Lewis v. Thompson

• Decision Date: 03 November 1942
• Docket Number: No. 447.,447.
• Parties: LEWIS et al. v. THOMPSON.
• Court: U.S. District Court — Western District of Louisiana

47 F. Supp. 435

LEWIS et al. v. THOMPSON.

No. 447.

District Court, W. D. Louisiana, Alexandria Division.

November 3, 1942.

Coco & Coco, of Marksville, La., for plaintiffs.

Hudson, Potts, Bernstein & Snellings, of Monroe, La., for defendant.

PORTERIE, District Judge.

This suit is brought by Lavie Lewis and his wife, Elnora, to recover from defendant, Missouri Pacific Railroad Company, $20,000 damages for the death of their two minor sons, namely, Cephus Lewis, aged 20, and Jessie Lewis, aged 16, occasioned by the collision of defendant's freight train with an automobile driven by Sam Wickliffe on January 13, 1941, at a public crossing in Forest Hill, Louisiana.

We have found the following facts, given in narrative form, to have been established by the preponderance of the evidence.

The accident occurred during the night, sometime between the hours of 10 and 10:15 p. m. Plaintiffs' two sons were employed in the construction of an Army camp at Camp Claiborne, about two miles north of Forest Hill, and at the time of the collision were traveling in Sam Wickliffe's automobile as paid passengers, en route to work on a night shift which started at 12 midnight. The older of the two deceased, namely, Cephus Lewis, was seated on the front seat with the driver and Jessie was seated on the rear seat with Guy Wickliffe, another passenger. All four worked at the Camp and came from the same neighborhood in the adjoining parish of Avoyelles; hence their travel arrangements.

The freight train was traveling south from Alexandria at a speed of 40 to 45 miles an hour, with eighty-one cars, and was a regular through train. At Forest Hill the railroad is paralleled at a distance of 200 feet by the Alexandria-Lake Charles state paved highway. The little town is incorporated but has a population of only about 500 people and is situated to the south side of the railroad track; and this explains that people desiring to reach the state highway from the south at this point must go through Forest Hill and cross the railroad right-of-way, facilitated at two places within the little town, one being the crossing at which this accident occurred, and another being about a half mile to the south. Camp Claiborne is located just about two miles north of the paved highway from Forest Hill. Hundreds of workers made the crossing where this accident occurred within about an hour before and after the three laborers' shifts at Camp Claiborne, to-wit, 8 a.m., 4 p.m. and 12 midnight. There was not much traffic at the time of the accident; only three or four cars accumulated that night at the time.

No municipal ordinance exists at Forest Hill regulating the speed of trains.

There was a street carnival showing in Forest Hill at the time, with its tents and amusement equipment located on a site, one side parallel to (but 17 feet on) the railroad right-of-way of seventy feet on each side of track, and the other side parallel to and fifty feet from the gravel road. The carnival site paralleled the railroad for a distance of 130 feet and the gravel road for a distance of 75 feet.

Actual measurements showed there was a view north for the driver of the car up the track, as follows: From 40 feet from the east rail, and nearer, unlimited; from 50 feet from east rail, view of 900 feet up track; from 60 feet from east rail, view of 340 feet up track; from 70 feet from east rail, view of 110 feet up track; from 100 feet from east rail, view of 70 feet up track; from 150 feet from east rail, view of 50 feet up track.

Other actual measurements are: From stop sign to east rail of main track, 44 feet; from highway sign (R.R.) to east rail of main track, 127 feet; right of way, 70 feet on each side of track; road or street, 19 feet wide; tracks, fourteen foot centers; rails, 4 feet 8½ inches apart; south corner of tent, 53 feet from track, 50 feet from road or street.

The railroad authorities had on two occasions ordered the owner of this carnival to remove its tents from the right-of-way.

The train had been recently inspected as to equipment and found to be in good order. The engineer and fireman were in their proper places and were maintaining a proper lookout—the engineer seeing nothing on his side, and the fireman seeing the approaching car, coming at a reasonably slow speed, amply slow to stop within three or four feet at any time. The fireman expected the car to stop, as thousands had stopped before in time, when a freight is approaching at night with full light on. The whistle and bell were being continuously sounded for the crossing from a distance of over 300 yards from the crossing to the time of impact.

The weather was clear and the country at the situs of accident is particularly flat and level in all directions. The train passed Forest Hill on time, as regularly due, at its usual speed, with the regular whistle and bell warnings, and making the very loud noise that it always made going along through the settlement.

The street fair was almost closed, and the people who had been there had left. The town light for the crossing was on, and the lighting from the street fair itself gave no sight obstruction to drivers of vehicles coming through at the crossing. The car was being driven at about eight or ten miles an hour and decelerated to about six miles per hour within forty or fifty feet of the main track, without stop, however, and then went right on over, and, if anything, at an increased speed. The driver of the car saw the train, but believed he could make it over safely and attempted to cross; the other occupants of the car, including the two who died as a result of the collision, saw the situation, or should have seen it, but made no objection and did nothing to prevent the driver from going on over the track.

The railroad Louisiana stop-law signs, forty-four feet from the main track, were in good condition at the time of the accident, were upright and legible, had been there continuously before, and remained there continuously after, the accident, though it is true that they were repainted within a week or so after the accident—but this was in the regular run and routine of a repainting squad that happened to reach Forest Hill at that time in its regular run along the railroad line. The highway railroad sign, 127 feet from the main track, was upright and legible, too. Thus ends the narrative of facts, found by the court to have been proved by the preponderance of the evidence.

The plaintiff contends in its charges of negligence, both in petition and brief, that (1) the train was being run at an excessive and careless rate of speed; that (2) there was no sounding of the engine's whistle and there was no ringing of the bell, as required by statute; that (3) there was no mechanical protection at this crossing in the way of automatic signals or spotted watchmen; that the circumstances and the general situation at this crossing impose such mechanical protection as a legal duty on the railroad; that (4) a street carnival was permitted to erect its tents protruding 17 feet upon the right-of-way of the railroad, thereby partially obstructing the view of drivers of oncoming vehicles; that (5) there was no proper lookout; that (6) the driver of the car "complied with the statutory law by stopping his automobile at the `stop-law' sign and looked and listened for approaching trains" (from paragraph 3 of petition); that (7) "said crossing was the only one connecting one main graveled State Highway through the town of Forest Hill with a paved State Highway and bore extremely heavy and constant vehicular traffic in a populous area in the center of said town" (from paragraph 4 of petition); that (8) "said collision occurred shortly before change in a relay of thousands of workmen who used said railway crossing going to and from their work, causing a constant stream of vehicles to pass over said railway crossing and creating an extraordinary hazardous crossing, as well as a dangerous situation, well known to defendant who maintained no mechanical safeguards, signals or watchmen to warn or inform persons using said crossing of any oncoming or approaching trains" (from paragraph 5 of petition).

The defendant, in its answer, denies (1) that the automobile stopped when approaching the crossing; (2) that there was any material obstruction to a view of the approaching train; (3) that the train speed was excessive; (4) that there was any failure to maintain a proper lookout; (5) that there any failure to sound proper warnings; (6) that there was any fault, blame, consent or obstruction consequent upon location of the street carnival, which is best generally expressed by a quotation taken from its answer (paragraph XV): "* * * that he is without any negligence, fault or blame as to any action, condition, matter or thing, in any way bearing any proximately causal connection with the collision, * * * that his train was properly operated; was maintaining a proper and lawful speed; adequate warning by whistle and bell sounded * * * employees were in their proper places, maintaining a strict lookout ahead; * * * no abnormal weather or other conditions, obstructions to view or other unusual or extraordinary conditions or circumstances so as to charge this Defendant with any duty or obligation to take unusual or extraordinary precautions, or to have known or anticipated that an automobile would be driven upon said crossing immediately in front of said approaching train and under circumstances which rendered it impossible to avoid the collision complained of, but that on the contrary the sole and only proximate cause of said accident was the reckless, wanton, careless, negligent and imprudent disregard of their own safety by the driver and the occupants of said automobile and the speed and manner in which said automobile approached said crossing, without stopping, looking or listening for approaching trains, which were plainly visible and from a position before...