Homeland Ins. Co. v. Thompson

• Decision Date: 17 February 1943
• Docket Number: 2495.
• Citation: 12 So.2d 62
• Court: Court of Appeal of Louisiana — District of US
• Parties: HOMELAND INS. CO. v. THOMPSON.

12 So.2d 62

HOMELAND INS. CO. v. THOMPSON.

No. 2495.

Court of Appeals of Louisiana, First Circuit

February 17, 1943

Plauche & Plauche, of Lake Charles, for appellant.

Hudson Potts, Bernstein & Sholars, of Monroe, and Kaufman &amp Anderson, of Lake Charles, for appellee.

DORE, Judge.

In the early morning of October 28, 1940, Oakley Daugherty, truck driver and Mitchell Ashy, bookkeeper and field man of Bradford Lewis, were conveying a heavy dragline unit loaded on what was called a lowboy trailer, attached to a new International truck, all the property of the said Bradford Lewis. The outfit was being conveyed to a WPA project on the Duplechain Road, which road extends east and west across the tracks of the defendant company at a point near the northern corporate limits of the town of Oberlin. Ashy was driving in his own automobile ahead of the truck, and Daugherty was following him with the truck and the dragline outfit. They were travelling east on the said Duplechain Road and when they arrived at the crossing where the Duplechain Road intersects the railroad tracks which run north and south, they first parked the truck and automobile and for some minutes investigated the crossing to determine whether or not it was safe to negotiate it with this heavy unit, it being shown that the truck weighed approximately 7,000 pounds and the trailer and dragline some 26,000 pounds, and that the overall length of the unit was about 45 feet.

After their investigation Ashy and Daugherty decided it would be safe to cross the railroad crossing at an angle, and accordingly Daugherty, directed by Ashy, who carried a lighted lantern attempted to negotiate the crossing at an angle, and after the rear wheels of the truck had passed the tracks, the unit became stalled or stuck, and at just about this time Ashy noticed a train coming towards the crossing and thereupon ran up the track, some 50 feet, waiving his lantern, but apparently his signal was too late and the train, a freight train composed of 62 cars, travelling at a speed estimated from 40 to 50 miles per hour (less than 45, according to the testimony of those best qualified to pass upon it), crashed into the outfit, turning the truck completely around on the east side of the tracks, and dragging the trailer and dragline for a distance of about 85 feet.

It is shown that the accident happened some time between 5:30 and 6:30, and that there was a very heavy fog which hugged the ground and which prevented visibility for a distance of more than a few feet, estimates ranging from 40 to 160 feet.

The plaintiff is the insurer of Bradford Lewis, said insurer having paid the sum of $780.21 to Bradford Lewis under collision coverage and having obtained a subrogation from him. There is no dispute as to the correctness of the amount sued for and the question at issue is merely the question of liability.

Plaintiff in the lower court claimed that the accident was caused by the gross negligence of defendant railroad company in not providing a safe grade crossing, in driving its freight train at an excessive rate of speed through the town of Oberlin, and in a heavy fog and in failing to keep a proper lookout. It alleges further that plaintiff's train was travelling in violation of a town ordinance. In the alternative plaintiff alleges that the defendant railroad company had the last clear chance to avoid the collision, since the unit had become stuck at the crossing and could not move.

The defendant denies being guilty of any negligence whatsoever, and in the alternative, in the event that any negligence on its part is shown, pleads that plaintiff's subrogor was guilty of contributory negligence barring recovery.

The lower court absolved both the plaintiff and the defendant of negligence, and dismissed plaintiff's suit. Plaintiff has appealed.

Before this court plaintiff has in effect abandoned its contention with reference to the town ordinance, and in any event the existence of a town ordinance regulating the speed of trains is not proved. Plaintiff also appears to have abandoned its contention that the defendant's trainmen were guilty of not keeping a proper lookout, and in any event it is definitely proved that defendant's employees gave all the required signals and were at their proper places and performing their proper duties at the time of the accident. Before us plaintiff seems to rely on two points to establish defendant's negligence: first, that defendant was grossly negligent in driving its train at a rapid rate of speed, in a dense fog; and, second, in failing to maintain a proper grade crossing.

As far as the speed of the train is concerned, it is shown by the testimony of the trainmen that it was travelling at its usual rate of speed, and it is shown and found by the trial judge that the accident occurred either right outside, or right inside the northern limits of the town of Oberlin, where the surrounding section was rather sparsely settled and at a time when traffic at that point is not usually present. As previously stated, there was a very heavy fog which hugged the ground and visibility was bad, estimates ranging from 40 to 160 feet. It is further shown that the operators of the train had given signals by whistle and by ringing of the bell of the train's approach for this crossing. In fact, it is not seriously contended in this court that the train operators were not keeping a proper lookout, except the bare fact that the engineer did not see the stalled trailer on the track until he was up on it, which is explained by the presence of a dense fog.

In the case of Foster v. Texas & P. Ry. Co., 5 La.App. 601, this court has had occasion to express itself relative to the duties of railroad operators during heavy fogs, in these words: "It seems to us that it would be unreasonable to require a railroad company to slow down during heavy fogs and delay its trains at every point along its line, where cattle or live stock might at some time in the past have been killed." It is to be noted that the point was not raised that a train should only be operated at such a speed as would enable the engineer, on seeing obstructions on the track, to avoid running...