Eggleston v. Louisiana & A. Ry. Co.

• Decision Date: 03 November 1939
• Docket Number: 5997.
• Parties: EGGLESTON v. LOUISIANA & A. RY. CO. ET AL., AND FIVE OTHER CASES.
• Court: Court of Appeal of Louisiana — District of US

192 So. 774

EGGLESTON v. LOUISIANA & A. RY. CO. ET AL., AND FIVE OTHER CASES.

No. 5997.

Court of Appeal of Louisiana, Second Circuit.

November 3, 1939

Rehearing Denied Dec. 1, 1939.

Appeal from Twenty-Sixth Judicial District Court, Parish of Bossier J. F. McInnis, Judge.

Consolidated actions by R. W. Eggleston, Louie J. Clancy, Arthur Lapo Mrs. R. W. Eggleston, Lewis H. Johnson, and Donald F. Jones against the Louisiana & Arkansas Railway Company and another for death of four occupants of an automobile in crossing collision. From judgments for the defendants, the plaintiffs appeal.

Affirmed.

Jack & Jack, of Shreveport, and Wallace & Stinson, of Benton, for appellants.

A. L. Burford, of Texarkana, Tex., and White, Holloman & White, of Alexandria, for appellees.

HAMITER, Judge.

All occupants of a 1937 Pontiac sedan, being four in number, were killed in a collision involving that automobile and a mixed freight train at a railroad crossing on U.S. Highway 71, during the early morning of November 22, 1937.

The above styled six tort actions grew out of the unfortunate and sad occurrence. They were instituted by heirs and legal representatives of the decedents. The defendants impleaded in each are the train's owner, the Louisiana & Arkansas Railway Company, and the locomotive engineer, G. W. Smith.

The petitions of plaintiffs, the allegations of which are substantially identical, attribute the accident to various alleged acts of negligence on the part of defendants, including the engineer's failure to avoid it when he had the last clear chance to do so.

Defendants deny that either was negligent. In the alternative, they aver contributory negligence on the part of the occupants of the automobile.

The cases were consolidated in the district court and tried together.

The trial judge found and held, as his written reasons for judgment disclose, that neither of defendants was negligent; and he rejected the demands of all plaintiffs. Appeals by the last named litigants followed.

The causes were docketed in this court under one number and argued and submitted in consolidated form.

U. S. Highway 71 at and near the scene of the accident is an 18-foot concrete slab, pursues a straight course and runs in a northwesterly and southeasterly direction. It is an important part of the Louisiana and federal highway systems, serving vehicular traffic from Shreveport to Alexandria, Baton Rouge, New Orleans, and other points south and southeast. In this discussion we shall consider its direction of travel as being north and south.

Converging at a point approximately 725 feet north of the crossing in question are the mentioned thoroughfare and U.S. Highway 80. The latter accommodates east and west traffic. This intersection is situated within the corporate limits of Bossier City, Louisiana, and those fused highway arteries proceed westerly through that municipality to and into the city of Shreveport. The southern boundary line of Bossier City is approximately 405 feet south of such intersection and 320 feet north of the place of accident.

U. S. Highway 71 is level from said intersection south to a point 400 feet north of the crossing. During the next 300 feet it experiences an incline of 14 inches. From a point 100 feet north of the center of the crossing to a point 50 feet south thereof a level surface prevails. Thereafter, continuing south, a decline is noted.

For a number of miles south of the crossing the main line track of defendant, Louisiana & Arkansas Railway Company, lies east of, parallel with, and approximately 80 feet from U.S. Highway 71. Looking from the south toward the north, the main track, after following the mentioned parallel course, curves northwesterly, passes over the highway at an angle of approximately 30 degrees, and forms the crossing at which the collision occurred. From the beginning of that curve, which point we shall hereinafter refer to as " the turn", to the eastern edge of the concrete, measured along the track, is a distance of 495 feet. Continuing, it is approximately 56 feet farther to the western edge of the pavement. The main track is almost level from a point 100 feet east of the highway to a point 100 feet west thereof.

A track extends from the turn north and in a parallel position to the highway, but this is used by several railroad companies only for switching purposes. South of the turn, between the pavement and main line track, are other tracks that are also used for the switching of freight cars.

The mixed train in question departed from Filston, Louisiana, about twelve hours before the collision, on its 178 mile northerly journey to Shreveport. The locomotive thereof was operated by defendant Smith, whose career as an engineer dates back to the year 1905, and had not been previously marred by a crossing accident. Numerous stops were made during the trip and the average running speed was 25 miles per hour. On nearing its destination, the train consisted of the locomotive, a water car, 28 average freight cars, and a caboose. Of the freight cars, 7 were loaded, while the remaining 21 were empty. It possessed air brakes known as Standard E. T. equipment. The headlight of the locomotive stood 12 feet, 5 1/2 inches from the ground and, according to a test made shortly after the collision, was in perfect condition and met all requirements of the Interstate Commerce Commission.

While traveling north, and when about 900 or 1200 feet from the aforementioned crossing and south of the turn, the engineer slowed the train from 12 to 10 miles an hour. At this speed it proceeded past the turn, into and along the curve, and across the highway. The Pontiac sedan was struck while traveling south with its right wheels about one foot east of the pavement's western edge. The course of this automobile had been easterly through Bossier City to the above referred to intersection, located approximately 725 feet north of the crossing, and then in a southerly direction on highway 71 to the point of collision. It traveled at a speed of approximately 60 miles an hour. No tire marks were found on the pavement tending to disclose an application of its brakes and a voluntary reduction of that speed. The left front portion of the automobile came in contact with the locomotive's front end at some point between the right extremity of the pilot beam and the draw-head or coupler. The train proceeded 100 to 110 feet farther before stopping, while the motor vehicle was knocked around and came to rest just off the western edge of the pavement, near the track, with its front pointing northwesterly.

The time of the occurrence was 12:45 A. M. o'clock. No rain or fog then endured, and consequently good visibility existed. Cold weather prevailed, and all windows of the automobile were closed. The pavement was dry.

It is contended by plaintiffs that the train possessed defective braking facilities and the operation of it in that condition was negligence. This contention is predicated on the testimony of two witnesses offered by them to the effect that an emergency stop of a train traveling ten miles per hour can be made in 60 or 70 feet if the brakes are working properly. Defendant's train required a distance of from 100 to 110 feet. According to other proof in the record, however, the entire braking equipment was checked within four hours after the accident and it was then found to be functioning satisfactorily. Furthermore, an air brake instructor, employed for 33 years by the manufacturer of the brakes used, testifies that the stop made in 110 feet was a good one, considering the train's weight, size and composition. The evidence, viewed as a whole, does not disclose the existence of defective braking facilities.

A further charge of negligence is that the crossing involved was of an extraordinarily dangerous nature due to its location and the surrounding physical features; that the engineer and railway company knew of this condition and that persons unfamiliar with the crossing would traverse it; and that said defendants owed an affirmative duty to take and provide proper safety precautions in proportion to the degree of danger. In connection with this charge, plaintiffs' counsel emphasize the fact that " at the crossing there were no gates, no electric bells, no flashing lights, no flood light, no flagman or watchman", and then direct particular attention to the attending features detailed hereafter in this paragraph. U.S. Highway 71, being a part of the federal and state systems, accommodates a great volume of vehicular traffic. One and one-half miles south of the crossing is Barksdale Field, having a population of 2,000. A short distance north and west are the municipalities of Bossier City and Shreveport, the population of the latter being 100,000 and that of the former in excess of 3,500. Numerous residences and business establishments are located along the highway between the collision point and Barksdale Field. Systematic checks of traffic made under the direction of plaintiffs' industrious counsel, disclose that approximately 5,500 vehicles traverse the crossing each 24 hours. Near midnight, however, the travel is comparatively light, it consisting of about 50 cars per hour. The main line track curves northwesterly and angles across the pavement after paralleling the highway for a number of miles. A short distance from the crossing, on each side thereof, the highway experiences a decline.

The following factors and circumstances are also pertinent, but they do not lend assistance to plaintiffs' position: Two elevated warning signs stood on the western shoulder of the highway, 8.7 feet from the concrete's edge. One was a large, almost square sign that contained the words, " Louisiana Law Stop",...