93 1132 La.App. 1 Cir. 10/7/94, Rivere v. Union Pacific R. Co.

• Decision Date: 07 October 1994
• Citation: 647 So.2d 1140
• Parties: 93 1132 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1140

647 So.2d 1140

93 1132 La.App. 1 Cir. 10/7/94

Bart P. RIVERE and Herman G. Rivere v. UNION PACIFIC RAILROAD COMPANY, Union Pacific Corporation the Parish of Iberville, Louisiana, Charles Fontenot, and State of Louisiana Through the Department of Transportation and Development.

No. 93 CA 1132.

Court of Appeal of Louisiana First Circuit.

Oct. 7, 1994.

Rehearing Denied Jan. 9, 1995.

Writ Denied March 24, 1995.

Walter L. Smith, Baton Rouge, for plaintiffs-appellees Bart P. Rivere and Herman G. Rivere.

Dorothy D. Thomas and Gayla Moncla, Baton Rouge, for defendant-appellant Missouri Pacific R. Co.

Stacey Moak, Baton Rouge, for defendant-appellant State of Louisiana, DOTD.

Daniel R. Atkinson, Baton Rouge, for defendant-appellant Parish of Iberville.

Before WATKINS, SHORTESS, CARTER, LeBLANC and FOGG, JJ.

[93 1132 La.App. 1 Cir. 2] WATKINS, Judge.

This case involves a collision between a pickup truck driven by plaintiff, Bart P. Rivere, and the engine of a train owned by Missouri Pacific Railroad Company (MOPAC). On appeal, defendants MOPAC and the State of Louisiana, through the Department of Transportation and Development (DOTD), raise issues concerning liability and quantum. We reverse in part and affirm in part.

FACTS

The record reflects the following facts. At approximately 9:00 a.m. on January 9, 1989, 22 year old Bart Rivere was driving a pickup truck owned by Herman G. Rivere at approximately 55 miles per hour on Louisiana Highway 1. The weather was cold and rainy. The windows of the truck were raised; the windshield wipers and radio were turned on. He slowed to approximately 20 miles per hour and turned right onto Laurel Ridge Road, a rural Iberville Parish road near White Castle, Louisiana. Bart Rivere passed an advanced railroad warning sign and a cross buck sign as he approached the MOPAC train tracks which run parallel to and approximately 130 feet from Louisiana Highway 1. He put the truck in neutral and coasted toward the elevated train tracks. At the crossing there were no flashing lights or gates, and no stop sign. Just before he reached the crossing, Bart Rivere looked to the left, saw a train approaching, and slammed on his brakes. Almost immediately, his truck collided with the lead engine of a northbound train owned by MOPAC.

As a result of the accident, Bart Rivere and Herman Rivere, plaintiffs, ¹ sued MOPAC ²; Charles Fontenot, ³ the train engineer; [93 1132 La.App. 1 Cir. 3] the Parish of Iberville; and DOTD. Plaintiffs settled with the Parish of Iberville and proceeded to trial against the remaining defendants.

After a bench trial, the court assessed the fault in causing the accident as follows: 50% to MOPAC for failure to blow the train's horn; 20% to MOPAC for failure to provide or maintain an adequate sight distance; and 30% to DOTD for failure to provide adequate sight distance or other protective measures. The court found Iberville Parish was free from fault. The trial court awarded damages in the sum of $504,806.71, which figure included $100,000.00 for past physical pain and suffering; $75,000.00 for future physical pain and suffering; $75,000.00 for past mental anguish; $25,000.00 for future mental anguish; $75,000.00 for loss of enjoyment of life; $50,000.00 for disability; $75,000.00 for lost future earning capacity; and $29,806.71 for medical expenses.

MOPAC and DOTD appeal that judgment. As to liability, MOPAC alleges the trial court erred in concluding that the train's horn was not sounded. MOPAC and DOTD argue that the trial court erred in its assessment of fault, including the findings that Iberville Parish and Bart Rivere were without fault. As to quantum, both DOTD and MOPAC allege the award was excessive.

LIABILITY OF RAILROAD

Initially, we will address two arguments advanced by MOPAC by which it seeks interdiction of the trial court's factual findings and a de novo review of the facts of this case by this court. First, MOPAC alleges the trial court committed prejudicial legal error by allowing witnesses Diana Vaughn and B.F. Dowers to be examined using statements to "refresh recollection" and then refusing to allow defendant's counsel to inspect the statements. Ms. Vaughn was one of several witnesses [93 1132 La.App. 1 Cir. 4] who was not on the train, but in the vicinity at the time of the accident, and testified that no train whistle was blown immediately before or at the time of the crash. Mr. Dowers was a crew member on the train at the time of the accident; he testified, as did other crew members, that the horn was blown. In response to this argument, plaintiffs contend that the use of the statements was entirely proper and that use of the statements did not occur during any critical parts of either witness's testimony. Considering the minimal use of the statements to refresh the memories of these witnesses and the cumulative nature of the testimony involved, we find that, if the trial court did err, such error would not have a prejudicial effect requiring the interdiction of the trial court's factual findings. Therefore, if any error did occur, it was harmless. MOPAC further asserts that the trial court was confused by the plaintiffs' presentation of evidence and testimony concerning tapes that possibly existed in the train to record conversation and speed, and that such is sufficient to interdict the trial court's factual findings. Initially, our review of the record does not convince us that any such confusion exists. Additionally, review of the trial court's appreciation of the facts of the case is a question of manifest error in its factual determinations, not of whether the factual findings should be interdicted. Interdiction occurs only when the trial court has made one or more legal errors which have a prejudicial effect on the case. Moore v. Clark, 517 So.2d 293 (La.App. 1st Cir.1987). See McLean v. Hunter, 495 So.2d 1298 (La.1986); Picou v. Ferrara, 483 So.2d 915 (La.1986).

The trial court found that this accident occurred because Bart Rivere did not have an audible warning that a train was approaching (no horn was blown) and because Bart Rivere was unable to see the train approaching in sufficient time to avoid the accident. On that basis, it assessed the railroad with 70% of the fault in causing the accident, 50% for failure to provide [93 1132 La.App. 1 Cir. 5] a sound warning and 20% for failure to maintain an adequate sight distance.

MOPAC contends the trial court manifestly erred in finding that it failed to blow the train's horn. In reaching its conclusion, the trial court relied on the testimony of the four persons who were not on the train and who testified that they heard no horn. MOPAC argues that the positive testimony of the railroad employees that the horn was blown is entitled to more weight than the negative testimony that the horn was not blown, citing Lagrange v. Missouri Pacific Railroad Company, 503 So.2d 1158 (La.App. 3rd Cir.1987). We find the Lagrange case is not dispositive of this issue. That case held that negative testimony that a person did not hear a warning signal will not prevail over positive and credible testimony that such a warning signal was displayed; positive testimony of the crew members can, however, be disregarded if the members of the train crew are not worthy of belief. In the instant case, the trial court found that "[t]he testimony of the four persons who were not on the train all support [the conclusion that Bart Rivere did not have an audible warning that the train was approaching].... This evidence was more credible to this factfinder than the testimony of some of the crew members." We find no manifest error in the trial court's conclusion that the testimony of the MOPAC crew members regarding the horn was not credible.

Herein, the trial court was faced with two versions of the facts. Some witnesses testified that the horn was blown; others testified that it was not blown. When conflicting evidence creates two possible views of the evidence and the factfinder's choice between the two views is reasonable in light of the entire record, the factfinder's choice between the two views can virtually never be clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). Therefore, we can find no manifest error in the trial court's determination that the train's horn was not blown.

[93 1132 La.App. 1 Cir. 6] MOPAC further argues that the trial court erred in assessing it with 20% fault because of the inadequate sight distance. MOPAC contends that because the obstructions were not within its right-of-way it is not responsible for the inadequate sight distance.

According to Louisiana law MOPAC has the duty to erect and maintain a "Railroad Cross Buck" sign at the crossing. LSA-R.S. 32:169. ⁴ The railroad also has the duty to maintain its right-of-way adjacent to the railroad tracks. It is uncontroverted that the cross buck sign was in place at the Laurel Ridge Road crossing at the time of this accident and that the railroad's 50 foot right-of-way was clear.

Any other duties of the railroad with regard to further safety devices rises in proportion to the increasing dangerousness of the crossing, as determined by an approaching vehicle's ability to see the oncoming train. This concept is referred to as the "dangerous trap" doctrine. A crossing is considered a "dangerous trap" when it is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train. When a dangerous trap exists, the railroad company will be held liable, unless it can show that it took unusual precautions, such as reducing the speed of the train, or increasing its warning or providing signaling devices, etc. Glisson v. Missouri Pacific Railroad Company, 158 So.2d 875 (La.App. 3rd Cir.1963). As discussed more fully below, the Laurel Ridge Road...