Burdis v. Texas & P. Ry. Co., No. 75-4357

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, AINSWORTH and FAY; AINSWORTH
• Citation: 569 F.2d 320
• Parties: Lionel BURDIS, Plaintiff-Appellant, v. The TEXAS & PACIFIC RAILWAY COMPANY, Defendant-Appellee, Commercial Union Insurance Company, Intervenor.
• Docket Number: No. 75-4357
• Decision Date: 13 March 1978

Page 320

569 F.2d 320 Lionel BURDIS, Plaintiff-Appellant,
v.
The TEXAS & PACIFIC RAILWAY COMPANY, Defendant-Appellee,
Commercial Union Insurance Company, Intervenor. No. 75-4357. United States Court of Appeals,
Fifth Circuit. March 13, 1978.

Page 321

Ralph D. Hillman, Thibodaux, La., for plaintiff-appellant.

J. Barnwell Phelps, Esmond Phelps, II, New Orleans, La., for defendant-appellee.

Charles J. LeBlanc, Thibodaux, La., for other interested parties.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, AINSWORTH and FAY, Circuit Judges.

AINSWORTH, Circuit Judge:

Plaintiff Lionel Burdis, a Louisiana resident, brought this diversity action, see 28 U.S.C. § 1332, against defendant Texas & Pacific Railway Company (hereinafter "Texas & Pacific"), a Texas corporation, for personal injuries allegedly arising out of an accident which occurred on October 24, 1974, at approximately 9 a. m., when a railroad locomotive owned by Texas & Pacific collided with an automobile in which Burdis was a passenger. ¹ Burdis was seriously injured. The accident occurred at the intersection of railroad tracks and a road located on the property of the Bessie K Plantation in St. James Parish, Louisiana. A jury heard the case on October 16 and 17, 1975 and found for the railroad. Burdis appeals from the adverse judgment.

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Burdis contends first that "(i)t was prejudicial error for the trial court to submit the issue of whether the road (at which the accident happened) was 'public' or 'private' to the jury, when all of the evidence indicated it was a 'public' road, no evidence indicated it was a 'private' road, and the entire question of negligence turned on the status ('public' or 'private') of the road." (emphasis in original) In his assignment of error plaintiff Burdis refers to the fact that the trial court submitted to the jury the issue of whether the road which Burdis was traveling at the time of the accident was "public" or "private." The jury, in addition to its general verdict for defendant, also found through a special interrogatory that the road was private. The question is of considerable importance to the instant litigation because in Louisiana a railroad owes a higher standard of care to the public at an intersection between its tracks and a public road than it does at an intersection between its tracks and a private road.

Louisiana law provides that a public road is any road "open to public use," regardless of whether the road is publicly or privately owned. Galloway v. Wyatt Metal & Boiler Works, 189 La. 838, 847, 181 So. 187, 190 (1938). At an intersection between railroad tracks and a public road, a locomotive must sound "a bell and a whistle or horn" at a specified distance from the crossing as it approaches. The railroad which controls the tracks must also erect and maintain a "Railroad Cross Buck" sign at such a public crossing. These safety features are not applicable to the intersection of railroad tracks and a private road, although even there a railroad is, of course, responsible for its otherwise negligent acts. La.Rev.Stat.Ann. §§ 45:561, 45:562. ² See Texas & Pacific Railway Co. v. Laborde, 5 Cir., 1958, 257 F.2d 587, 592, cert. denied, 358 U.S. 928, 79 S.Ct. 314, 3 L.Ed.2d 302 (1959); Guidry v. Texas & N. O. R. Co., 56 So.2d 611, 614 (La.App.1952); Lockhart v. Missouri Pac. R. Co., 153 So. 577, 580 (La.App.1934); La.Rev.Stat.Ann. §§ 32:1(17), (54).

It is undisputed in this case that the crossing at which the accident occurred was unmarked by any sign, railroad or highway. Whether the locomotive sounded warning signals is less certain; Texas & Pacific presented credible evidence that it did and Burdis also introduced credible evidence that it did not. The question of whether the road was public or private, and therefore whether the railroad owed a higher standard of care, was thus of critical importance to the outcome of the case. Predictably,

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it was vigorously disputed. Burdis, as well as the driver of the car involved in the accident, the additional passenger, and the driver of a car closely following Burdis' car at the time of the accident, all testified that the road in question was open to the public. Texas & Pacific, on the other hand, offered the testimony of a local resident, who stated that the road was not used by the public. Another Texas & Pacific witness, the officer who investigated the accident, also testified that the road was private. Moreover, Burdis himself on cross-examination admitted that he had seen a sign on the road indicating its private nature and that travelers were to proceed on it at their "own peril." In light of such conflicting evidence, the district court properly submitted the "public v. private" question to the jury, for it is hornbook law that such questions of fact are peculiarly within the jury's province. See Lavender v. Kurn, 327 U.S. 645, 652-53, 66 S.Ct. 740, 743-44, 90 L.Ed. 916 (1946). See also Fed.R.Civ.P. 49(b). Burdis' contention that the district court erred is therefore without merit.

Plaintiff Burdis next asserts that the district court committed reversible error in two of its evidentiary rulings. First, plaintiff argues that the trial court erred by excluding seven photographs allegedly showing certain physical characteristics of the road in question and purportedly offered to show the public nature of the road. The district court sustained Texas & Pacific's objection to the introduction of these photographs on the morning of trial because they were not listed on the pretrial order. We find no error in this ruling. The Pretrial Notice to counsel in this case states that "(e) xcept for good cause shown, the Court will not permit the introduction of any exhibits, including exhibits to be used solely for the purpose of impeachment, unless they have been listed in the Pre-Trial Order, or unless the necessity for the use of any particular exhibit reasonably could not have been...