Guidry v. Texas & N.O.R. Co.
| Decision Date | 23 January 1952 |
| Docket Number | No. 3494,3494 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | GUIDRY et al. v. TEXAS & N. O. R. CO. |
Chas. C. Jaubert, A. J. Resweber, Lake Charles, for appellants.
Thos. F. Porter, J. Douglas Nesom, Lake Charles, for appellee.
An action for damages was instituted January 11, 1943 upon behalf of the widow and five minor children of Wesley John Guidry, who was killed when a truck he was driving was struck by a passenger train of the Texas & New Orleans Railroad Co. An emancipated minor son of the deceased joined in the suit.
An exception of no right or cause of action was sustained by the District Court on October 9, 1943. This Court of Appeal remanded the case to allow an amendment of plaintiffs' petition, which amendment was made and the case was tried upon its merits October 1, 1945, taken under advisement, with leave given to counsel to submit the case on written briefs. Plaintiffs' original brief was not filed until September 21, 1950, and thereafter opposing briefs were filed and the District Court on May 15, 1951 rendered judgment, pursuant to written reasons therefor, rejecting plaintiffs' demands at their cost. From this decision plaintiffs have appealed.
The collision which resulted in the death of Guidry occurred at approximately 6:15 a. m. on October 21, 1942, about one mile east of the Town of Vinton, where a private road leads from U. S. Highway No. 90 to the decedent's home, crossing the main line of the defendant's railroad. Guidry lived approximately 300 feet north of the railroad track, which runs east and west at this point, and is straight and level for several miles in either direction. The decedent was driving his farm truck in a southerly direction along the above described private road, endeavoring to cross the track, when his truck was struck by one of the defendant's passenger trains, and he was killed instantly.
Plaintiffs maintain that the sole and only cause of the accident was negligent acts of the defendant, detailed as follows:
(1) That the speed of the train, approximately 60 miles an hour, was excessive.
(2) That the operators of the train gave no warning signals of its approach, although traveling in darkness and a heavy fog.
(3) That the defendant permitted its right of way to grow up in weeds, grass and trees, so that the deceased was unable to see the approach of the train.
(4) That the train was running about one and one-half hours behind schedule at the time the accident occurred.
(5) That the operators of the train were cognizant of all of the facts above set out and also knew the train was traveling through a farming section of the country and that farmers were liable to be using the private crossings during early hours of the morning.
The defendant concedes the train was traveling at about 60 miles per hour; that the accident occurred in darkness, when the weather was foggy; that the train was about 30 minutes late. It denies there was any failure of the operators of the train to give warning signals of its approach to the crossing, contending that the bell on the locomotive was ringing, and its whistle was being blown to warn of the train's approach. It is also denied that the decedent's view was obstructed. It is further denied that any of the facts or circumstances set out by plaintiffs constitute negligence on the part of the defendant or that they impose any duty on the operators of the train to give a signal before reaching a private crossing. Defendant then alleges the accident happened solely because of the negligence of the deceased in going upon the railroad track without stopping, looking and listening for a train; that if he had taken the proper caution he would have both heard and seen the train, pleading in the alternative the deceased was guilty of contributory negligence in driving upon the track without proper caution.
Perhaps the latest expression concerning the speed of trains in vicinities similar to the situs of this accident is found in Moody v. Texas & P. Ry. Co., La.App., 37 So.2d 346, 348, wherein it is stated:
There is no question but that the accident happened in open country and that the track here was straight and level. The speed of the train is fixed by the firemen and engineer at approximately 60 to 65 miles per hour. There is no evidence whatsoever in the record that this speed was unsafe for either equipment or passengers.
However, plaintiffs contend the presence of the fog removes this case from the general rule and consequently this speed constituted an act of negligence under the circumstances. We cannot agree with this contention since this argument was forwarded before this Court in Homeland Insurance Co. v. Thompson, La.App., 12 So.2d 62, 64, and we there decided there was no rule of law requiring trains to be driven at a rate of speed so they could be stopped within the range of the operator's vision. Further, that a railroad company was not required to slow its trains during rainy or cloudy weather when traveling through a sparsely settled community. There we said: 'To require a train to be so operated in a sparsely settled community and at a time when traffic is not usually present at such a speed as to permit its being stopped within the distance an object may be seen on the track during a heavy fog would seriously interfere with train schedules in which the public is as much interested as the railroad company.'
Our conclusions in the quoted case were based upon the authorities cited therein.
This doctrine was recognized by the Second Circuit Court of Appeal...
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