Allen v. Texas & Pacific Ry. Co.

• Decision Date: 01 May 1952
• Docket Number: No. 13716.,13716.
• Citation: 195 F.2d 545
• Parties: ALLEN v. TEXAS & PACIFIC RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

195 F.2d 545 (1952)

ALLEN v. TEXAS & PACIFIC RY. CO.

No. 13716.

United States Court of Appeals Fifth Circuit.

April 5, 1952.

Rehearing Denied May 1, 1952.

Seth Lewis, Leon S. Haas, Jr., Opelousas, La., for appellant.

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

Before HOLMES, RUSSELL and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is in an action to recover damages for personal injuries sustained by the appellant in a collision of his automobile with appellee's train at a railroad crossing in Opelousas, Louisiana. At the close of the evidence, defendant filed a motion for a directed verdict. The court reserved its ruling on the motion, under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.; upon return of the jury's verdict for the plaintiff, the court sustained the motion and entered judgment for the defendant notwithstanding the verdict. The decisive question on appeal is whether the district judge was correct in entering judgment non obstante veredicto on the ground of plaintiff's contributory negligence, which is a complete bar to recovery under the Louisiana law. Lehon v. New Orleans Public Service Ice, Inc., 10 La.App. 715, 123 So. 172, 174; Daricek v. Forrest, La.App., 173 So. 601, 603; Slayter v. Texas & Pacific Railway Co., La.App., 182 So. 343, 346; Matthews v. New Orleans Terminal Co., La.App., 45 So.2d 547, 552.

The accident occurred at 3:40 o'clock A. M., on January 6, 1949, when the plaintiff, driving west on Landry Street, ran his automobile into the engine of appellee's train, which was traveling south, crossing Landry Street. At the point where appellee's tracks cross said street, the width of the street is 50 feet, and the sidewalks on each side are approximately 4½ feet wide. The length of the tracks between the sidewalks is 53 feet, the difference in the length and width of the street being due to the angle at which the tracks cross the street. On the north side of the street, east of the tracks, was a grocery store that blocked the view of any motorist, approaching the track from the east, until he reached a point approximately 30 feet from the first rail. The plaintiff was familiar with the location of the crossing, having gone over it many times. His version of the accident was that he was driving between 20 and 25 miles per hour when he approached the crossing; that within 35 or 40 feet from the crossing he slowed down to about 15 miles per hour, looked to his right and left, and, assuming that his way was clear, accelerated his car toward the tracks; that the locomotive, running at a speed of approximately 6 miles per hour, pulled out in front of him; that he turned to the left, but could not avoid hitting the engine. The evidence shows that plaintiff's automobile hit the engine beneath the cab at a point approximately 28 feet from the front end of the engine, the impact being of sufficient force to break an iron brake, and bend a steel driving rod out of line by two inches.

The location of the collision was the center of the street. The appellee's head brakeman testified that the train stopped approximately four feet from the north sidewalk; that he proceeded to the center of the street, looked in both directions, did not see any traffic approaching, so gave the engineer a come-ahead signal; that, after he gave the signal, he saw an automobile appear over the Southern Pacific tracks to the east (which tracks were later determined to be 1262 feet east of the appellee's tracks); that, after the engine had reached the center of the street, he stepped onto the front of the engine and rode on it across the street; and that the front end of the engine had passed the south border of the street at the time of the collision. The plaintiff testified that he did not see any light from the engine, heard no whistle or bells, and that the grocery store on the north side of the street obstructed his view of the tracks in that direction.

We agree with the court below that the accident could not have happened in the manner described by the plaintiff, because his description was in complete conflict with arithmetical computation and physical possibility.¹ Upon consideration of the entire record, and adopting a view most favorable to the plaintiff, allowing him every fair and reasonable inference that the evidence justifies, we are of the opinion that he did not exercise the precaution required of him by law, and that the lack of ordinary care and prudence on his part was the proximate cause of his injuries.

The plaintiff also attempted in the court below to invoke the doctrine of last clear chance; and he asserts that doctrine as ground for reversal on this appeal. In order that this doctrine may be invoked, it must appear that the appellee was aware, or reasonably should have been, that the plaintiff was in a position of peril. There is no evidence in the record to support such a finding. The train crew had the right to assume that the plaintiff would stop short of the track, since the train had already preempted the street prior to his arrival at the crossing. The crewmen were not negligent in failing to anticipate the negligence of the plaintiff. Pollard v. Davis, 5 Cir., 93 F.2d 193; Eggleston v. Louisiana & A. Railway Co., La.App., 192 So. 774; Wright v. Texas & N. O. Ry. Co., La.App., 19 So.2d 894, 897; Levy v. New Orleans & Northeastern Railway Co., 20 So.2d 559, 565; Matthews v. N. O. Terminal Co., 45 So.2d 547, 553; Bordenave v. Texas & N. O. Ry. Co., La.App., 46 So.2d 525, 529; Calvert Fire Insurance Co. v. Texas & Pacific Ry. Co., La.App., 55 So.2d 693.

In our opinion, the court below was correct in entering judgment on the motion for a directed verdict, and the judgment so entered should be affirmed. Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Eckenrode v. Pennsylvania R. Co., 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41; Northern Pacific Ry. Co. v. Bacom, 9 Cir., 91 F.2d 173; Great Northern Railroad v. Taulbee, 9 Cir., 92 F.2d 20; Louisiana & Arkansas Ry. Co. v. Jackson, 5 Cir., 95 F.2d 369; Rule 50(b), Federal Rules of Civil Procedure.

Affirm...