Lockhart v. Missouri Pac. R. Co

• Decision Date: 29 March 1934
• Docket Number: 4701
• Citation: 153 So. 577
• Court: Court of Appeal of Louisiana — District of US
• Parties: LOCKHART v. MISSOURI PAC. R. CO

153 So. 577

LOCKHART v. MISSOURI PAC. R. CO

No. 4701

Court of Appeal of Louisiana, Second Circuit.

March 29, 1934

Rehearing denied May 4, 1934.

M. C Redmond and Dhu Thompson, both of Monroe, for appellant.

Hudson Potts & Bernstein, of Monroe, and Robert P. Kennedy, of Lake Providence, for appellee.

OPINION

TALIAFERRO Judge.

The automobile in which plaintiff and her father, William T. Parks, were riding, when crossing defendant's track three miles south of Lake Providence, La., the afternoon of February 6, 1931, was run into by a freight train of defendant traveling south, with the result that Mr. Parks was killed and plaintiff was severely injured. She sues to recover damages for said injuries. The car was owned by and was being driven by Mr. Parks. Plaintiff was riding on the front seat with him. The specific acts of negligence charged against defendant and its agents and employees, entitling her to recover herein, are alleged to be:

That the train crew did not sound any alarm, blow a whistle, or ring a bell, or give any other warning of the approach of the train to the crossing, and that the engineer and fireman in charge of the engine were not keeping a reasonable lookout for traffic at said crossing; and she argues that, had such warnings been given, they would have been heard by her and her father, and the accident averted. It is admitted in the petition that she and her father did not hear the train or know of its presence, until it struck the automobile, because of the noise made by trucks passing on the highway and the noise of their own car; and, further, it is admitted that as the automobile turned from the highway to its left at right angles and headed toward defendant's track, some 40 feet distant, their attention was directed toward several trucks hauling gravel, approaching from the south, or their right side; and, inferentially, it is admitted that because their attention was thus directed at this particular moment, they did not look to their left and, consequently, did not observe the train a short distance away.

Defendant denies that the collision was due to any negligence on the part of its train operatives, but that it was due solely and proximately to the negligence, carelessness, and fault of plaintiff and her father.

In the alternative, should it be held that defendant was guilty of any negligence proximately causing said accident, the contributory negligence of plaintiff and her father is pleaded in bar of her right to recover; such contributory negligence consisting of their failure to observe and comply with the requirements of law and/or the dictates of ordinary caution, prudence, and safety, for themselves and those in charge of said train, in that they did not stop, look, or listen, before crossing said track, a place of known danger, and the failure on their part to see the approaching train, which was in plain and unobstructed view, a short distance away.

The demands of plaintiff were rejected by the lower court, and she appeals.

In this case, we are favored with a record in which there is virtually no dispute as to the true facts attending the unfortunate tragedy in which plaintiff was involved. She and her father rode together almost daily in his automobile. He was 62 years old, but was considered by plaintiff a safe and careful driver and had not, prior to this time, had a serious accident with his car. They were well acquainted with the situation where the accident occurred, having crossed there often, and, in fact, drove over this crossing a few hours before the accident. They were returning from Lake Providence and were driving south on the gravel highway, west of and adjacent to defendant's right of way. On all sides of the crossing the country is open. At the time of this accident there was a side track a few hundred yards below the crossing on which cars loaded with highway construction material were unloaded. The train was reducing its speed preparatory to cutting loose some twenty cars of gravel at this siding. The road into which the Parks car turned, when it left the highway, is not a public one. It is merely a dirt road that goes some 200 yards east to the then residence of a Mrs. Laird, sister of plaintiff. It stops at Mrs. Laird's place. It passes into a field, through a gate, on the east side of the railway right of way, and is not generally used by the public. Members of the crew testified that they had not, before this accident, seen an automobile cross the track at this point. Plaintiff and her father were on their way to Mrs. Laird's when the collision occurred. Their car was going at not more than fifteen miles per hour prior to turning into the dirt road, and as the turn was made, its speed was reduced to five or six miles per hour. It came to a momentary stop while crossing a depression, 2 feet deep and 6 feet wide, that intersected the road very close to the highway. When the car came out of the depression, it proceeded slowly as it took the slight grade toward the track not over 30 feet distant. It was struck a glancing blow, on its left side, about the front fender, knocked southerly, and ran down the right of way for not over 50 feet.

The train consisted of twenty-nine loaded and nineteen empty cars, plus caboose, engine, and tender. Its length was over 2,000 feet and its load 2,000 tons. It was moving at an hourly speed not in excess of twenty miles when the intersection was crossed, and stopped within 500 feet after the collision. It was in charge of an experienced crew. Its brakes were operating efficiently. It is admitted that no bell was rung, no whistle was blown, nor other signal or warning given by the crew, as the train approached the crossing. It is also admitted that unless there is special reason for doing so, no signal or warning of a train's approach to a private crossing in the open country is ever given. The rule is the reverse at public highway crossings.

There can be no doubt that Mr. Parks did not see the train at all before the actual impact. He did not see it because he did not look to his left; and for the same reason plaintiff admits that she did not see it. It could not have been more than 150 feet away when the car came out of the depression in the road. Their view toward it was wholly unobstructed. Going at a very slow rate of speed, he drove his car onto defendant's track when the train was only a few feet from him. The car could have been stopped instantly by application of the brakes, which plaintiff says were in good condition. His car did stop within 40 feet of the track, but he did not look and listen as the law and ordinary prudence required that he should do. The rule laid down in Baltimore & O. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A. L.R. 645, finds peculiar application to the facts in this case. It is: " * * * When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk."

Under the facts of the case it would hardly be argued that Mr Parks could have recovered for his injuries had he survived the accident. His own gross negligence, independent or contributory, precluded the possibility of such a result. The fact that no suit was filed by his...