Brown v. Louisville and Nashville RR Co., No. 15933.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, , and CAMERON and BROWN, Circuit
Citation234 F.2d 204
Decision Date25 May 1956
Docket NumberNo. 15933.
PartiesGloria Mae BROWN, in person, and on behalf of her minor children, Joann and Velda Marie, Appellants, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee.

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.


234 F.2d 205

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...

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19 practice notes
  • Rutherford v. Illinois Central Railroad Company, No. 17865.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 26, 1960
    ...the Louisiana courts, are succinctly stated in Brown v. Louisville & Nashville R. Co., D.C.E.D.La.1955, 135 F.Supp. 20, affirmed 5 Cir., 234 F.2d 204. The doctrine is composed of the following elements: (a) the plaintiff in a position of peril of which he was unaware or unable to extricate ......
  • Deitz v. Greyhound Corporation, No. 15909.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 3, 1956
    ...189 La. 860, 181 So. 195; Rottman v. Beverly, 183 La. 947, 165 So. 153; and see Brown v. Louisville & Nashville Railroad Co., 5 Cir., 234 F.2d 204. --------...
  • Illinois Central Railroad Company v. Underwood, No. 15913.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 4, 1956
    ...of Highways, 1952, 221 La. 595, 60 So.2d 4; Brown v. Louisville and N. R. Co., D.C.E.D.La., 1955, 135 F.Supp. 28, affirmed 5 Cir., 1956, 234 F.2d 204. 22 All of the Mississippi cases cited here involved the action of railroad operatives in running trains into persons — mostly at crossings —......
  • Texas & Pacific Railway Company v. Laborde, No. 17174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 11, 1958
    ...of the weeds which proximately caused the injury. Cf. Stewart v. Kroger, 198 Miss. 371, 21 So.2d 912, and Brown v. Louisville, 5 Cir., 234 F.2d 204. We thus reach the question, whether, upon the undisputed evidence, indeed upon plaintiff's clear admissions, and under the settled law of Loui......
  • Request a trial to view additional results
19 cases
  • Rutherford v. Illinois Central Railroad Company, No. 17865.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 26, 1960
    ...the Louisiana courts, are succinctly stated in Brown v. Louisville & Nashville R. Co., D.C.E.D.La.1955, 135 F.Supp. 20, affirmed 5 Cir., 234 F.2d 204. The doctrine is composed of the following elements: (a) the plaintiff in a position of peril of which he was unaware or unable to extricate ......
  • Deitz v. Greyhound Corporation, No. 15909.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 3, 1956
    ...189 La. 860, 181 So. 195; Rottman v. Beverly, 183 La. 947, 165 So. 153; and see Brown v. Louisville & Nashville Railroad Co., 5 Cir., 234 F.2d 204. --------...
  • Illinois Central Railroad Company v. Underwood, No. 15913.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 4, 1956
    ...of Highways, 1952, 221 La. 595, 60 So.2d 4; Brown v. Louisville and N. R. Co., D.C.E.D.La., 1955, 135 F.Supp. 28, affirmed 5 Cir., 1956, 234 F.2d 204. 22 All of the Mississippi cases cited here involved the action of railroad operatives in running trains into persons — mostly at crossings —......
  • Texas & Pacific Railway Company v. Laborde, No. 17174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 11, 1958
    ...of the weeds which proximately caused the injury. Cf. Stewart v. Kroger, 198 Miss. 371, 21 So.2d 912, and Brown v. Louisville, 5 Cir., 234 F.2d 204. We thus reach the question, whether, upon the undisputed evidence, indeed upon plaintiff's clear admissions, and under the settled law of Loui......
  • Request a trial to view additional results

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