Gibson v. Kansas City Southern R. Co.

• Decision Date: 09 March 1970
• Docket Number: No. 3837,3837
• Citation: Gibson v. Kansas City Southern R. Co., 233 So.2d 26 (La. App. 1970)
• Parties: Henry H. GIBSON, Sr. & Henry H. Gibson, Jr. v. The KANSAS CITY SOUTHERN RAILROAD COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 26

233 So.2d 26

Henry H. GIBSON, Sr. & Henry H. Gibson, Jr. v.The KANSAS CITY SOUTHERN RAILROAD COMPANY.

No. 3837.

Court of Appeal of Louisiana, Fourth Circuit.

March 9, 1970.

Rehearing Denied April 6, 1970.

Writ Refused June 8, 1970.

Le Brun, Karno & Lockhart, Leon I. Brainis, Metairie, for Henry H. Gibson, Sr. and Henry H. Gibson, Jr., plaintiffs-appellees.

Milling, Saal, Saunders, Benson & Woodward, Guy C. Lyman, Jr., New Orleans, for Louisiana & Arkansas Railway Company, defendant-appellant.

Before CHASEZ, REDMANN and LeSUEUR, JJ.

CHASEZ, Judge.

This litigation arises out of an accident at a railroad crossing in Metairie, Louisiana on April 27, 1967.The plaintiff, Henry H. Gibson, Jr., was driving the car which was owned by his father, Henry H. Gibson, Sr., also plaintiff herein.Gibson, Sr. is suing for property damages to his car.Gibson, Jr. is a minor, but is emancipated and is suing for his personal injuries sustained as a result of the accident.

In a supplemental and amending petition, plaintiffs corrected the name of defendant to read Louisiana & Arkansas Railway Company.From a judgment in favor of both plaintiffs, the Louisiana & Arkansas Railway Company perfected this suspensive appeal.

The accident occurred at about 10:00 A.M. on a clear day at the intersection of Highland Avenue (Drive) which runs generally north and south and the Louisiana & Arkansas Railway Company's (Railroad) main line tracks, which run generally east and west and at this point are located approximately 75 feet south of and parallel to the Airline Highway.The intersection of Airline Highway and Highland Avenue is controlled by a traffic signal.

As Henry H. Gibson, Jr. approached the intersection from the south the traffic light at Airline Highway and Highland Drive (Avenue) was red.Two cars ahead of Gibson had stopped for the light and when he pulled up behind the second car and stopped, the rear end of his car extended over the railroad track.As he was stopped in this position, his car was struck in the right rear by the defendant railroad's train which was traveling west or out-bound from New Orleans.

The intersection is in a residential area and the track is straight and unobstructed in both directions from the intersection.

The plaintiffs allege that the defendant was negligent in traveling at an excessive rate of speed and, alternatively, if the court found plaintiffs to be negligent, then they specially pleaded that the railroad had the last clear chance to avoid the accident.The trial court found the cause of the accident to be 'a combination of the train's excessive speed, under the circumstances, and the engineer's failure to utilize a last clear chance.'Young Gibson's negligence cannot seriously be denied.He testified that as he approached the track at a very low rate of speed he glanced in both directions and neither saw nor heard the train; that he sat on the track for about 30 to 60 seconds without ever seeing or hearing the train until he was hit.However, one witness, Ernest Mc Spadden, who was the driver of the car which immediately preceded Gibson's car over the track, testified that he heard the train's whistle and, looking towards New Orleans to his right, he saw the train.Mr. Cartwright, a witness in a car immediately behind Gibson testified that he heard the train whistle and when his car came within about 50 feet of the crossing he saw the train.He testified that he could see cars beyond or in front of Gibson's also stopped for the red light and, thinking that Gibson would not have room to clear the track on the far side and might wish to back off the track, he backed his own car further away from the track in order to give Gibson room to back off the track if he so elected.The gist of the testimony is that two witnesses, one in front of and one behind Gibson, both heard and saw the train while Gibson, located between them, neither saw nor heard the train.There was no evidence that Gibson has impaired hearing or vision.He either saw and heard the train and still placed himself on the track, or he did not see and hear what he obviously should have seen and heard; this of course constituted gross negligence on his part.SeeSule v. Missouri Pacific Railroad Company, La.App., 181 So.2d 280(4th Cir.1966) where the court said at page 283:

'Our settled jurisprudence is that, in negotiating a railroad crossing, the driver of a motor vehicle must use his senses of sight and hearing for possible oncoming trains; he is burdened with the responsibility of seeing and hearing that which he might and could have seen and heard; he is required to use such care as is commensurate with the existing danger; and, if his view of the right-of-way is obstructed, he must use a higher degree of caution.Jackson v. Cook, 189 La. 860, 181 So. 195;Tucker v. Illinois Cent. R. Co., 141 La. 1096, 76 So. 212;Bertrand v. Missouri Pacific Railroad Company, La.App., 160 So.2d 19;Glisson v. Missouri Pacific Railroad Company, La.App., 158 So.2d 875;Hanks v. Arkansas & Louisiana, Missouri Ry. Co., La.App., 62 So.2d 139;Rachal v. Texas & P. Ry. Co., La.App., 61 So.2d 525.'

This being the case his only possible chance of recovery is if the train had the last clear chance to avoid the accident and failed to take advantage of it.

In order to recover under the last clear chance doctrine the plaintiff bears the burden of proving: (1) that plaintiff was in a position of peril of which he was unaware, or from which he was unable to extricate himself; (2) that the defendant actually discovered, or was in a position where he should have discovered plaintiff's peril; and (3) that at the time defendant could have, through the exercise of reasonable care; avoided the accident.Faulkner v. Malloy, La.App., 203 So.2d 100(2nd Cir.1967);Ballard v. Piehler, La.App., 98 So.2d 273(1st Cir.1957).

The plaintiff by his own testimony may have been unaware of his perilous position; if so could the defendant have avoided the accident?At the instant the emergency brakes were applied the train was traveling at a speed of 52 miles per hour.This fact was established by a speed tape mechanism of the train which graphically records speed and points at which the brakes of the train are applied.Mr. Thomas Martin testified as an expert for the Railroad and interpreted the speed tape.He related that the train involved herein, traveling at a rate of 52 m.p.h., required at the most 1389.6 feet in which to stop.This distance includes 151.84 feet covered during the maximum reaction time of the engineer; 227.76 feet which represents the distance the train would travel after the brakes were applied and before they became effective, a time limit of about 3 seconds; and 1010 feet which represents the actual distance covered during effective braking.These figures are not refuted or denied by plaintiff.

The record is also clear that the engine of the train stopped at a point 850 feet west of the intersection after striking Gibson's car.This fact also stands unrefuted in the record.

By simply subtracting 850 feet from the total stopping distance of 1390 feet, we reach the conclusion that the trainman began to react to his being stopped on the track about 540 feet before the intersection and the brakes were applied at about 388 feet before reaching the intersection.This is not denied .What is denied and is the basic dispute in this case is why the brakes were applied at this particular point.

Plaintiff contends he was at rest on the tracks for between 30 and 60 seconds.Assuming he was on the track for 30 seconds, the trainmen should have seen him at a distance of nearly 2277.60 feet because, at 52 m.p.h., the train would travel at the rate of 75.9 feet in one second and this figure is multiplied by 30 seconds to reach the figure of 2277.6 feet.We say nearly that distance because the speed decreased slightly as soon as the brakes became effective.If Gibson was stopped for longer than 30 seconds the train would naturally have been even further away.Gibson argues that the trainmen should have seen him on the tracks at 2277.6 feet and since the train required 1390 feet in which to stop, this left about 887 feet or between 10 and 15 seconds for the trainmen to react and still avoid the accident.Instead he argues, they waited until they were only 540 feet from his car before deciding that Gibson was not moving and at that point it was too late to stop.

The railroad denies this of course, and argues that Gibson was on the track for a period of only 5 to 10 seconds and that the trainmen applied the brakes as soon as they saw Gibson on the track and had no chance to avoid the accident and thus the last clear chance doctrine is inapplicable and recovery by plaintiff herein should be barred because of his own negligence.

In the final analysis the issue becomes one of fact--whether Gibson was stationary on the tracks for 30 to 60 seconds as he contends, or 5 to 10 seconds as the railroad contends.

Mr. Mc Spadden, the witness who preceded Gibson over the tracks testified that Gibson's car was a couple of car lengths behind his.He related too that it seemed to him that he was stopped for quite a while prior to the collision but could not indicate how many seconds elapsed from the time he stopped until the impact occurred.

It must be remembered, however, that even if Mr. Mc Spadden was stopped for quite a while it does not necessarily follow that Gibson was stopped for quite a while.Mc Spadden testified that Gibson's vehicle was a couple of car lengths behind him which would be a distance of approximately 40--45 feet.Gibson testified that he...