Brown v. Louisville and Nashville RR Co., 15933.

• Citation: 234 F.2d 204
• Decision Date: 25 May 1956
• Docket Number: No. 15933.,15933.
• Parties: Gloria Mae BROWN, in person, and on behalf of her minor children, Joann and Velda Marie, Appellants, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

234 F.2d 204 (1956)

Gloria Mae BROWN, in person, and on behalf of her minor children, Joann and Velda Marie, Appellants, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee.

No. 15933.

United States Court of Appeals Fifth Circuit.

May 25, 1956.

John W. Read, Cicero C. Sessions, New Orleans, La., for appellants.

Harry McCall, Jr., Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

This appeal presents the question whether the Court below was clearly erroneous in its finding that the Railroad Company was not liable to plaintiffs for the death of their husband and father, killed in a crossing collision between the truck he was driving and the Railroad's passenger train. The trial Court, sitting without a jury, having heard the evidence and considered written briefs, entered its findings in the form of a written opinion¹ setting forth that, although the decedent and the Railroad Company were both guilty of negligence, the decedent had the last clear chance to avoid the negligence of the Railroad Company and, therefore, his beneficiaries were not entitled to recover.

Plaintiffs appealed from this decision and claim here that the findings of the Court below were clearly erroneous. The Railroad Company, as appellee, claim that these findings are supported by the evidence and, further, that the evidence fails to disclose any negligence on the part of the engineer and fireman operating the train which proximately contributed to Brown's death. We agree with the contentions of the Railroad Company. The controlling facts are not in dispute, being furnished by the engineer and fireman of the train, who were the only eye witnesses.

The passenger train approached the crossing at a lawful rate of speed and after giving the bell and whistle signals required by law. The deceased came upon the crossing from the fireman's side and was first observed by him as the cement-mixer truck, which he was driving up a slight grade, was entering upon a "derail" track about twenty-five feet away from the first rail of the track upon which the train was moving. The truck was moving very slowly when the fireman first saw it and could have been stopped in a few feet. The fireman did not give the alarm to the engineer until the truck had advanced closer to the track on which the train was moving and when, instead of stopping, it gave a sudden burst of speed, indicating that the driver was going to try to beat the train across. Until that moment the fireman was not called upon to act because that was the first indication he had that the truck would not stop. Both his testimony and the law gave support to his assumption that the truck would be brought to a stop in a place of safety.

The fireman was placed on the stand by plaintiffs and subjected to prolonged and searching cross-examination, and established without controversy that he saw the truck approaching at a place of safety and watched it advance, firm in the belief that the truck would stop, and had nothing to change that conviction until, instead of stopping, the driver increased his speed just before reaching the track of the collision.² Immediately after the fireman gave the alarm the engineer applied his brake in emergency but the braking action did not take effect until immediately before the impact. The right front corner of the engine struck the truck about at its rear tandem wheels and the train ran 526 feet before stopping.

Louisiana adheres to the rule of uniform application that the crew-men in charge of a train may assume that an automobile approaching its track under such circumstances will stop before reaching it. Bordenave v. Texas & New Orleans R. Co., ...