Ledet v. Texas & N.O.R. Co.
| Decision Date | 11 April 1955 |
| Docket Number | No. 20425,20425 |
| Citation | 79 So.2d 604 |
| Parties | Jerry J. LEDET v. TEXAS AND NEW ORLEANS RAILROAD COMPANY. |
| Court | Court of Appeal of Louisiana — District of US |
Porteous & Johnson, F. Carter Johnson, Jr., New Orleans, attorneys for plaintiff-appellee.
Chaffe, McCall, Toler & Phillips, New Orleans, for defendant-appellant.
At about 2:00 a.m., on the morning of July 22, 1953, at a railroad crossing near Boutte, a sparsely settled neighborhood, some 18 or 20 miles west of New Orleans, a motor truck belonging to plaintiff, Jerry J. Ledet, stalled on the main line track of defendant railroad company, and shortly thereafter was struck and demolished by a locomotive of defendant company which was pulling a string of 77 freight cars towards the City of New Orleans.
Alleging that the cause of the accident was negligence on the part of the engineer operating the locomotive and that his truck, before its destruction, was worth $1,650, Ledet brought this suit for that amount against the defendant company. He charged that the locomotive engineer was negligent in the following particulars; that he failed to have the locomotive under proper control; that he failed to maintain a proper lookout for vehicles which might be on the crossing; that he did not attempt to stop or failed to stop the locomotive although there was sufficient time and distance for such a stop after the presence of the truck on the track should have been discovered, and in that he failed to act 'as a reasonable and prudent person' would have acted under the same or similar circumstances.
The defendant company denied that its engineer was in any way at fault. It averred that its locomotive and all of its equipment were in 'proper working order'; that the locomotive's headlight 'was burning full candlepower,' and that both the engineer and the fireman were maintaining a careful lookout; that its train was proceeding at a lawful and proper rate of speed, under proper control, and that the crossing signals were sounded; that the presence of the truck on the track was discovered as soon as it could have been discovered, and that the 'brakes were immediately applied in emergency,' and it avers that 'the distance in which the truck could be and was seen was so short' that the train could not be stopped before striking the truck.
In the alternative that it should appear that there was negligence on the part of any employee of defendant company, it was especially alleged that plaintiff was himself contributorily negligent in permitting his truck to remain 'on the crossing over defendant's track at a time when the darkness into which its dull silver color tended to merge would make it invisible to those in charge of approaching trains until they were too close to stop in time to avoid striking it.'
It was conceded that plaintiff's truck was totally demolished and that the value thereof prior to the accident was $1,650.
There was judgment for plaintiff as prayed for, and defendant has appealed suspensively.
There is practically no dispute over the facts, and the matter was presented below and was argued before us almost entirely on the sole question of whether there was negligence in the engineer in operating the train at a speed which did not permit of its being stopped within the distance illuminated by the headlight of the locomotive.
It is true that there is a dispute over the question of whether the engineer was looking out and saw the truck as soon as he should have seen it, and over the question of whether he applied the brakes as soon as they should have been applied after he saw the truck on the tracks ahead. But the evidence on these points is so conclusive that it may be said that there is no foundation for a dispute on these questions and that the record clearly establishes that the engineer saw the truck as soon as he should have seen it and that he applied his brakes in emergency immediately on becoming aware of the presence of the truck.
There is no dispute at all over certain facts. The locomotive was pulling a freight train which consisted of 60 loaded cars and 17 which were empty. The loaded cars contained freight weighing 3,450 tons. We mention this because we shall later refer to another train which was used in making certain tests and which was being pulled by a locomotive identical with that involved in this accident and which train consisted of 85 cars of which 54 were loaded and 31 were empty and which contained freight weighing 3,475 tons.
The speed of the train when the engineer noticed the truck was 40 miles per hour. Forty-five miles per hour was the maximum permitted by the regulations of the defendant company and there is no contention that any statutory law, local or otherwise, required that the speed be less than the 40 miles per hour at which the train was being operated.
As the train approached the crossing there was a slight curve to the right. The arc of this curve was shown to be one degree, three minutes, thirty seconds. The train entered this curve at a point 1,500 feet from the crossing and when it reached a point 486 feet from the crossing it had completed the curve and from that point to the crossing the track was straight.
The engineer says that as he reached a point near the crossing whistle sign--this is shown to be 2,048 feet from the crossing--he began sounding the crossing signal which consists of two long blasts of the whistle, then one short blast, then one long blast, and he says that just before completing the last long blast he noticed the truck on the crossing and that he immediately closed the throttle and applied the brakes in emergency. He says that when he first saw the truck the locomotive was about 600 feet from the crossing and that the train was brought to a stop when the locomotive was about 300 or 400 feet beyond the crossing after having struck and demolished the truck. He added that at a speed of 40 miles per hour with a train such as he was pulling at that time and under those conditions, a distance of about 1,200 feet is required to stop in emergency.
An effort was made by counsel for plaintiff to show that the train could have stopped more quickly by what counsel referred to as 'flat spotting.' We understand this to mean the application of brakes so firmly that all of the wheels slide with a resulting flat or worn spot on the lower side of each wheel. The testimony of the experts and of the engineer shows that beyond a doubt a quicker stop is effected by applying the brakes in emergency which means to apply them firmly and at intervals to release them slightly and then to apply them again.
As we have said, the evidence convinces us that there is no doubt at all that a quicker stop was effected by the method adopted by the engineer than could have been effected by 'flat spotting' the wheels.
Mr. E. D. Keen, admittedly an expert traveling engineer, says that as a result of tests with a similar locomotive, pulling a similar train, he determined that it would require a distance of 1,300 to 1,400 feet to effect an emergency stop.
The locomotive headlight is shown to have been in perfect condition and its beam projected light sufficiently to disclose an object on the track 900 feet ahead of it. The record shows that the regulations of the Interstate Commerce Commission require that such a headlight must be effective for a distance of 800 feet; so that this headlight complied fully with the requirements of the Interstate Commerce Commission.
Further tests made at the crossing disclosed that, as a locomotive approaches from the west, because of the curve of the track, which contour the headlight does not follow, the crossing is not illuminated by the headlight until the locomotive reaches a point 760 feet from the crossing. At that distance the headlight illuminates the crossing sufficiently for an automobile truck to be seen 'but not identified.' At 660 feet such an object as an automobile can be identified.
The fireman, who was on the left side of the locomotive, says that he was looking out; that he saw the truck for the first time when the locomotive was about 500 feet from it, and that the engineer applied the brakes immediately in emergency.
There is not one syllable of evidence which tends to controvert any of these figures except that counsel for plaintiff assert that the testimony of the engineer indicates that he does not know how far he was from the crossing when he first saw the truck nor how far he was when he first applied the brakes. The testimony of the engineer as to when the whistle was blown and when the brakes were applied is corroborated by the fireman.
The engineer says:
Since the crossing whistle sign is slightly more than 2,000 feet from the crossing and since the engineer says that he started to blow the crossing whistle when he reached that sign and that he saw the truck just before he completed the last long blast, counsel for plaintiff argue that the locomotive must have been more than 600 feet from the crossing when the truck was seen by the engineer. This argument overlooks the fact that the time required for the blowing of four blasts, three of which are quite long, was certainly several seconds. And it further overlooks the positive testimony of both the engineer and the fireman that they both were looking out ahead and that they both saw the truck at about the same distance, and that the brakes were immediately applied. And the engineer says that when he applied the brakes the locomotive was about 600 feet from the crossing. The fireman says that when the brakes...
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