Louisiana & Arkansas Ry. Co. v. Jackson

• Decision Date: 14 April 1938
• Docket Number: No. 8626.,8626.
• Citation: 95 F.2d 369
• Parties: LOUISIANA & ARKANSAS RY. CO. v. JACKSON et al.
• Court: U.S. Court of Appeals — Fifth Circuit

95 F.2d 369 (1938)

LOUISIANA & ARKANSAS RY. CO. v. JACKSON et al.

No. 8626.

Circuit Court of Appeals, Fifth Circuit.

March 23, 1938.

Rehearing Denied April 14, 1938.

Lawrence K. Benson, of New Orleans, La., and A. L. Burford, of Texarkana, Tex., for appellant.

H. W. Robinson, of New Orleans, La., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Injured in a highway crossing collision between Giles' automobile and appellant's switch engine, occurring at about 5:55 on a dark, foggy, rainy morning, in February, appellees sued for the damages resulting. Their claim was that while they were proceeding at moderate speed along a much traveled public highway, defendant's switch engine, without any warning being given of its approach, by bell, whistle, or other signal, was backed at an excessive speed on to the highway and into collision with their automobile. There was a general denial, a plea that plaintiffs' negligence in driving onto the crossing recklessly and in total disregard of the Louisiana law stop sign, of the warning of the flagman, and of the brightly lighted tender, the whistle, bell, and other signals from the engine, was the sole proximate cause of the collision, and a plea that plaintiffs were contributorily negligent. The evidence concluded, defendant insisting both that there was no proof of defendant's negligence, and that plaintiffs were contributorily negligent, moved for a verdict. The motion was denied, and there was a verdict and judgment for plaintiffs. This appeal tests whether there was error in refusing to instruct.

Appellant recognizes and accepts its burden to show that plaintiffs' case failed, as matter of law, either for want of proof that defendant was negligent, or because the evidence conclusively established plaintiffs' contributory negligence. It insists that plaintiffs' evidence, except as to the presence of a flagman at the crossing, was negative, and that their denial of the flagman's presence was conclusively contradicted by the physical facts.

In support of its claim that evidence of negligence on its part is wholly wanting, it points out that plaintiffs did not testify that no signals were given. They testified merely that they did not see or hear any warning signs and signals, while its own evidence is direct, positive, and uncontradicted that the crossing was protected by a Louisiana law stop sign, and by a flagman at the crossing giving warning signals; that the engine's tender was brightly lighted, that the whistle was blown before and the bell was rung continuously after the engine started over the crossing, and that the sole proximate cause of the collision was plaintiffs' negligence in failing to stop at the sign and in coming on over the crossing in the dark, with all windows shut and obscured by fog and rain. Pollard v. Davis, Receiver, 5 Cir., 93 F.2d 193.

In support of its claim that plaintiffs were contributorily negligent, it points to plaintiffs' admissions that because it was raining and cold, all the windows in the car were up, that it was dark and foggy, and the windshield wiper was running to keep the mist and rain off the front window so that plaintiff driver could see in front, that he did not see and did not stop at defendant's Louisiana law stop sign, nor did he look to the side of the car until at the moment of the collision, but he looked and drove straight ahead, and did not see the engine until he was practically in collision with it.

Plaintiff Giles testified on direct:

"I didn't see any sign of a railroad train before I got to this crossing where the accident happened. I did not hear any whistle, I did not hear any bell, I did not see any headlights or lights on the train. The first time I saw this train was when it was fixing to hit us when we was in the center of the track, and Lonnie hollered `Look out, Willie.' I looked out of the window and the train slapped us over. We were then about twelve feet from the engine. I did not see any lights on the train when I looked out the side and saw it. I am positive there was no flagman there at that intersection; there was nobody there with a red lantern."

And on cross-examination:

"The first time I saw this train I was right on it. I was too close to do anything about it. All of the glasses in the car were up because it was raining and dark and foggy. I was using the windshield wiper to keep the mist and rain off the front window; the side windows were clean. If they were not I would have kept them down. My headlights were burning and I could see about 50 feet ahead. When I first saw the engine we were in the center of the track. Lonnie, the other plaintiff said `Look out, Willie' and I looked out. I do not know how fast I was going. I told you in the beginning I did not know how fast, but I was going along at a common, ordinary speed. I was not running real fast. At the first crossing, that of the Illinois Central I stopped at that first red light. We stopped at the first track, and the car was in second when the train hit me. I stopped at the first track because I saw caution. I had my car in second when the engine hit us; I ran it 200 feet from the first track where I stopped to when it hit me, in second.

"I was looking straight ahead up the road and traveling about 10 or 15 miles an hour. I was looking straight ahead. When I saw the train we were in the center of the track with the car."

Lonnie Jackson, the other plaintiff, testified:

"I cannot tell how fast Giles was driving his car on the morning of the accident, but it was running about moderately. I do not think it was over 15 miles an hour, something like that. I know where that railroad track is. I saw no lights, no signs at the crossing, and I did not hear anything from the train. I did not hear any bell from the train. I did not hear anything like that. I did not see the engine that hit the automobile. I just seen the light under the train and hollered to the man, but the thing was right on us when I seen that light. There was a little rain falling and I could not see the train. I was very familiar with that little crossing there; he was not, but I was. I worked there a long time. I did not see any other lights, just the light in the oil pan under the engine. The automobile was not on the track when I saw the light. It was right at it. I figured it was a train and I seen...