Louisiana & Arkansas Ry. Co. v. Fireman's Fund Ins. Co.

• Citation: 380 F.2d 541
• Decision Date: 22 June 1967
• Docket Number: No. 23788.,23788.
• Parties: LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellant, v. FIREMAN'S FUND INSURANCE COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

380 F.2d 541 (1967)

LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellant, v. FIREMAN'S FUND INSURANCE COMPANY et al., Appellees.

No. 23788.

United States Court of Appeals Fifth Circuit.

June 22, 1967.

Arthur R. Carmody, Jr., Wilkinson, Lewis, Woods & Carmody, Shreveport, La., for appellant.

Leo Gold, Jimmy M. Stoker, Gold, Hall & Skye, Alexandria, La., for appellees, Leo J. Bonial and Fireman's Fund Insurance Co.

Robert B. Neblett, Jr., Neblett & Fuhrer, Alexandria, La., for appellees, Thomas Mathews, Milton Snow and French Unique Laundry & Cleaners.

Before HUTCHESON, GEWIN and GOLDBERG, Circuit Judges.

HUTCHESON, Circuit Judge:

Seventeen of its freight cars having been derailed when a train was brought to a sudden emergency halt in order to avoid colliding with a laundry truck stalled upon the railroad tracks, the appellant, Louisiana & Arkansas Railway Company, filed suit for damages¹ against the truck driver, his employer, and their insurer. The appellant alleged that the truck driver was negligent in having stalled the truck on the tracks. The appellees answered, denying negligence by the driver and asserting that it was the negligent operation of the train which had caused the derailment. The case was tried to the district court, sitting without a jury, which found that neither the truck driver nor the train operators had been guilty of negligence. Accordingly, it was ordered that the plaintiff take nothing, and the action was dismissed. We affirm.

On the morning of June 25, 1962, Leo J. Bonial was engaged in delivering laundry on his regular route through Rapides Parish in Louisiana. He was driving a 1961 half-ton panel truck which had a standard stick shift. Bonial had turned off Louisiana Highway One and traversed the railroad tracks by means of a private road, as he had done many times before, to deliver laundry to the residence of Julian McNutt. After completing the delivery, Bonial turned the truck around to return to the railroad crossing. The road leading up to the crossing being on a slight incline, Bonial placed the truck in low gear. As he slowed to cross the tracks, the truck stalled and stopped directly astride the tracks. It is a matter of considerable dispute as to why the truck stalled.

Bonial got out of the truck and tried to push it off the tracks but was unable to do so because the wheels were lodged in holes which potted the crossing.² There was evidence that both the McNutt family and the railroad company previously had maintained the crossing. The truck was on the crossing approximately 3 to 5 minutes before Bonial noticed a train approaching from the south.

The northbound train, traveling about 41 to 42 miles per hour, was in route from New Orleans to Shreveport. Stretching out over a mile and a half of track, it was composed of a diesel engine unit and 171 freight cars, 43 of which were loaded. In the rural area surrounding the crossing, the tracks were straight and the train crew's visibility was not restricted. Bonial became aware of the train when it was a mile away; the crew saw the truck at a distance of ¾ mile but assumed that it would move off the tracks and did nothing to slow the train. From one-half mile away, they observed Bonial attempting to push the truck from the tracks. Then he ran towards the train, waving his arms and trying to attract attention. Blowing the train's warning whistle, the crew proceeded to stop the train.

All the freight cars had standard railroad air brakes. Deceleration by a conventional application of the brakes would not have stopped the train for a mile, so the emergency brakes, by which the train could be stopped in a matter of seconds, were used. Fortunately, the train was halted some 25 to 50 feet short of the stalled truck. Unfortunately, however, the tremendous force released by the application of the emergency brakes and the resulting slack action in the long train caused the derailment of 17 cars. A passer-by helped Bonial push the truck off the tracks. It remained stalled for 3 to 5 minutes before Bonial was able to start it again.

The familiar rule that findings of fact from a nonjury trial will not be set aside unless clearly erroneous, F.R. Civ.P. 52(a), applies to a finding on the issue of negligence. See McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Stephens v. Osaka Mercantile Steamship Co., 328 F.2d 604 (5th Cir. 1964) (per curiam); Black v. Greyhound Corp., 314 F.2d 485 (5th Cir. 1963) (per curiam). Hence, the finding of the court below, that neither Bonial nor the railroad was negligent, must be affirmed unless we are left with the firm conviction that a mistake has been committed.

The main thrust of appellant's contentions is that the district court erred in failing to apply the doctrine of res ipsa loquitur ("the thing speaks for itself") to the facts of this case and infer that Bonial was negligent in stalling the truck. Under Louisiana law, which governs this diversity case, res ipsa loquitur applies where (a) the accident was caused by an instrumentality within the control of the defendant, (b) such an accident ordinarily does not occur in the absence of negligence, and (c) the evidence as to the true explanation of the accident is more readily accessible to the defendant than to the plaintiff. Northwestern Mut. Fire Ass'n v. Allain, 226 La. 788, 77 So.2d 395, 397, 49 A.L.R. 2d 362 (1954). The effect of the doctrine is procedural: it raises an inference of negligence which merely shifts...