Hebert v. Missouri Pac. R. Co.

• Decision Date: 20 December 1978
• Docket Number: No. 6720,6720
• Citation: 366 So.2d 608
• Parties: Mrs. Wanda Kidder HEBERT, Individually, et al. v. MISSOURI PACIFIC RAILROAD COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 608

366 So.2d 608

Mrs. Wanda Kidder HEBERT, Individually, et al. v. MISSOURI PACIFIC RAILROAD COMPANY et al.

No. 6720.

Court of Appeal of Louisiana, Third Circuit.

Dec. 20, 1978.

Rehearings Denied Jan. 31, 1979.

Writs Refused March 23, 1979.

Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Opelousas, for defendant-appellant, Missouri Pac.

William J. Doran, Jr., Baton Rouge, for defendant-appellant, Highways.

Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiffs-appellees, Mrs. Hebert.

Dean Lomenick, & Seemann, G. Frederick Seemann, Opelousas, for plaintiff-appellee.

John A. Jeansonne, Jr., Lafayette, for defendant-appellees.

Boagni & Genovese, James T. Genovese, Opelousas, for plaintiff-appellant-appellee.

Domengeaux & Wright, William P. Rutledge, Lafayette, for plaintiff-appellee.

Before CULPEPPER, FORET and CUTRER, JJ.

CUTRER, Judge.

This is a companion case to the cases of Guidry, Sr., et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 617; Stelly, Ind., et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 617; Guidry v. Missouri Pacific Railroad Company et al., 366 So.2d 618; and Lalonde et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 619. We render separate decisions in each case this date.

These five suits arise out of an accident occurring when a pickup truck and a freight train collided at a railroad crossing on the edge of the Town of Arnaudville, Louisiana.

On December 6, 1974 at approximately 3:00 P.M., Phillip Guidry was operating a pickup truck, owned by his father, Charles A. Guidry, Sr., along Louisiana Highway 686. As the pickup crossed an intersection of the highway and the Missouri Pacific Railroad, it was struck by Missouri Pacific's freight train. The defendant's railroad runs in a north-south direction along the east edge of the Town of Arnaudville. Louisiana Highway 686 runs east-west. The train was traveling north and the pickup was traveling west. The train hit the truck on the driver's side. The pickup was occupied by three passengers, Wilfred Charles Hebert, Voorhies Lee Stelly, Jr., and Keith Guidry. Voorhies Stelly, Jr., was killed and the remainder of the occupants of the pickup received injuries of varying degrees. At the time of the accident it was raining.

The crossing is approximately level with only a slight rise as the highway goes over the railway. There were no automatic signal devices to warn the public of an approaching train. The crossing had standard "cross-buck" signs in the right of way and Highway Department warning signs some distance from the crossing. There was no "Louisiana Law Stop" sign at the crossing.

Mrs. Wanda Kidder Hebert, a widow, brought suit individually and on behalf of her minor son, Wilfred Hebert, for damages against Missouri Pacific Railroad Company, Department of Highways of the State of Louisiana, and Charles A. Guidry, Sr., and his liability insurer Hartford Accident & Indemnity Company. Wilfred Hebert became a major during the proceedings and he was made a party plaintiff along with Wanda Hebert. Keith Guidry brought suit for damages against Missouri Pacific Railroad Company, Department of Highways of the State of Louisiana, and Charles A. Guidry, Sr., and his insurer Hartford. Voorhies Lee Stelly and Mrs. Clara Mae Lalonde, divorced parents of Voorhies Lee Stelly, Jr., brought suit for the death of their son against Missouri Pacific Railroad Company, Department of Highways of the State of Louisiana, and Charles A. Guidry, Sr., and his insurer Hartford. Charles A. Guidry, Sr., brought suit individually and on behalf of his minor son, Phillip, against Missouri Pacific Railroad Company and Department of Highways, State of Louisiana.

The trial court rendered judgment in favor of all plaintiffs against all defendants except in the case of Guidry, Sr., et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 617; this suit was dismissed, the court finding that Phillip Guidry, driver of the pickup, was contributorily negligent. Motions for a new trial were filed and denied. Appeals were taken and subsequently the trial court, having lost jurisdiction, improperly rendered an amended judgment dismissing the judgments against Charles A. Guidry, Sr. and his insurer Hartford on the ground that Guidry was the employer of the passengers in the truck; thus no recovery could be had in tort against Guidry but plaintiffs were limited to workmen's compensation claims. This court ordered the suits remanded for the purpose of allowing the trial court an opportunity to correct the error and render new judgments. This was done and appeals were again duly taken by the Department of Highways of the State of Louisiana (hereinafter referred to as Highway Department), Missouri Pacific Railroad Company (hereinafter referred to as Missouri Pacific), and Merle Browning in each suit. Charles A. Guidry, Sr., also appeals the dismissal of the suit in which he was plaintiff. Wanda Hebert and Wilfred Hebert answered the appeals in this case seeking an increase in damages.

The issues presented by these appeals are as follows:

(1) Whether Missouri Pacific and its engineer, Merle Browning, were negligent and, if so, whether such negligence was a proximate cause of the accident;

(2) Whether the Highway Department was negligent and, if so, whether such negligence was a proximate cause of the accident;

(3) Whether the driver of the pickup truck was negligent and, if so, whether such negligence was a proximate cause of the accident;

(4) What legal relationship existed between the owner, driver and passengers in the pickup? (Employee-employer; joint venture; or other relationship.)

(5) Whether the trial judge erred in the awards of damages to the various parties.

I.

The first issue is whether Missouri Pacific and its engineer, Merle Browning, were negligent and, if so, whether such negligence was a proximate cause of the accident. The trial court rendered lengthy reasons for judgment and found these defendants negligent in "one or more of the following particulars:

"(1) In knowing of a hazard and doing nothing to ameliorate it in the form of warning to the motorist, or in the form of change of operating procedures to minimize risk.

"(2) Speed, not commensurate with the conditions in existence.

"(3) Warning by bell or whistle."

The record contains voluminous evidence concerning the nature of the crossing, including principally sight distances and view obstruction. The photographs and plats reveal that as the Guidry pickup truck approached the crossing, the driver's view of the track to his left was obstructed by houses, other buildings, trees and other growth. Located immediately adjacent to the railroad right of way, on the driver's left (the direction from which the train approached), are a house and a utility building. The house is situated on a lot that has trees across the rear and along the east side. Until a motorist clears these structures and trees, his visibility down the track is obstructed. The house is located approximately 50 feet from the track. The "sight distance" was discussed by experts from both sides who concluded that due to the obstructions this crossing only had approximately half of the clear "sight distance" required by the Bureau of Public Roads.

As early as 1969, the dangerous nature of this crossing was brought to the attention of the Highway Department and Missouri Pacific. Due to accidents occurring at the crossing, the St. Landry Parish Police Jury passed a resolution asking the parties concerned, the Highway Department and Missouri Pacific, to take steps to protect the public from the hazard.

Lawrence Harry, an engineer for the Highway Department, made a survey of the crossing in 1969 and found that the sight distances were less than minimum requirements. He calculated the hazard rating as 2.32, meaning that he projected that number of accidents to occur over a five-year period. He recommended that the crossing be equipped with flashing lights, warning bell and advance warning signs. Mr. Harry made another survey in 1973 with the same result.

Mr. Harry submitted his findings to Turner Lux, Jr., agreement engineer with the Highway Department. Lux sent the report and recommendations to Missouri Pacific in 1970. Missouri Pacific responded 2 years later, 1972, offering to install the signal equipment if the Highway Department would pay 90% Of the costs. There was an exchange of communications between the Highway Department and Missouri Pacific, and finally in 1974 the Highway Department agreed to the 90%-10% Cost contribution proposed, with the Highway Department paying 90%. The agreement between the Highway Department and Missouri Pacific was consummated in June, 1974. The installation took place in 1975, After the accident in question.

The railroad had knowledge of the need for automatic signals at this crossing for over 5 years before it installed same. This need was shown, not only by the surveys of the engineers but by the fact that William McClendon, claims man of Missouri Pacific, stated that 5 accidents occurred at this crossing between 1959 and 1974.

Automatic signals serve the same purpose as a whistle or bell on an approaching train. These devices all warn the motorist that impending danger exists as a train is approaching the crossing and is in the immediate vicinity of same. Under the unusual circumstances presented herein, the unreasonable delay in the railroad's installation of the safety devices was negligent and such negligence was a proximate cause of the accident. We find no manifest error in the trial court's conclusion in this regard.

The trial court heard several witnesses who testified as to whether the engineer blew the whistle for the required distance of 300 yards before the accident. The train crew and some area witnesses testified that the whistle was blown before the accident as required. The occupants of the truck, witnesses to the accident...