Allen v. Texas & Pacific Ry. Co., Civ. A. No. 2873.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Writing for the CourtPORTERIE
Citation96 F. Supp. 520
Docket NumberCiv. A. No. 2873.
Decision Date05 March 1951
PartiesALLEN v. TEXAS & PACIFIC RY. CO.

96 F. Supp. 520

ALLEN
v.
TEXAS & PACIFIC RY.
CO.

Civ. A. No. 2873.

United States District Court W. D. Louisiana, Opelousas Division.

March 5, 1951.


96 F. Supp. 521
COPYRIGHT MATERIAL OMITTED
96 F. Supp. 522
Seth Lewis, Opelousas, La., Leon S. Haas, Jr., Opelousas, La., for plaintiff

Frank H. Peterman, Alexandria, La., for defendant.

PORTERIE, District Judge.

When we overruled the motion for a directed verdict, at the close of the whole case, we felt then that the motion would likely have to be sustained later. However, as indicated by Rule 50(b) of the Federal Rules of Civil Procedure for the United States District Courts, 28 U.S.C.A., we thought the verdict of the jury should be sought to prevent the repetition of a whole new trial, in case we were wrong.

Motion for directed verdict at close of case (Judgment notwithstanding verdict)

In passing on this motion, the evidence must be considered in its aspect most favorable to the plaintiff, with every fair and reasonable inference which the evidence justifies. Mandro v. Vibbert, 4 Cir., 170 F.2d 540.

This action is one in tort, under Art. 2315 of the Revised Civil Code of Louisiana. Therefore, the laws of Louisiana apply. Erie R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

If, by the clear preponderance, the evidence shows that the plaintiff was guilty of contributory negligence, furnishing the proximate cause of his injury, he is barred from recovering any damages, regardless of the negligence of the defendant.

In Tucker v. Illinois Cent. R. Co., 141 La. 1096, 76 So. 212, 213, the Louisiana Supreme Court said:

"And, as has been held by this court and others:

"`No failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing, upon approaching a railway crossing, and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad's failure to perform its duty.'"

See, also, Lehon v. New Orleans Public Service, 10 La.App. 715, 123 So. 172; Mese v. Summers, La.App., 170 So. 510; Daricek v. Forrest, La.App., 173 So. 601.

Headnote 3 of the syllabus by the Court in Borell v. Cumberland Telegraph & Telephone Co., 133 La. 630, 63 So. 247, L.R.A. 1916D, 1064, recites:

"Whether a person's own negligence is the sole, proximate cause of an injury that he receives or is a cause contributing directly thereto, the result is the same. He has no action for the recovery of damages in either case."

Plaintiff, Allen, admitted that he knew he was approaching a railroad track and for that reason he reduced his speed to 15 miles per hour. He stated further that, when he made this reduction in the speed of his automobile, he was 30 or 35 feet from the railroad track. He looked to the right but admitted that his view of the track north of Landry Street was obstructed by a building and for that reason he could not see a train approaching from that direction. He then looked to the left where the view was clear, but without stopping or making any other effort to see the track on the north side of the street, he continued on his way and suddenly saw the rear part of the locomotive about 10 feet in front of him. His car hit the locomotive underneath the front of the cab of the engine at a point about the middle of the street. He estimated the speed of the train at 6 miles per hour.

As he approached the Texas & Pacific crossing he says he was going between 20 and 25 miles an hour. We quote from his testimony:

"When I approached their crossing I was about 35 or 40 feet from the crossing and I slowed down. * * * I slowed down to I imagine under twenty — about 15 miles an hour. * * * I didn't hear

96 F. Supp. 523
any bell. I didn't see any flagman. I looked to the right and they had a building and you can't see because it is a blind crossing unless you move beside it and I didn't see any train and I looked to my left at this opening where the track runs at an angle and you can see down that far and I didn't see anything coming and when I looked up again that is when the train pulled out in front of me and I was right on the edge of the track and I applied my brakes and turned to the left and couldn't avoid hitting him."

Plaintiff said he was familiar with the track, having crossed it frequently, and that he had been living beyond it for about a month.

On cross-examination, when asked if he stopped his automobile before going on the crossing, he answered that he did not, but he slowed it down considerably. He said that he did not bring his car to a stop but reduced his speed to 15 miles an hour when he was about 30 or 35 feet from the crossing. He was asked whether, at 35 feet from the crossing, he could see the railroad track north of the sidewalk and he said, "No, sir, because of the building there". He could not see any of the track north of the crossing when he was 35 feet away and he repeated that at this distance he could see only to the corner of the building. He was asked at what distance he could stop his car going at 15 miles an hour on an upgrade and he answered it could be done in about 18 or 20 feet at the most. When he slowed down to 15 miles an hour, he was 35 feet from the crossing and at that time the building obscured his view north of the crossing so that he could not know whether there was a train back of the building or not. He was asked about continuing toward the crossing when his visibility was obscured by the store and if it were not true that he went on ahead toward the track under these conditions without making any stop. He was asked why he did not see the train when he was 30 or 35 feet from the crossing and he said, "The only thing that prevented me from seeing it there was no engine out there". He was asked what prevented him from seeing it at that time north of the crossing, and he said it was, "Because he wasn't sticking into view and if there had been a flagman and train at the edge of the road I would have seen it". He repeated that prior to hitting the locomotive he looked to the left where the view was open and he could see down the track. He said, "It is the only clear view you get"; and that when he looked in front of him he was right at the track and, "I assumed nothing was coming and I started to accelerate my car when the engine came out from the side". He was about 10 feet from the track when he saw the engine in front of him. On re-direct examination the plaintiff said that when he saw the train it was going 6 or 7 miles an hour. On re-cross examination he was asked if it was not a fact that the front of the engine was already across the street when the collision occurred and he said, "Yes, sir, it would have been across the street".

Landry Street, at the point of the accident, is 50 feet wide from curb to curb.1

The track crosses at a slight angle and both plaintiff's and defendant's witnesses estimated the length of the track between the curbs, one stating that it was 53 feet and the other that it was between 50 and 55 feet. On either side of the curb there are sidewalks that are practically 4½ feet wide. There is no dispute that the collision occurred at the middle of the street; nor is there any dispute that the plaintiff's car struck the locomotive under the front of the cab of the engine.2 The cab of the locomotive is

96 F. Supp. 524
28 feet back from the front of the engine. The front of the engine, according to plaintiff, was not at the sidewalk at the time he looked to the right. The cab of the engine would therefore have been at least 28 feet or more north of the sidewalk at this time. In order for the cab of the engine to reach the middle of the street, it was necessary for the engine to travel at least 28 feet plus the width of the sidewalk of 4½ feet, plus half the width of the street of 27 feet or a total of approximately 60 feet or more. Plaintiff himself swore that the train was going about 6 miles an hour. He claims he looked to the right and saw nothing and that the front of the train was not at the sidewalk at that time. He was then 30 or 35 feet from the track. The train was going, according to plaintiff, 6 miles per hour; and plaintiff was going, according to his own statement, 15 miles an hour. Nevertheless, he traveled 30 or 35 feet at 15 miles per hour to reach the point of collision, while the train traveled 60 feet or more at 6 miles an hour to reach the same point. To put it in another way, plaintiff was traveling 15 miles an hour, which is equivalent to 22 feet per second; it therefore took him about 1.5 seconds to reach the point of collision from the time he looked to the right. The train was traveling, according to plaintiff, 6 miles per hour, which is 8.8 feet per second. In order for the cab of the engine to reach the center of the street, with the engine starting just north of Landry Street, it would have required about 7 seconds. It is readily seen, therefore, that the accident could not have happened in the manner described by plaintiff, because it is in complete conflict with an arithmetical computation, which cannot be disputed. Allen just could not have looked at the time and place he said he did; and the train just could not have been out of his view if he had looked at that time and place. To hold otherwise, we must decide that 1.5 seconds is the same as 7 seconds; that an automobile going 15 miles an hour will take the same time to cover a distance of 30 feet that a train going 6 miles an hour will take to cover a distance of 60 feet

Let us consider the Tatman Grocery, located near the track, north of the sidewalk. This is the building that plaintiff claims obstructed his view to the right. The only plat of the locality, filed in evidence, was the one prepared by the defendant. The City Engineer for Opelousas, Louisiana, where the accident occurred, who testified for...

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3 practice notes
  • Hichino Uyeno v. Acheson, No. 2154.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • March 23, 1951
    ...States before the beginning of the war, and their right to claim American citizenship was not challenged. Indeed, as stated before, the 96 F. Supp. 520 brother returned to the State of Washington and registered for the draft under the Selective Service Act of 1940. There is nothing in the a......
  • DE JEAN v. Great American Indemnity Company, No. 3977.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • December 6, 1954
    ...in a verdict upon grounds that were not substantial, such as Judge Porterie set aside in Allen v. Texas and Pacific Ry. Co., D.C., 96 F.Supp. 520, This court certainly believes that the verdict here was overwhelmingly against the weight of the evidence. This court has the greatest hesitancy......
  • Brown v. Louisville and Nashville RR Co., No. 15933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 25, 1956
    ...La.App. 1950, 46 So.2d 525; Leger v. Texas & P. R. Co., La.App.1953, 67 So.2d 775; Allen v. Texas & Pacific Ry. Co., D.C. W.D.La.1951, 96 F.Supp. 520, and cases cited. The Court below based its conclusion upon the finding that the decedent had the last clear chance to avoid the accident und......
3 cases
  • Hichino Uyeno v. Acheson, No. 2154.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • March 23, 1951
    ...States before the beginning of the war, and their right to claim American citizenship was not challenged. Indeed, as stated before, the 96 F. Supp. 520 brother returned to the State of Washington and registered for the draft under the Selective Service Act of 1940. There is nothing in the a......
  • DE JEAN v. Great American Indemnity Company, No. 3977.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • December 6, 1954
    ...in a verdict upon grounds that were not substantial, such as Judge Porterie set aside in Allen v. Texas and Pacific Ry. Co., D.C., 96 F.Supp. 520, This court certainly believes that the verdict here was overwhelmingly against the weight of the evidence. This court has the greatest hesitancy......
  • Brown v. Louisville and Nashville RR Co., No. 15933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 25, 1956
    ...La.App. 1950, 46 So.2d 525; Leger v. Texas & P. R. Co., La.App.1953, 67 So.2d 775; Allen v. Texas & Pacific Ry. Co., D.C. W.D.La.1951, 96 F.Supp. 520, and cases cited. The Court below based its conclusion upon the finding that the decedent had the last clear chance to avoid the accident und......

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