Plaintiff, the surviving husband of Mrs. Martha Glisson who was killed when the automobile she was driving collided with a passenger train, brought this suit, individually and on behalf of decedent's two minor children, to recover damages for her alleged wrongful death.
The accident occurred at a rural grade crossing over the railroad track of defendant located about two miles north of Kinder in Allen Parish. The railroad right of way is 100 feet wide accommodating a single straight track, which runs North and South, laid approximately in the middle of the right of way.
The principal defendant in the case is Missouri Pacific Railroad Company, owner of the passenger train. However, plaintiff also joined J. P. Kohler, Jr., operator of the train and C. M. Todd, the fireman, as joint tortfeasors.
Plaintiff alleges that on December 31, 1961, at approximately 12:35 P.M., Mrs. Glisson, accompanied by two guest passengers, was driving a 1957 Rambler sedan in a westerly direction on a parish gravel road, known as Johnson Road, from her home across the railroad tracks to its intersection with U.S. Highway 165; that these individuals were part of a group of Pentecostal Church members who were on their way to Oakdale, Louisiana to hold a radio broadcast church service (Mrs. Glisson being a minister of the church); that at this time defendant was operating its passenger train in a southerly direction across the intersection of the parish road, locally known as Cottongin Crossing; that the Glisson car was the third or last car in the caravan of church workers on their way to the radio church service, the other two cars having already safely traversed the crossing and that when Mrs. Glisson drove upon the track, after taking the precaution of stopping, looking and listening for any railroad traffic that might be in the vicinity, her car was violently struck by defendant's passenger train, causing the automobile to be torn asunder and resulting in the death of all its occupants. It is asserted that Cottongin Crossing was an unusually hazardous and unsafe crossing due to the neglect of defendant in not removing the weeds, brush and trees from its right of way, which vegetation obstructed the view of motorists using the railroad crossing, thus constituting a veritable trap and that the maintenance of it, coupled with the imprudent manner in which the train was being operated (at excessive speed and without giving adequate warning signals of its approach) was the proximate cause of the accident and the resulting death of Mrs. Glisson.
Defendants deny fault in any respect and plead that the accident was solely attributable to the negligence of Mrs. Glisson in traversing the railroad crossing with which she was familiar, without stopping, looking or listening for approaching trains and carelessly driving her automobile onto the track, notwithstanding that the train was plainly visible and the train crew had given audible warnings by whistle and bell. In the alternative, defendant pleads the contributory negligence of Mrs. Glisson in the acts enumerated above.
On the issues thus joined, a trial was had before a jury which returned a verdict in favor of the plaintiff. On appeal, however, the Court of Appeal, Third Circuit, reversed the judgment holding it was unnecessary to determine whether the railroad's employees were at fault because Mrs. Glisson was undoubtedly guilty of contributory negligence barring plaintiff's recovery. See Glisson v. Missouri Pacific Railroad Company, La. App., 158 So.2d 875.
Upon finality of the judgment of the Court of Appeal, plaintiff applied for a writ of review. He complained that the court erred in rejecting the "dangerous trap doctrine"
After a careful review of the record, we have no hesitancy in concluding that the matter was properly decided by the Court of Appeal and also that the errors specified by plaintiff in his application and argument here are without substantial foundation.
In the first place, it takes no more than a perusal of the photographs of the crossing, the railroad right of way and the approach thereto from the intersecting gravel road to exhibit that it is not an obstructed crossing or a dangerous trap. Nor is there any believable evidence in the record to show that the physical conditions of the crossing and vicinity were altered either by act of man or weather at the time these photographs were taken. Even the photographs submitted by plaintiff (some of which were taken on the day of the accident) are destructive of his theory that the crossing is a trap.
The only eye witnesses to the accident were the train crew of the railroad company. They testified, in substance, that the train was travelling with the headlight burning (the purpose of which is to attract attention of people around crossings) at a speed of 64 miles per hour (not excessive at rural crossings) and that when it was 1800 to 2000 feet to the north of the crossing, proper signals were given—blast of whistle and ringing of bell; that about 200 feet from the crossing the engineer, who was acting as fireman at the time, and the regular fireman saw the Glisson car come over the stop sign at a speed of approximately 20 miles per hour and heedlessly continue onto the track; that as soon as they saw the car, which did not slacken its speed, they immediately advised the operator (Mr. Kohler, road foreman of engines on the DeQuincy Division) and the emergency brake was applied but that nothing could have been done at that time to avert the tragic accident.
The testimony of the train crew and another representative of the railroad that the bell was rung and whistle blown in compliance with law for over 1800 feet in advance of the crossing is corroborated by another person, James McGee, who was a passenger in the first automobile of the caravan of church workers that had passed over the crossing. This 16-year-old boy stated that the car, in which he was riding, had proceeded some 1000 feet north of the crossing on Highway 165 (which runs parallel to the track in this vicinity) at the time the train passed the car on its way to the crossing and that he heard the whistle blowing.
In rebuttal of the positive evidence of the train crew, plaintiff's witnesses state negatively that they did not hear the whistle blow. One or two of them say they did not hear the crash even though they were in the close vicinity at the time. This testimony is probably explained by the fact that it was a cold day and the automobiles in the caravan were driven with the windows closed. At any rate, these same witnesses—occupying the first two automobiles in the caravan—noticed the train with its headlight burning some distance to the north when they traversed the crossing. None of plaintiff's witnesses were asked the question whether the train bell was ringing and, therefore, there is no denial of the testimony of defendant's employees that the bell was being rung.
For our part, we see no reason to doubt the veracity of the statements given by the train's crew for, albeit they are interested witnesses, their testimony is fully supported, we believe, by the physical facts of the case.
In any event, if it be that the operators of defendant's train were guilty of any negligence, then we think it clear, as the Court of Appeal found, that Mrs. Glisson was guilty of contributory negligence barring plaintiff's recovery.
Finally, we find no merit in plaintiff's complaint that defendant refrained from offering some photographs taken of the crossing on the day of the accident. W. L. Gabbert took pictures for the defendant on December 31, 1961, January 2, 1962 and December 29, 1962. Only one picture taken on December 31, 1961 was introduced in evidence. This shows the railroad track from a position south of the crossing and the demolished automobile which was severed by the blow it received. On the witness stand, Mr. Gabbert was asked if he recalled taking a picture to the north of the crossing. He answered that he did and that he was sure it was in the set of photographs offered in evidence. Evidently, counsel for plaintiff thought that the witness meant a picture taken on December 31st. Mr. Gabbert did take pictures
For the reasons assigned, the judgment of the Court of Appeal is affirmed.