Graham v. Southern Pacific Transp. Co.
| Decision Date | 02 June 1993 |
| Docket Number | No. 92-710,92-710 |
| Citation | 619 So.2d 894 |
| Parties | Erna Mae GRAHAM, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Sue Fontenot, Abbeville, Gregory Karl Klein, Lafayette, for plaintiff-appellant Erna Mae Graham.
James J. Davidson, III, John Edmund McElligott, Jr., Kyle Liney Mark Gideon, Lafayette, for defendants-appellees So. Pacific Transp. Co., et al.
James T. Guglielmo, Opelousas, for defendant-appellee Town of Scott and Global Ins.
Harvey Lee Hall, Baton Rouge, for defendant-appellee State of La.
Sidney Hayward Cates, IV, Marsha M. McKendall, New Orleans, for defendant-appellee DOTD.
Before STOKER and DECUIR, JJ., and CULPEPPER, J. Pro Tem. *
This is an appeal by plaintiff, Erna Mae Graham, from a judgment sustaining an exception of prescription in favor of the Town of Scott, its liability insurer, Great Global Assurance Co., and the State, DOTD. We affirm.
Fault on the part of Southern Pacific Transportation Company and its engineer, Tommy Lee Williams, is a major issue in this case because it bears on the question of interruption of prescription against the appellees, the town of Scott (Scott), Great Global Assurance Co. (Great Global) and State, DOTD. However, liability on the part of Southern Pacific and Williams is not at issue because their liability went out of the case by settlement and dismissal as we shall explain more fully.
This case involves a wrongful death action filed by plaintiff for damages for the death of her husband, George Weldon Graham. Graham was killed when the automobile he was driving across railroad tracks at the Alfred Street crossing in Scott, Louisiana was struck by a train owned by Southern Pacific Transportation Company. The accident occurred on September 23, 1985 at about 7:10 p.m., just before dark. The weather was clear.
The train was being operated by engineer Tommy Lee Williams, who was in the short nose, or the "front", of the engine. At the time, the train was being operated with the engine's long nose forward, or "backwards". In other words, the train engine was in a reversed position, but it was still pulling (rather than pushing) the box cars behind it. James L. Boudreaux, the brakeman, was seated in the long nose of the engine, facing the crossing. The train's bells and whistles were blowing, and the lights at both the short nose and long nose ends of the train engine were on prior to and at the time of the accident. The train was travelling eastward at about forty m.p.h.
Graham, who was driving about ten m.p.h., failed to yield to the train at the crossing, despite the crossbuck sign. The sole neutral eyewitness to the accident, Brenda Schexnayder, testified that Graham just slowly drove onto the railroad tracks, neither speeding up nor slowing down to avoid the train. Graham had an unlimited view down the tracks to the west once he was within about fifty feet of the crossing. However, his car windows were rolled up and his air conditioner was on. Just prior to the accident, Graham had had four or five drinks with friends at a local bar.
The accident occurred on September 23, 1985. Plaintiff filed this wrongful death suit against Southern Pacific and Tommy Lee Williams on April 10, 1986. Southern Pacific and Williams answered with a general denial and alleged the defense of negligence on the part of Graham.
On October 5, 1987, Southern Pacific filed third party demands against the Town of Scott, its liability insurer, and the State, DOTD, alleging fault through improper signing of the crossing and failure to upgrade the crossing. The Town of Scott and the State, DOTD answered with general denials.
On April 10, 1989, Scott filed a motion for summary judgment as to Southern Pacific's third party demand, arguing that it had no duty to upgrade the railroad crossing. On April 26, 1989, the State, DOTD also filed a motion for summary judgment to dismiss Southern Pacific's third party demand.
On May 23, 1989, plaintiff filed a supplemental and amending petition to add the Town of Scott and the State, DOTD as party defendants, alleging negligent signing of the crossing and failure to upgrade the crossing. She subsequently added Great Global as a defendant, also. The Town of Scott and the State, DOTD answered with general denials and asserted the defenses of contributory negligence and immunity. Scott, Great Global and the State, DOTD filed motions for summary judgments seeking dismissal of plaintiff's claims.
The trial judge denied the motions for summary judgment filed by Scott, Great Global and the State, DOTD, both on the main demand and the third party demand. This court then denied the applications for writs filed by the defendants.
On December 18, 1990, the trial judge granted Southern Pacific's motion for a partial summary judgment holding that Southern Pacific was not liable for any failure to have additional crossing warning devices installed at the Alfred Street crossing. Plaintiff filed a motion for new trial which was denied on January 24, 1991. Plaintiff did not appeal that judgment.
On February 1, 1991, the Town of Scott, its insurer, and the State, DOTD filed exceptions of prescription, which were referred to the merits.
On February 4, 1991, the trial judge signed a judgment dismissing plaintiff's claims against Southern Pacific and Williams, pursuant to a settlement agreement. At the same time, the trial judge dismissed Southern Pacific's third party demands against the Town of Scott, its insurer and the State, DOTD. Thus, Southern Pacific went out of the case as a party.
Prior to trial, plaintiff and Southern Pacific attempted to enter a stipulation that Southern Pacific was 1% at fault for the accident. The trial judge sustained the remaining defendants' objections to the stipulation.
The case against Scott, Great Global and State, DOTD proceeded to trial on the merits before a jury. However, the jury was never called upon to consider the negligence of Scott and DOTD. At the close of the defendants' case, defendants moved for a directed verdict based on the failure of plaintiff to establish negligence on the part of Southern Pacific and its engineer; and this being so, defendants urged Southern Pacific and its engineer were not solidary obligors and suit against them did not interrupt prescription against Scott, Great Global and DOTD. The trial judge granted the motion for a directed verdict and sustained the exceptions of prescription which these defendants had filed and which had been referred to the merits.
Plaintiff appeals the directed verdict and the judgment sustaining the exceptions of prescription. We affirm.
OPINIONThe central issue in this appeal is whether the trial judge erred in holding that Southern Pacific was not at fault for causing the accident and that plaintiff's claims against the Town of Scott, Great Global and the State, DOTD had prescribed.
The pertinent procedural history of this case can be summarized as follows:
9/23/1985 Accident occurred
4/10/1986 Plaintiff filed suit against Southern Pacific and Williams
10/5/1987 Southern Pacific and Williams filed a third party demand for contribution or indemnity against the Town of Scott, Great Global, and the State, DOTD
5/23/1989 Plaintiff filed supplemental and amending petition to add Town of Scott, Great Global, and State, DOTD as party defendants.
Plaintiff's supplemental and amending petition adding Scott, Great Global and State, DOTD as defendants could not relate back to her original petition since Scott, Great Global and the State, DOTD were brought in as third party defendants and as party defendants after the one year prescriptive period on the main demand had tolled. LSA-C.C. art. 1153, art. 3492; Randall v. Feducia, 507 So.2d 1237 (La.1987). See also, Spott v. Otis Elevator Co., 601 So.2d 1355 at 1359, n. 10 (La.1992).
However, under LSA-C.C. art. 3503, interruption of prescription as to one solidary obligor interrupts prescription as to all other solidary obligors. Therefore, plaintiff's claims against Scott, Great Global and State, DOTD did not prescribe if Southern Pacific was at fault for the accident, and, thus, a solidary obligor. The trial judge's directed verdict in favor of Southern Pacific, holding it not at fault and thus not solidarily liable for the accident, implicitly tolled prescription on plaintiff's claims against the other defendants. Therefore, plaintiff appeals the trial judge's directed verdict in favor of Southern Pacific.
A motion for a directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant's opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. Barnes v. Thames, 578 So.2d 1155 (La.App. 1st Cir.), writ denied, 577 So.2d 1009 (La.1991).
The standard of review for directed verdicts is whether, after viewing the evidence submitted, the appellate court can conclude that reasonable persons could not reach a contrary verdict. Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1st Cir.), writ denied, 605 So.2d 1117, 1119 (La.1992). Also, Tilley v. Mount Vernon Ins. Co., 411 So.2d 72 (La.App. 3d Cir.1982).
In the case before us, plaintiff alleges Southern Pacific was negligent in the following respects:
1) failing to install active signalization at the crossing;
2) conducting the train with the engine facing long nose first;
3) traveling at an excessive speed 4) failing to throw the train into emergency; and
5) failing to sound an emergency blast on the whistles.
Plaintiff first argues that the trial judge erred in failing to find that the Albert Street railroad crossing was...
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