Ketcher v. Illinois Central Gulf R. Co.

• Decision Date: 11 October 1983
• Docket Number: No. 83,83
• Citation: 440 So.2d 805
• Parties: Frances Peco KETCHER, et al. v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, et al. CA 0022.
• Court: Court of Appeal of Louisiana — District of US

Page 805

440 So.2d 805

Frances Peco KETCHER, et al. v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, et al.

No. 83 CA 0022.

Court of Appeal of Louisiana First Circuit.

Oct. 11, 1983.

Rehearing Denied Nov. 22, 1983.

Writs Denied Jan. 27, 1984.

Stephen C. Sledge, Hammond, for plaintiff-appellant Frances Peco ketcher.

Wilfred H. Boudreaux, New Orleans, for plaintiffs-appellants Angelina Michel, Victor Michel, Jr., Bernadette Michel Courcelle and David Michel.

H. Martin Hunley, Jr., David Kelly, New Orleans, for defendants-appellees Illinois Central Gulf R.R., Nat. R.R. Passenger Corp. a/k/a Amtrak, and J.E. Newman.

Charles G. Walker, Hammond, for defendant-appellee Tangipahoa Parish Port Com'n.

Iddo Pittman, Jr., Hammond, for third party defendant-appellee B.F. Diamond Const. Co.

Charles M. Hughes, Bogalusa, for intervenor-appellant Aetna Cas. & Sur. Co.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This is a suit for damages in tort arising from a train-truck collision. The suit was instituted by the surviving wife ¹ of Bobby Junior Ketcher, the driver of the truck, and the surviving wife and three major children ² of Victor J. Michel, Sr., a guest passenger in the truck. Made defendants were the Illinois Central Gulf Railroad Company (ICG), National Railroad Passenger Corporation (Amtrak), J.E. Newman (the engineer on the train) and the South Tangipahoa Parish Port Commission (Port). Aetna Casualty & Surety Company (Aetna) intervened for indemnification as the workmen's compensation insurer of B. & F. Diamond Construction Company, Inc. (B. & F.), the employer of Ketcher and Michel. This matter proceeded as a jury trial for ICG, Amtrak and J.E. Newman, and as a judge trial for the Port. ³ The jury (by a vote of 10-2) found that ICG, Amtrak and Newman were not negligent. The trial judge determined that the Port was not negligent and rendered judgment against the plaintiffs in accordance with his and the jury's findings. These devolutive appeals followed. ⁴

FACTS

The Port operates facilities on the north side of North Pass Manchac in Tangipahoa Parish, Louisiana. Immediately to the west of this port property, ICG maintains a main line and a spur line each running in a north south direction. Immediately to the west of the ICG railroad tracks are the old U.S. Highway 51 roadbed and an I-55 highway service road which also run in a north south direction.

In 1967, to secure access from their North Pass Manchac property to the nearby highways, the Port executed a license agreement with ICG for a private grade crossing over the ICG tracks. Part of this agreement required the Port to indemnify and hold ICG harmless from all liability connected with the crossing. This crossing became known as the North Pass Crossing and the roadway was known as the Port Commission road.

Prior to January 13, 1977, B. & F. leased a portion of the Port property for use in construction projects in which it was involved. This leased site was on the Port Commission road several hundred feet east of the North Pass Crossing.

On January 13, 1977, Bobby Junior Ketcher and Victor J. Michel, Sr. were employees of B. & F. working on or near the property leased by B. & F. from the Port. At approximately 3:00 P.M., Ketcher and Michel stopped their work and left the B. & F. construction site in a 1973 GMC pickup truck owned and operated by Ketcher. Ketcher drove this vehicle in a westerly direction on the Port Commission road. At this same time and place, J.E. Newman was operating Amtrak Train No. 59, Engine 627, in a southerly direction on the ICG main line. William M. Hale was the fireman on the train and Elmer D. Newman was the conductor. There was a collision between the Amtrak train and the Ketcher truck at the North Pass Crossing. Michel was killed almost instantly. Ketcher died eighteen days later.

NEGLIGENCE OF ICG, AMTRAK, J.E. NEWMAN AND THE PORT

The Michel heirs and Aetna contend that the factual findings of no negligence by the jury and the trial judge are in error and should be reversed but do not specify in what manner these findings are factually incorrect. Mrs. Ketcher did not assign as error the jury verdicts or the trial judge's ruling. Since these issues were not raised by Mrs. Ketcher in a specification of error in her brief, this court will consider those issues abandoned by her and will not review them in this appeal. Oh v. Allstate Insurance Company, 428 So.2d 1078 (La.App. 1st Cir.1983); Harrison v. South Central Bell Telephone Company, 390 So.2d 219 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 900 (La.1981); Rule 1-3, Uniform Rules, Courts of Appeal.

J.E. Newman, the engineer on the Amtrak train, testified that he was proceeding in a southerly direction on the ICG main line at a speed of 79 miles per hour in accordance with ICG's operating rules. There was visibility of one and one-half to two miles. When the train was 2000 feet from the North Pass Crossing, Newman commenced ringing the train's bell and giving a crossing signal on its whistle (two long blasts, a short blast and then a long blast). The train also had a fixed headlight which was turned on and an oscillating headlight which was turned on. When the train was approximately 400 feet from the crossing, Newman observed Ketcher's truck about 20 to 25 feet from the crossing approaching from Newman's left at a slow rate of speed. Upon seeing the truck, Newman gave a stock alarm--a series of short blasts of the train's whistle to attract the attention of the truck's driver. Newman testified that as slow as the truck was going it could have stopped at anytime before reaching the track, and he assumed that it would do so. When the train was approximately 100 to 140 feet from the intersection, Newman observed the truck proceed onto the tracks and stall on the main line. He immediately went into emergency status and applied the emergency brakes. The train collided with the truck and came to rest about one-half mile from the point of collision. The testimony of the train's fireman, William M. Hale, corroborated the testimony of Newman.

The plaintiffs called as witnesses Michael Hebert and Raymond Bates who testified that they were working at the B. & F. construction site several hundred feet east of the point of collision and, although they heard the roar of the train, neither could recall hearing a bell, whistle or horn of the train prior to collision. Elmer Newman, the train's conductor, testified that he did not hear the train's horn. His testimony is of little significance since he was in the sixth car at the time of collision and admitted that he could not have heard the horn even if it had been blown. This testimony was offered by the plaintiffs to show that Newman was in violation of La.R.S. 45:561 ⁵ by failing to sound a bell, whistle or horn for a distance of not less than 300 yards before the crossing was reached.

A special interrogatory was not submitted to the jury to resolve the conflict between the Newman-Hale and Hebert-Bates testimonies. Since the jury rendered a general verdict finding no negligence, it is presumed that it resolved this factual dispute in favor of the defendants. Steinbach v. Barfield, 428 So.2d 915 (La.App. 1st Cir.1983), writ denied, 435 So.2d 431 (La.1983); Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982), writ denied, 422 So.2d 423 (La.1982).

There is no evidence of record to show that the train's speed of 79 miles per hour was in violation of any federal, state or local law, ordinance or regulation. Instead, the evidence indicates that the train's speed was in accordance with ICG regulations.

Dr. Olin K. Dart, Jr., an expert in traffic engineering and safety, testified that the North Pass Crossing was not an unreasonably dangerous crossing. He based his opinion on the facts that the Port Commission road was a low volume of traffic road, there was visibility exceeding one mile in either direction up and down the track from the crossing and the crossing was not a highway speed crossing but was a shelled private access road.

The operator of a railroad train may presume that a vehicle approaching the track at a crossing will stop in time to avoid an accident. The train crew is not required to attempt to stop or even to prepare to stop unless there is reason to believe the motorist is unaware of the oncoming train or does not intend to stop. Likewise, the operator of a train may assume that a motorist who starts across the track at a crossing will proceed across the track and will not stop on the track. Wheat v. New Orleans and Northeastern Railroad Company, 245 La. 1099, 163 So.2d 65 (1964); Fisher v. Walters, 415 So.2d 343 (La.App. 2nd Cir.1982), rev'd on other grounds 428 So.2d 431 (La.1983); Kaplan v. Missouri-Pacific Railroad Company, 409 So.2d 298 (La.App. 3rd Cir.1981). Under the law, the train's engineer had the right to assume that Ketcher would either stop his vehicle before crossing the tracks or would continue across the tracks until he reached a point of safety. When Ketcher's vehicle stalled on the main line, the engineer immediately commenced emergency procedures but to no avail. The testimony of Professor Robert MacRae, an expert in the performance of braking systems, indicates that even if the train had been going at a substantially slower speed emergency braking would not have avoided the collision.

Considering all of these facts and circumstances, we cannot say that the rulings of the jury and trial court were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

JURY INSTRUCTION ON NEGLIGENCE PER SE

All of the appellants contend that the trial court committed error by not instructing the jury that the failure to sound a bell, whistle or horn by a train as required by La.R.S. 45:561 is negligence per se. As authority for this proposition, the appellants cite Bertrand v. Missouri Pacific Railroad Company, 160 So.2d 19 (La.App. 3rd Cir.1964), writ refused, 245 La. 1075, 162...