This is a suit for wrongful death brought by Elisie Breaux, dative tutor of the minors Daniel Paul Leonard and Jennifer Anne Leonard, to recover for the death of the minors' parents, Lloyd Leonard and Harriett Breaux Leonard, both of whom were fatally injured as a result of a collision between a freight train owned by the Texas and Pacific Railway Company, Incorporated, and a 1955 Chevrolet automobile owned and operated by the said Lloyd Leonard and in which his wife, Harriet Breaux Leonard, was riding as a guest passenger. The accident occurred at approximately 7:00 A.M. on the morning of September 23, 1961, at the intersection of Louisiana Highway 70 with the Texas and Pacific Railway Company, Incorporated's tracks in Assumption Parish, Louisiana, known as the Magnolia crossing. The suit was brought against the Texas and Pacific Railway Company, Incorporated and its employees, D. J. Toney, engineerman, and Fred W. Wilson, Sr., fireman. In an alternative demand American Employers' Insurance Company, liability insurer of the automobile being driven by Lloyd Leonard, was joined as a party defendant, in the event the driver Lloyd Leonard was found contributorily negligent in the death of his wife and guest passenger, Harriet Breaux Leonard.
The defendants Texas and Pacific Railway Company, Incorporated, D. J. Toney and Fred W. Wilson, Sr., filed a third party petition alleging that in the event judgment was rendered against them and in favor of Elisie Breaux, in his capacity as legal tutor of the minors and for their use and benefit for the injuries and death of their mother, Harriett Breaux Leonard, then the said Elisie Breaux, in said capacity would be responsible for the virile share of the said Lloyd Leonard as a joint tort feasor.
Plaintiff filed exceptions of no right and no cause of action to the third party demand, which exceptions were sustained by the Lower Court and the third party demand of the initial defendants was dismissed. Third party petitioners were granted writs by this Court and this Court maintained the exceptions insofar as impleading Elisie Breaux as dative tutor for said minors and overruled the exceptions permitting the impleading of Elisie Breaux, tutor, as the proper legal representative of the Succession of Lloyd Leonard, and the case was remanded to the Lower Court for trial on the merits. See 147 So.2d 693.
Trial of the case lasted ten days, and for written reasons assigned September 8, 1964, judgment was rendered against Texas and Pacific Railway Company, Incorporated, D. J. Toney and Fred W. Wilson, Sr., in solido, and in favor of Elisie Breaux (1) as dative tutor of the minor Daniel Paul Leonard in the amount of $45,750.00 and (2) as dative tutor of the minor Jennifer
Plaintiff alleged in his petition the following grounds of negligence; Failure to provide special warnings to motorist of approaching train, especially considering the poor visibility caused by darkness and dense fog and mist and considering that the vision of motorists was obstructed by high growth of sugar cane and weeds and brush; driving train at an excessive rate of speed; failure to keep proper lookout; failure to ring bell or sound whistle before reaching intersection, in compliance with LSA-R.S. 45:561; failure to clear right of way of weeds and grass and to provide special warning devices at a dangerous intersection constituting a trap for motoring public.
In his reasons for judgment the Trial Judge set forth the following findings of fact:
Mr. Crouser actually testified that a motorist 61½ feet from the center line of the track would have an unobstructed view down the track for 167 feet, that from 54 feet the motorist would have a view of approximately 195 feet, and at a distance of 36 feet the driver would have an unlimited and unobstructed view looking south along said track, all of this only to the extent that the view would be obstructed by the growing sugar cane, there being no other obstruction in the way of a motorist's vision. Mr. Crouser also testified, however, that in both of the first two instances, while the motorist would have a view of 195 and 167 feet, the
Although plaintiff alleged in his petition that the railroad was negligent in the maintenance of its right of way, there was no evidence introduced which would indicate such negligence on the part of the railroad. In fact all evidence clearly indicates that the right of way was properly maintained.
The record shows that on the morning of the accident the sky was overcast and there was fog and mist. There was some conflict of testimony respecting the fog as Hillary Richard who was parked in a truck on the other side of the tracks at the time of the accident and the deputy sheriff testified that the visibility was 50 to 70 feet while the fireman and engineer said 700 feet. This, of course, could be explained by the fact that the train operators were 12 feet above the tracks while the drivers of vehicles were only 4 feet from the ground.
The Trial Judge concluded that the intersection consisted of a blind crossing. He further concluded the train was at the time of the accident being operated at a speed of 10 miles an hour in excess of its speed limit adopted by the railroad and that if the train had been traveling at a slower rate of speed the accident would not have happened.
The Trial Judge did not find that the driver of the car was guilty of any contributory negligence whatsoever. He apparently placed no particular duty upon the driver of the car to be extra careful because of the fog, and concluded that the failure of the driver to hear the whistle was a remote cause and would not contribute to the accident.
Although not specifically stated, in concluding that the crossing was a blind crossing the Trial Judge was apparently attempting to apply the "dangerous trap" doctrine which was clearly set forth in McFarland v. Illinois Central Railroad Co., La.App., 122 So.2d 845, and Simon v. Texas & N. O. R. R. Co., La.App., 124 So.2d 646. An examination of the record, however, fails to disclose that the facts in this case fit the "dangerous trap" doctrine as applied in those cases. In the McFarland case there was a municipality involved where the tracks were higher than the elevation of the street, the railroad right of way had not been cleared, and the railroad had negligently spotted box cars at a position so as to obstruct the view of motorists. In the Simon case the railroad had permitted heavy growth on the right of way. In the present case the record shows that the right of way was clear and there were no obstructions except the sugar cane, which, of course, was not on the railroad property. There were no distracting noises to interfere with the hearing of the driver. Also, in the case of Renz v. Texas and Pacific Railroad Company, La.App., 138 So.2d 114 (1962), cited by the plaintiff, the factual situations were different from the instant case. In that case there was a steep incline where the Renz vehicle crossed the railroad tracks and neither the northbound nor the southbound motorist could observe the other until at the crest of the crossing. The facts showed the railroad had left two long gondola cars parked on the spur tracks four to six feet west of the gravel road, and a northbound motorist could not see a train approaching from the west until its front wheels were on the tracks. It cannot, therefore, be concluded that the factual situation in the Renz case would apply to the case at issue.
The presence of heavy fog or mist does not make an ordinary crossing a dangerous trap or blind corner. See Guidry v. Texas & New Orleans Railway Co., La. App., 56 So.2d 601, and Gray v. I. C. R. R. Co., La.App., 132 So.2d 61. We do not find, nor does plaintiff cite, any case holding that the mere growing of sugar cane, or any other crop, off the railroad right of way together with the presence of fog and mist
Regarding the allegation of negligence due to failure of the crew to sound proper warning signals by the use of whistle or bell, the record contains testimony of the entire train crew to the effect that all the warning devices were in operation continuously for over a quarter of a mile before Magnolia crossing, and a disinterested witness, Mr. Richard, who had approached the intersection of the highway and the tracks from the opposite direction, testified as follows:
Mr. Richard further testified on cross-examination as follows:
The evidence is quite clear that there were warning signs given. This fact is conceded by the Trial Judge in his written reasons for judgment, although he stated in his opinion the growth of sugar cane coupled with the fog made hearing of the whistle ineffective while the driver was at or near the Louisiana Law stop sign. He also concluded the situation would have been different on the opposite side where Mr. Richard was because there was no sugar cane growing on that side of the tracks. This assumption of the Trial Judge is based on the testimony of Mr. Flotte, a consulting engineer, who concluded, because of the fog, the sugar cane, the difference in the density of the air at ground level and above the fog, and the difference in temperature, that in all probability the intensity of the sound created a zone of silence. All of this was pure supposition on the part of Mr. Flotte and while it could be assumed the sound might be somewhat distorted while the car was behind the sugar cane, it would not explain the failure of the driver to hear the whistle during the last 36 feet where there was no sugar cane, especially if we accept, as the Trial Judge apparently did, Mr. Flotte's estimate of the speed of the car at approximately 3 to 4½ miles per hour. It is clear by a preponderance of the evidence that the warning signals were given and, the theories of Mr. Flotte to the contrary notwithstanding, the driver of the vehicle could have heard, or, if he had been paying attention, should have heard the whistle at approximately the same time Mr. Richard heard the whistle.
The evidence regarding the speed of the train is, as in most cases such as this, conflicting. The members of the train crew testified the train was traveling at approximately 20 miles per hour at the time of the accident. The record shows their estimate of the speed was not measured by a speedometer but by the train crew checking the speed from mile post to mile post by the use of their watches. The conductor's report indicated the train covered the distance from Elmer, its last stop prior to the accident, to Magnolia crossing, in 50 minutes. Mr. Heck, Civil Engineer, testified the distance from Elmer to Magnolia crossing was 19.23 miles while Mr. Crouser, also a Civil Engineer, testified the distance was 19.33 miles. This would indicate the train had traveled at
According to Mr. Flotte's testimony, he considered certain known factors, that is, the distance from the point of impact to where the train stopped, and the weight of the train. He then applied them to mathematical formulas which included, among other factors, velocity, retarding force, breaking resistance, friction, and an estimate of the time factor before maximum brake pressure is reached in an emergency control application. However, on cross examination it was brought out that Mr. Flotte did not have any particular knowledge of the brake system of the train in question; that he was unfamiliar with the type of brakes on the railway cars; that he had assumed as a factor that the brakes on the cars were designed 60% empty car weight braking force; that he did not know whether the brakes had two shoes to a wheel or more or less; and that he was unfamiliar with the design of the control valve on the braking system of the particular engine. Of even more importance is that fact that his formula did not account for reaction time, which is an important factor in dealing with stopping distance in matters of seconds.
The defendants called as an expert a Mr. Thomas J. Womack, a retired railroad engineer, who concluded that at 20 miles per hour the required stopping distance would be 556 feet, which, when compared to the 610 feet in which the train actually stopped, would indicate only a very slight exceeding of the speed limit.
The Court, however, apparently based its estimate of speed entirely upon the suppositions of Mr. Flotte and completely ignored the testimony of Mr. Womack and of the train crew. With this finding we cannot agree. Mr. Flotte's estimation of speed is based upon too many imponderables and assumptions. It is not our opinion that the plaintiff proved by a preponderance of the evidence the speed of the train was in excess of that set by the orders of the day.
It has already been established by jurisprudence that testimony by a train crew must not be disregarded because they might be biased or interested witnesses. In the case of Leger v. Texas & Pacific Railway Co., La.App., 67 So.2d 775, this Court held as follows:
After concluding that the intersection constituted a blind crossing and the train was being operated at 10 miles per hour in excess of the speed limits adopted by the railroad for the operation of its trains on the day in question, he then stated the legal question presented was whether or not the operation of the train under the circumstances constituted negligence and, if so, whether such negligence was the proximate cause of the fatal collision. The Trial Judge answered this question in the affirmative. He cited the ruling of the Louisiana Supreme Court in the case of Perkins v. T. & N. O. R. R. Co., 243 La. 829, 147 So.2d 646. In that case the Court held the violation by trainmen of speed regulations adopted in the interest of safety to be evidence of negligence provided the excessive speed of the train was a cause in fact of the fatal collision. In that case the Court further held it to be fundamental that the negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not be the sole
In determining whether or not the alleged excessive speed in the present case was in truth a cause in fact, the Trial Court proceeded to attempt to determine the speed of the vehicle and then to determine whether or not the accident would have occurred if the train had been going 20 miles per hour.
The only evidence as to the speed of the vehicle was one estimate made by the fireman to the effect, that in his opinion, the vehicle was proceeding at a speed of 50 miles an hour, and the estimate of Mr. Flotte that it was proceeding at a speed of from three to four and a half miles per hour. In considering the speed of the vehicle, the Trial Judge used the testimony of Mr. Wilson, the fireman. Mr. Wilson testified at one point the car was 60 to 70 feet from the intersection when it was first observed and he was 30 to 40 feet from the intersection at that time, but when it was brought to his attention on cross examination that since the front of the engine was approximately 30 feet from where he was seated a collision with the front of the engine as happened in this case, could not have taken place, Mr. Wilson then stated the car was from 30 to 40 feet from the intersection when he first saw it. It should be pointed out that a close reading of Mr. Wilson's testimony does indicate, despite some variations, that when he first saw the vehicle it was from 30 to 40 feet from the intersection. He was very indefinite as to the location of the train when he first saw the car.
The Trial Judge held that assuming the car was going 50 miles per hour as Mr. Wilson testified, it would make no difference whether the engineer first saw the car at 30 or 40 feet or at 70 feet because the accident could not have happened if the train was traveling 30 miles per hour, using the measured distances set forth in the record, and be then concluded the Leonard vehicle was not being driven at the speed estimated by Mr. Wilson, all of which was unimportant in that Mr. Wilson made only a rough estimate and there is no factual evidence to indicate that the car was going 50 miles an hour. Mr. Flotte had determined that if the car was 40 feet from the crossing when first viewed this point was 298 feet from the point of impact. He then concluded that if the train was traveling 30 miles per hour the car would be traveling 4½ miles per hour, but that if the train had been traveling 20 miles per hour the car would have been traveling 3 miles per hour, and then said that if the train had been traveling 20 miles per hour instead of 30 it could have stopped in less than 298 feet. The Trial Judge, using Mr. Flotte's assumptions stated "the conclusion is obvious that the accident might have been adverted if the train had been proceeding at its prescribed rate or by slowing down." (Emphasis added) Again, these calculations were made upon the basis of an estimate as to a point where the fireman was supposed to have first seen the car. It should be emphasized that Mr. Wilson was not definite as to the exact spot where he first saw the car nor as to where the train was when he first saw the car, and that Mr. Flotte's estimation of the speed was based upon assumption and not upon fact, and thus it cannot be concluded definitely that the car was being driven at the speed assumed by Mr. Flotte. The Trial Judge concluded that having determined the speed of the car we can observe that the accident would not have happened if the operators of the train had been traveling their prescribed speed and their failure to take extra precautions in view of a blind crossing was a proximate cause of the ensuing collision.
What the Trial Judge has in fact done is, first, designate the corner a blind crossing, second, designate the area where the vehicle was as a zone of silence, third, estimate the speed of the train as that given by a Civil Engineer based upon some
It is the opinion of this Court that the rule to be applied is set forth in Hymel v. T. & N. O. R. R. Co., 145 So.2d 138, cert. den. November 27, 1962, wherein the Court held:
It is the opinion of this Court that the plaintiff has failed to prove any negligence on the part of the defendants which was the proximate cause of the accident and, therefore, the judgment of the Trial Court should be reversed.
As already mentioned, the plaintiff sued the liability insurer of the decedent in the alternative, based upon the wrongful death of the mother of the minor children. However, no appeal was taken by plaintiff in the alternative. The judgment of the Trial Court did not mention the liability insurer, American Employers' Insurance Company, by name but merely cast the defendants Texas and Pacific Railway Company, Incorporated, D. J. Toney and Fred W. Wilson, Sr., in judgment, apparently dismissing the suit insofar as American Employers' Insurance Company is concerned. Therefore, as no appeal was taken from this portion of the judgment dismissing the suit insofar as the liability insurer was concerned the judgment in that respect is final. We have held that a plaintiff's answer to an appeal perfected by only one defendant from a judgment entered against two defendants in solido could apply only to the appeal perfected by the appealing defendant, and under such
We held to the contrary in the case of Fussell v. U. S. F. & G. Co., La.App., 153 So.2d 911. In that case we held that an answer to an appeal taken by one of the defendants as to the judgment dismissing the suit against three co-defendants who were alleged solido co-debtors would serve to bring said alleged solido co-debtors before the Court.
However, the Fussell case, supra, could be differentiated from the case at bar. The plaintiff sought judgment against the defendants John A. Joiner, and his insurer; Mrs. W. F. Downs and her insurer; and the insurer of plaintiff's vehicle. The Trial Court rendered judgment against Joiner and rejected the demands as against Mrs. Downs and her insurer, and the insurer of plaintiff's vehicle. Defendant Joiner appealed from this judgment and plaintiff answered Joiner's appeal seeking an increase in the award and that judgment be amended by making it solido against Joiner, Mrs. Downs and her insurer and the insurer of plaintiff's automobile in solido.
In the instant case plaintiff sued only the T. and P. R. R. Co., Inc., the engineer D. J. Toney and the fireman Fred W. Wilson Sr. In the alternative and only in the event contributory negligence was found by the driver of the Leonard car, asked for judgment alternatively against the American Employers' Insurance Company, its insurer. The three named defendants, T. and P. R. R. Co., Inc., Toney and Wilson appealed from the judgment herein and plaintiff answered the appeal seeking an increase in the award against these defendants and praying in all other respects the judgment be affirmed.
For the above and foregoing reasons the judgment of the Trial Court is reversed and judgment is rendered in favor of the defendants Texas & Pacific Railway Co., Inc., D. J. Toney and Fred W. Wilson Sr. dismissing plaintiffs' suit at their costs.
Reversed and rendered.