Lagrange v. Missouri Pacific R. Co.

• Decision Date: 04 March 1987
• Docket Number: No. 86-334.,86-334.
• Citation: 503 So.2d 1158
• Court: Court of Appeal of Louisiana — District of US
• Parties: Wilbert LAGRANGE, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellee.

503 So.2d 1158

Wilbert LAGRANGE, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellee.

No. 86-334.

Court of Appeal of Louisiana, Third Circuit.

March 4, 1987.

Morrow and Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.

Dubuisson and Dubuisson, James G. Dubuisson, Opelousas, for defendant-appellee.

Before DOUCET and YELVERTON, JJ., and CULPEPPER, J. Pro. Tem.^*

WILLIAM A. CULPEPPER, Judge.

Wilbert Lagrange (hereinafter plaintiff) sued for damages sustained when a train operated by Missouri Pacific Railroad Company (hereinafter defendant) struck the automobile he was driving. From a trial court judgment finding in favor of the defendant and dismissing plaintiff's suit, plaintiff appeals.

The decisive issues are whether the trial judge was clearly wrong in finding as a fact that defendant was free of negligence in (1) failing to sound the train whistle at least 300 yards in advance of the crossing, and/or (2) failing to treat this as an unusually dangerous crossing because of the motorist's restricted view.

At approximately 5:00 P.M. on August 6, 1981, plaintiff was driving his pickup truck in a westerly direction on a parish road in St. Landry Parish at a speed of about 30 miles per hour. It was a clear and sunny day. As he crossed the railroad track marked only with a cross-buck sign, he was struck by defendant's train traveling in a southerly direction at about the same speed. Plaintiff suffered serious personal injuries.

Plaintiff contends first that defendant did not blow the whistle at least 300 yards in advance of the crossing as required by LSA-R.S. 32:168. Several witnesses called by the plaintiff testified that they were nearby and did not hear a whistle blowing prior to the collision. Some of these witnesses also testified that they did not even hear the impact of the crash, although they resided near the accident site.

Plaintiff testified he heard no train whistle or horn. The only sound he remembered was a "rumbling" such as a three wheeler makes. He never saw the train prior to impact, and did not remember whether he slowed down or stopped or looked.

Witnesses on behalf of the defendant testified that they were nearby and heard a whistle blowing prior to the accident. Two witnesses testified that they remembered hearing the whistle blow at least twice before the train approached the crossing.

The crewmen aboard the train testified that they heard the whistle blowing continuously prior to the accident. The engineer testified that he positively remembered blowing the whistle from the time the train passed the whistle board, which was 1,349 feet in advance of the crossing. The fireman and the front brakeman stated that the engineer blew the whistle continuously from the time the train reached the whistle board until the point of impact. The rear brakeman testified that the engineer usually blew the horn even where he was not required, such as at farm crossings, and he remembered that the engineer had been blowing the horn continuously for at least 30 seconds prior to the accident.

It is well established that negative testimony that a person did not hear a warning sign will not prevail over positive and credible testimony that such a warning signal was displayed. Green v. Kansas City Southern Railway Company, 399 F.Supp. 1180 (W.D.La.1975), aff'd, 538 F.2d 897 (5th Cir.1976); Kennison v. Missouri Pacific Railroad Company, 241 F.Supp. 545 (W.D. La.1965); Henderson v. Missouri Pac. R. Co., 15 La.App. 196, 131 So. 586 (La.App. 2 Cir.1930). The testimony of defendant's witnesses and the train crew establishes that the whistle was blown continuously for the required distance as it approached the crossing. In absence of testimony to show that the members of a train crew are not worthy of belief, courts cannot disregard their testimony merely because they were interested parties. Henderson, supra; Glisson v. Missouri Pacific Railroad Company, 246 La. 470, 165 So.2d 289 (1964).

We conclude the evidence is clearly sufficient to support the trial judge's finding of fact that the whistle was sounded the required 300 yards.

Plaintiff contends next that he did not notice the train since his vision was obstructed by trees and brush lining the tracks, which constituted a "dangerous trap" and was a direct cause of the accident.

The dangerous trap doctrine is a jurisprudentially created rule which states that if a crossing is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train, the railroad will be held liable, unless it can show that it took unusual precautions, such as reducing the speed of the train, or increasing its warning devices. Glisson, supra.

The evidence shows this is a two lane black-topped parish road running generally east and west in a rural area. The railroad tracks run north and south. Plaintiff was going west and the train south. Thus, the northeast quadrant of the intersection is at issue here.

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