Palisi v. Louisville & Nashville Railroad Co., Civ. A. No. 2676(S).

• Decision Date: 02 March 1964
• Docket Number: Civ. A. No. 2676(S).
• Citation: 226 F. Supp. 651
• Parties: Vincent A. PALISI, Plaintiff, v. LOUISVILLE & NASHVILLE RAILROAD CO., Inc., Defendant.
• Court: U.S. District Court — Southern District of Mississippi

226 F. Supp. 651

Vincent A. PALISI, Plaintiff, v. LOUISVILLE & NASHVILLE RAILROAD CO., Inc., Defendant.

Civ. A. No. 2676(S).

United States District Court S. D. Mississippi, S. D.

March 2, 1964.

Howard McDonnell, Arnaud O. Lopez, Biloxi, Miss., for plaintiff.

George Morse, Gulfport, Miss., W. Brevard Hand, Mobile, Ala., for defendant.

WILLIAM HAROLD COX, Chief Judge.

Phillip Palisi (age 16) was killed at a public crossing by the east bound Louisville & Nashville Railroad freight train, about 4:30 A.M., May 7, 1961. A jury awarded the plaintiff a verdict for twenty thousand dollars. This suit was brought under the Mississippi Wrongful Death Statute to recover from the railroad for the fatal injury on this occasion of the son of the plaintiff. This train was drawn by a diesel locomotive on this occasion and was operating at about twenty-five miles per hour as it crossed St. Peter's Street at Gate No. 6 on Keesler Air Force Base in Biloxi, Mississippi. The railroad requested a preemptory instruction under Rule 50 at the conclusion of the evidence, and action thereon was deferred by the Court to await the verdict of the jury; whereupon the defendant timely moved under that rule for a judgment notwithstanding the verdict, or in the alternative, for a new trial.

The facts in this case are without substantial dispute. Phillip Palisi was a house guest of Jeanne LeCourt (age 14). Both of them lived in a suburb of New Orleans. The LeCourts had a cottage at Waveland where the deceased was visiting. About 6:30 P.M., on May 6, these young people persuaded Roger Alverson, an airman stationed at Keesler Field and a friend of the deceased, to spend the evening with them at the LeCourt home. About 4:00 A.M., Roger became dissatisfied and requested that he be taken back to Keesler Field. The deceased and Jeanne LeCourt drove Roger in the LeCourt car to the air base with the decedent driving. When Roger got out of the car at Keesler, Jeanne LeCourt got in the driver's seat, and the decedent moved to the position beside her on the front seat. Thus the parties traveled through the base enroute home a few hundred yards in a southerly direction to a street which paralleled the railroad tracks, and which had a steel mesh fence constructed along the side thereof as the boundary of the air base at that point. The parties then drove easterly along that street about a city block to St. Peter's Street which crossed this railroad track at Gate No. 6 in a southerly direction. At the point of this intersection of this street with St. Peter's Street there was erected at Christmas time of 1959 a very small guard shack off the right-of-way for the protection of the air guard at this gate. This shack obscured the Mississippi stop sign on the east side of St. Peter's Street to some extent from view at one angle thereto when proceeding easterly and turning south at that point. This statutory sign was taller than the shack, and was probably twenty feet or more south thereof.

On this occasion under these circumstances this train (with its stationary head light burning, its wigwag light operating, with its bell ringing, and air horn blowing for this crossing) was approaching said crossing, while this automobile driven by Jeanne LeCourt, with some of the windows down, drove along this street parallel to said track just ahead of said train. This railroad crossing was well lighted by flood lights on the north and south side thereof. The crossing was slightly elevated on the northern approach thereto, and was slightly depressed on the south side.

Jeanne LeCourt turned south on St. Peter's Street at Gate No. 6, operating the automobile at about ten or twelve miles per hour. She did not stop at this crossing as required by state law. She said that she could not see the stop sign, and thus did not know of the existence of this railroad in that vicinity with which she was not very well acquainted, but she had driven over this crossing through Gate No. 6, five or six times within the past few days prior to this accident. As this automobile approached this railroad crossing, with the train coming east, an air police dressed in military uniform and wearing a white hat, and standing in the middle of St. Peter's Street, signaled Jeanne LeCourt to stop her car, but she pulled the automobile slightly to the east of the police, and passed him, and was immediately struck by the train. The air policeman raised his right open hand forward, and thus standing in the middle of St....