, affection and companionship and the Supreme Court, in the case of McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183, has decided that there is no formula in assessing damages for loss of earnings. While recognizing the various formulas for assessing loss of earnings the Supreme Court actually concluded that there is no such formula in assessing damages. The trial judge awarded plaintiff the sum of $13,750.00 for the death of her husband. We are of the opinion that said award is not excessive and therefore it should not be disturbed.
The judgment appealed from is affirmed at defendant's cost.
HOOD, J., dissents and assigns written reasons.
HOOD, Judge (dissenting).
I cannot agree with the conclusion reached by the majority that the speed at which defendant's train was being operated constituted a proximate or contributing cause of the accident. At the time the accident occurred the train was traveling at a speed of 37 miles per hour, which was 12 miles per hour in excess of the speed limit fixed by defendant company for the operation of trains in the Town of Vinton. The majority has concluded that, under the circumstances shown here, the operation of the train at a speed of more than 25 miles per hour constituted actionable negligence on the part of defendant's agents.
It is indicated in the majority opinion, I think, that the operators of the train would not have been negligent, and there would have been no recovery from defendant, if the train had been traveling at a speed of 25 miles per hour, instead of 37 miles per hour, at the time of the accident. And, certainly, in view of the many warning devices which were maintained and used by defendant at this crossing, the railroad was not required to reduce the speed of its trains at that crossing much below the customary and ordinary speed of its trains. The rule, I think, has been correctly stated by the U. S. District Court for the Western District of Louisiana, in Lewis v. Thompson, D.C., 47 F.Supp. 435, as follows:
The evidence in this case establishes that a warehouse was located on the northwest quadrant of this crossing, obstructing the view of the train operators and motorists as they approached the intersection. At the time this accident occurred, the operators of the train did not see, and they could not have seen, the Foreman car approaching the railroad track until the locomotive was within 50 feet of that crossing. The emergency brakes of the train were applied immediately after the car was seen, but the train traveled a distance of about 1,250 feet before it could be stopped. The evidence further establishes that the train could not have been brought to a stop within a distance of 50 feet after the danger became apparent, and thus the accident could not have been avoided, even if the train had been traveling at a speed of 25 miles per hour. Since the accident would have occurred in exactly the same manner if the train had been traveling at the maximum speed allowed by a company rule, that is 25 miles per hour, then it seems to me that the operation of the train at a speed a little in excess of that limit could not and did not constitute a proximate or contributing cause of the accident.
The law is well settled to the effect that liability does not result from a mere technical violation of regulations governing the speed of vehicles, unless it appears that the violation was responsible, to some extent, for the accident. Robinson v. Great American Indemnity Company, La.App. 2 Cir., 120 So.2d 855.
In Vernaci v. Columbia Casualty Company, La.App. Orl., 71 So.2d 417, the court said:
In Alanza v. Texas & P. Ry. Co., La.App. 2 Cir., 32 So.2d 341, the plaintiff's vehicle stalled on the railroad tracks when defendant's train was within 200 or 300 feet from the accident crossing, approaching at a speed of between 50 and 55 miles per hour. In holding that the speed of the train did not constitute a proximate or contributing cause of the accident, the Court said:
The principal issue presented here is identical to the issue which was presented
It seems to me that the majority in the instant suit has ignored the well established principle of law which this court followed and applied in the Warner case.
Since it appears to me that in the instant suit there is no causal connection between the accident and the operation of the train in excess of the speed limit fixed by a company rule, I feel that whatever negligence might be attributed to defendant's agents for exceeding that speed limit did not constitute a proximate or contributing cause of the accident.
For these reasons I respectfully dissent from the decree rendered herein.
On Application for Rehearing.
En Banc. Rehearing denied. Culpepper and Hood, JJ., are of the opinion a rehearing should be granted for the reasons assigned in the dissenting opinion.