Plaintiff, Paul Mediamolle, Sr., instituted this suit on behalf of his minor son, Paul Mediamolle, Jr.,
The railroad answered on behalf of itself and Arceneaux, denying the plaintiff's accusations of negligence and insisting that the sole cause of the accident was the negligence of Mediamolle in the operation of his vehicle. In the alternative, the railroad specially pleaded Mediamolle's contributory negligence.
Louisiana Power and Light Company also answered and therein denied the existence of any negligence on its part.
The case was tried before a jury, which returned a verdict awarding Mediamolle, Jr., $60,000.00 and awarding his father $7,220.28 for special damages incurred by him. This verdict was returned against Southern Pacific, but not against the Louisiana Power and Light Company. Judgment was rendered in accordance with
Plaintiff voluntarily dismissed his suit against Arceneaux before the case was submitted to the jury. Moreover, no appeal has been taken by either plaintiff or Southern Pacific from that part of the judgment exonerating the Louisiana Power and Light Company from liability. Therefore, it is conceded by all of the litigants that the question of liability vel non of Arceneaux and Louisiana Power and Light is not a subject for consideration by this court.
The record reveals that on February 6, 1961, at 1:15 a. m., plaintiff's minor son, hereinafter referred to as "plaintiff", drove his automobile into the side of one of the defendant's railroad tank cars, which obstructed the roadway at a point where the defendant's track crosses Monroe Street in the City of Gretna. The situs of the accident reveals that Monroe Street is a paved two lane artery possessing shell shoulders on either side, and it accommodates traffic moving both north and south. The single track traverses Monroe Street at an angle of approximately 45 to 55 degrees at a height of 4.9 feet above the level of the main roadbed. The slope from street level to the level of the track commences at a point 250 feet south of the track and reaches a crest, or plateau, 50 feet from the track itself. The remaining 50 feet between the crest of the slope and the track forms a level plateau 4.9 feet above street level.
The evidence is somewhat conflicting as to the driving conditions which prevailed on the night of the accident. Some of the testimony indicates that a slight mist was falling, while other evidence reflects that the weather was clear. It is undisputed, however, that the night was extremely dark.
Southern Pacific, sometime prior to the accident, had arranged for Louisiana Power and Light Company to erect two large floodlights, one positioned on either side of the track, so as to illuminate the crossing, but neither of these lamps were burning.
The train, of which the tank car formed a part, was moving in a northeasterly direction and was engaged in a switching operation. The distance between the switch and the crossing was insufficient to accommodate the engine and the four cars being drawn by it, so that the street was completely obstructed by the train. The defendant's switch engine was engaged in a back-up motion with its cab at its forward end. The engine's rear headlight was on, illuminating the track in the direction opposite from the crossing and from the tank cars. Several other small lights were burning on the side of the engine, but these were obscured from the view of passing motorists by a billboard which was located near the crossing.
The occupants of the cab were the engineer, W. A. Arceneaux, and the fireman, Charles I. Lopez, both of whom were seated, to the left and right respectively, facing in the direction of the train's movement. When the engine reached Monroe Street, it was stopped so as to permit the crew to look both ways for approaching traffic. When they had ascertained that the roadway was clear, the whistle and bell were sounded and the train was moved across the roadway. Immediately after the engine crossed the street, the train was brought to
When the accident occurred, Paul Mediamolle, Jr., was accompanied by three friends, all of whom were teenagers. They had just departed from a drive-in restaurant located at the corner of Monroe and Kepler Streets, two blocks to the south of the defendant's track. Plaintiff turned into Monroe Street and drove north toward the track. The radio was playing, and the four boys were engaged in a rather animated conversation. It is obvious from the record that neither plaintiff nor his passengers paid any attention to the railroad crossing, although it is well established by the testimony that the plaintiff was familiar with the area and knew the location of the track.
The exact speed at which the automobile was driven is, as usual, disputed. The lowest estimate, made by Mediamolle, Jr., was, in his words, "somewhat less than forty-five miles per hour," although his companions estimate the speed from 45 to 55 miles per hour, which of course, is well above the posted 25 miles per hour speed limit. There was no visual obstruction between the plaintiff and the tank car; the only impediment to the plaintiff's vision was the intense darkness of the night.
Plaintiff testified that despite the maintenance of a proper lookout, his headlights did not pick up the tank car until he was a short distance removed therefrom. He immediately applied the brakes, but the automobile nevertheless struck the train with sufficient force so as to demolish the front end of the vehicle and pin the plaintiff between the steering wheel and the front seat thereof. Measurements made at the scene by investigating officers revealed that the plaintiff's car skidded 56 feet prior to the collision.
To reiterate, the jury returned a verdict in favor of the plaintiff and against Southern Pacific in the total amount of $67,220.28.
In response to special interrogatories propounded to it, the jury found (1) that the railroad was negligent and that its negligence was the proximate cause of the accident; (2) that Louisiana Power and Light Company was negligent, but that its negligence was not the proximate cause of the accident; and (3) that the plaintiff was guilty of contributory negligence, but that his negligence was not the proximate cause of the accident.
We have observed heretofore that when a suit is predicated on an allegation of negligence and the defense thereto is a denial of negligence and an alternative plea of contributory negligence, it is often expedient to initially consider the plea of contributory negligence, for if the facts disclose the existence of contributory negligence without which the accident would not have occurred, it is then unnecessary to determine whether there was primary negligence in the defendant.
In considering such a plea, it is well established that the existence vel non of contributory negligence is a question of fact, and that the determination of the arbiter of the facts, be it judge or jury, is to be afforded great weight by an appellate court. Therefore, the fundamental question posed for our consideration is whether the verdict of the jury was so erroneous and unsupported by the evidence as to warrant a reversal by us.
Assuming arguendo that the railroad was negligent in not having flares or other safety devices placed in a position to warn approaching motorists of the train's presence,
In considering a factual situation quite similar to this one, Judge Landry, the organ for the court in the case of Gray v. Illinois Central Railroad Company,
Further, in Stein v. Missouri Pacific Railroad Company,
Plaintiff also suggests that because of the total darkness and lack of warning, the railroad car parked as it was directly across the roadway, constituted a trap within the meaning of the dangerous trap doctrine initially enunciated in McFarland v. Illinois Central Railroad Company
Plaintiff's foregoing contention, however, was, in our opinion, satisfactorily answered in the Stein case, supra, as follows:
Finally, plaintiff's counsel argues that the slope up to the level of the track intercepted the lights of his vehicle and thus prevented him from seeing the tank car which obstructed the roadway. However, an examination of the record, including the testimony of plaintiff's expert traffic engineer, discloses that the slope, being a five foot rise over a distance of 200 feet, was entirely too gradual to have intercepted the beams of his headlights.
In view of all that we have said hereinabove, we are of the opinion that the jury committed manifest error when it found as a fact that the contributory negligence of the plaintiff was not the proximate cause of the accident.
For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the Southern Pacific Railroad Company, dismissing plaintiffs' suit at their cost.
Reversed and rendered.