Hymel v. Texas & N. O. R. Co.

• Citation: 145 So.2d 138
• Decision Date: 04 September 1962
• Docket Number: No. 735,735
• Court: Court of Appeal of Louisiana (US)
• Parties: Edward J. HYMEL et al. v. TEXAS & NEW ORLEANS RAILROAD COMPANY et al.

Page 138

145 So.2d 138

Edward J. HYMEL et al. v. TEXAS & NEW ORLEANS RAILROAD COMPANY et al.

No. 735.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 4, 1962

Rehearing Denied Oct. 15, 1962.

Certiorari Denied Nov. 27, 1962.

John E. Fleury, Robert I. Broussard, Gretna, Chaffe, McCall, Phillips, Burke & Hopkins, Harry McCall, Jr., New Orleans, for defendants-appellants.

James P. Vial, Leon C. Vial, III, Hahnville, for plaintiffs-appellees.

Before YARRUT, MARTINEZ and RICHARDSON, JJ.

YARRUT, Judge.

Plaintiffs-Appellees are the parents of an 18-year old college boy who was killed in an accident when the automobile he was driving was hit at a railroad crossing on September 16, 1959, about 7:30 o'clock A.M., at the Barton Avenue crossing, near Boutte, St. Charles Parish, Louisiana.

Defendants-Appellants are the Railroad and its then operating engineer.

From a judgment in favor of Plaintiffs-Appellees, each for $6000.00, plus $2190.31 automobile damage and funeral expenses, for the loss of their son, against Defendants in solido, the latter have taken this appeal.

Plaintiffs charge that the death of their son was due solely and only to the negligence of Defendants in not keeping a proper lookout and in not having the passenger train under proper control; in failing to keep the crossing in a safe and proper condition; to have signal lights or proper signals at the crossing; to have the weeds on both sides of the crossing kept cut; to have proper foundation for the crossing; to keep the crossing in proper repair; and to give proper warning of the oncoming train.

Defendants denied any negligence on their part and, alternatively, pleaded contributory negligence of Plaintiffs' son, in that:

'1. He failed to stop, look and listen before crossing the track;

'2. In failing to heed the signals--the burning headlights on the engine, ringing of the locomotive bell and blowing of the whistle, he failed to use his senses of sight and hearing, he failed to stop, look and listen before crossing the track; and

'3. In carelessly and negligently driving, said automobile in the front of defendants' oncoming passenger train at a time when it was not physically possible to have stopped the train in time to have avoided the accident; all of which failures on the part of the driver were the proximate cause of the accident and death of the decedent.'

Defendants then cite LSA-R.S. 45:563, which places upon the person approaching a railroad track the duty to stop, look and listen before proceeding upon the railroad tracks. It is evident that Plaintiffs' son failed in these duties.

Photographs offered in evidence by Defendants, and the supporting testimony, clearly establish that a 'Railroad Stop' sign was erected about 50 feet from the crossing, in full view of any motorist approaching.

Mr. Allen, fireman, seated on the left of the engine as it headed towards New Orleans from Lafayette, testified that, when he first saw decedent's vehicle approaching, it was proceeding at a slow rate of speed, about 12 to 15 miles and 'coming up slow.' From the slow speed of the vehicle, and the fact that a 'Stop Sign' was at the crossing, the engine crew had the right to assume decedent's vehicle would stop before attempting to cross the tracks.

Regarding Plaintiffs-Appellees' charge that the overgrown weeds near the crossing obscured their son's vision, and thereby shifted the burden of caution on the Railroad, our Supreme Court, in Delta Fire & Casualty Company v. Texas & Pacific Railway Co., 229 La. 710, 86 So.2d 681, found that the driver of the automobile involved was proceeding at about 13 to 14 miles per hour through a sharp turn, which prevented his seeing a train proceeding across or towards the crossing. A 'Stop Sign' was at the intersection. Plaintiff argued that his view of the crossing was obscured by the difficulty he encountered in negotiating the sharp turn. The court stated:

'If the negotiation of the sharp turn obscured his vision, all the more reason to exercise caution and be certain that no train was approaching. * * * even if the record justified a holding that the train crew should have noticed the truck and trailer before it reached the crossing, they would have been entitled to assume that the truck driver would comply with the statutory law and jurisprudence of this State and stop before undertaking to negotiate the crossing, as there was nothing so unusual about the truck's approach as to place ordinarily prudent men on notice that it was in distress.'

The jurisprudence is uniform that those in charge of railroad trains may presume that an individual or vehicle approaching a crossing will stop in time to avoid an accident; and the crew is not required even to attempt to stop unless there is reason to believe the approaching motorist is unaware of the oncoming train or does not intend to stop; and a motorist must exercise every sense to ascertain if it is safe to cross. Calvert Fire Ins. Co. v. Texas & P. Ry. Co., La.App., 55 So.2d 693; Stelly v. Texas & N.O.R. Co., La.App., 49 So.2d 640; Bailes v. Texas & P. Ry. Co., La.App., 59 So.2d 509; Leger v. Texas & P. Ry. Co., La.App., 67 So.2d 775; Matthews v. New Orleans Terminal Co., La.App., 45 So.2d 547; South Texas Lloyds v. City of New Orleans by and through the Public Belt Railway Commission of the City of New Orleans, La.App., 142 So.2d 47.

Assuming arguendo, that decedent could not see the train coming, he should have heard the approach of the train, as four disinterested witnesses heard the bell and whistle when the train was quite a distance from the crossing.

Even if there were obstructions such as to prevent decedent's being able to see down the tracks to his right as he proceeded towards the tracks, the greater duty was placed upon him to ascertain there were no trains in the vicinity. Hutchinson v. Texas & N.O.R. Co., La.App., 33 So.2d 139; Barnhill v. Texas & P. Ry. Co., 109 La. 43, 33 So. 63; Calvert Fire Ins. Co. v. Texas & P. Ry. Co., La.App., 55 So.2d 693; Stelly v. Texas & N.O.R. Co., La.App., 49 So.2d 640.

Plaintiffs also rely on McFarland v. Illinois Central Railroad Company, La.App. ...