Matthews v. New Orleans Terminal Co.

• Decision Date: 27 March 1950
• Docket Number: No. 19356,19356
• Citation: 45 So.2d 547
• Parties: MATTHEWS v. NEW ORLEANS TERMINAL CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 547

45 So.2d 547

MATTHEWS v. NEW ORLEANS TERMINAL CO. et al.

No. 19356.

Court of Appeal of Louisiana, Orleans.

March 27, 1950.

James J. Morrison, New Orleans, for plaintiff and appellee.

Monroe & Lemann, New Orleans, Walter J. Suthon, Jr., New Orleans, of counsel, for defendants and appellants.

McBRIDE, Judge.

About 1 o'clock, a. m., on February 21, 1948, plaintiff's automobile was struck on its left side by a Diesel locomotive, at the intersection of Elysian Fields Avenue and the railroad tracks of New Orleans Terminal Company, located on the embankment alongside the Florida Avenue Canal in the City of New Orleans. This suit was instituted for $26,515.83 by plaintiff against New Orleans Terminal Company and New Orleans and Northeastern Railroad Company, the petition alleging that the locomotive was owned by both of said defendants.

Plaintiff charges, among other things, (1) that no bell or whistle signal was given by the engineer, (2) that the flasher-light signals placed by the railroad at the crossing were not operating and failed to give warning of the approach of the train, (3) that the headlight on the locomotive was not illuminated, (4) that the train was being operated at too fast a speed, and (5) that the engineer was incompetent. Alternatively, assuming the possibility of a finding of contributory negligence of plaintiff's part, recovery is sought upon the last clear chance doctrine.

Defendants denied negligence on the part of their employees, and charged that the accident was caused solely through the negligence of the plaintiff, and alternatively the plea is made that the plaintiff was guilty of contributory negligence barring a recovery. The answer denies that defendant, New Orleans and Northeastern Railroad Company, had any participation in the accident, and avers that the accident took place on a track of defendant, New Orleans Terminal Company, and that the railroad movement involved was a movement of said defendant.

A jury trial resulted in a 9-to-3 general verdict for plaintiff for $2,370.40, against New Orleans Terminal Company. Said defendant moved for a new trial, which was refused by the trial judge with written reasons, and thereupon said defendant prosecuted this appeal from the judgment on the jury's verdict. By way of answer to the appeal, plaintiff prays for an increase in the award to the full amount sued for.

In denying a new trial, the judge stated:

'I did not agree with the verdict of the Jury. If the case had been tried before me alone, I would have rendered a judgment in favor of the defendant. While I disagreed with the Jury's verdict, I did not regard the verdict so erroneous that it could not be corrected on appeal. I had no power to take the case from the Jury and render judgment in accordance with my own views. On the motion for a new trial, I could only order a retrial before another Jury, but I could see no useful purpose to be served by ordering a retrial.'

'The record was made up as fully as either side desired to present its case, and there was no suggestion of any newly-discovered testimony in the matter and the award was not excessive. Any case that was contested as this one, was certain to be appealed, no matter which side prevailed at the trial. As the parties had full opportunity to make up their record, I concluded the case might as well go up on appeal upon the record as made up, in order to save time and expense, and to avoid the delay involved in a retrial at the next Jury Term, and eventually an appeal.'

It is the duty of a trial court to see that justice is done between the litigants, and if, in a case tried before a jury, the judge believes that the verdict is unauthorized and unjust, he should grant a new trial, and the fact that such course may involve time and additional expense is an insufficient reason for his making a verdict, which in his opinion is not supported by the law and the evidence and will operate an injustice, the judgment of his court. C.P. arts. 521, 527, 541, 560; Act No. 51 of 1908; Burt et ux. v. Shreveport Ry. Co., 142 La. 308, 76 So. 723.

However, in a case where the trial court believes that the verdict of the jury is contrary to the law and the evidence, but refuses a new trial rather than remand the case, it is the duty of the appellate court to pass a definitive judgment on the record before it, irrespective of whether the district judge was or was not correct in his refusal to grant the new trial. Aethans v. Toye Bros. Yellow Cab Co., La.App., 191 So. 717.

Plaintiff was driving on the right-hand roadway of Elysian Fields Avenue in the direction of the lake. Said avenue, which runs from the Mississippi River toward Lake Ponchartrain, has a neutral ground in its center 111 feet wide, with a paved roadway 24 feet wide on each side of the neutral ground to accommodate vehicular traffic. Florida Avenue crosses Elysian Fields Avenue at about a right angle. The distance from the river-side edge of the intersection of Elysian Fields Avenue with Florida Avenue, to the railroad track on which the accident happened, along the paved roadway upon which plaintiff was driving, is about 210 feet. Along Florida Avenue is a drainage canal, across which there is a bridge, and the distance between this bridge and the railroad tracks is about 130 feet.

The train, which consisted of a Diesel locomotive and thirteen freight cars attached, was proceeding in a downtown direction, i. e., crossing Elysian Fields Avenue, in a movement toward the Press Street yards. In other words, the train approached from plaintiff's left. The railroad, at this point, is double-tracked, and the tracks are on a slight elevation, and consequently there is a slight upgrade which must be traversed by an automobile crossing the tracks. The train movement was on the track nearer to the river--the first track reached by the automobile.

The tracks curve moderately, but not sharply, as they come toward Elysian Fields Avenue, and the direction of the curve is such as to enable a motorist travelling in the direction as was plaintiff, to see the approaching train by looking to his left and ahead, and was not such as to necessitate a sidewise and backward glance in order to see whether a train was coming. All witnesses agree that there were no structures or other obstructions of such nature as to interfere with plaintiff's view of the train as it approached.

Although the petition alleges that the railroad employees were guilty of negligence in many respects, plaintiff's proof has fallen far short of making out a case. The only eyewitnesses to the accident besides plaintiff were the members of the train crew. Plaintiff's entire version of the accident is set forth in the following extract taken from his direct testimony: 'As I approached Florida Avenue which crosses Elysian Fields, I passed a truck. I passed it on my left; the truck was on my right approximately about a half a block before I got to the tracks. So I approached the tracks; I looked in both directions, particularly to the left because there is not a slight bend there, but a rather large bend that would obscure your vision of an on-coming train if you were not careful. I slowed up before I got to the tracks and then started over, but before increasing my speed after slowing up at the grade, there is a grade there, I definitely looked for the signal lights located there, and there was no noise or undue traffic, and I am very positive there were no signal lights working, nor any bells ringing at that time. I attempted to cross the first line of tracks and had a very slight fraction of time before I was struck by the train. I could almost feel, before I could see, the impact of the train upon me. That covers about as far as I could remember. * * *'

At no time did plaintiff refer to the absence of the sound of bell or whistle signals emanating from the locomotive, nor did he make any allusion to the headlight of the locomotive.

On the other hand, members of the train crew testified that bell signals were given, and that the air horn of the Diesel engine was sounded while the train approached the crossing, and that the signals, both by means of the bell and the air horn, were given for other nearby crossings as well. They agreed also that the headlight on the locomotive was brightly illuminated. This testimony of the crew members, being absolutely uncontradited, must be accepted as being true.

It clearly appears from Matthews testimony that before increasing the speed of the automobile after slowing at the upgrade his undivided attention was directed toward the flasher-light signals, which he insists were not in operation at the time and gave him no warning of the approach of the on-coming train.

Appellant concedes that the crossing in question, at the intersection of a railroad track and a paved street, is one which Ordinance No. 14,114, C.C.S., of the City of New Orleans, requires be protected by an automatic flasher signal light installed by the railroad. Appellant, at the time of the accident, admittedly had such an automatic signal device, which included an automatic bell, at the paved roadway on which plaintiff drove toward the lake, and that the signal device faced in the direction from which traffic on that roadway approached. The trainmen all testified that the signals were properly functioning.

No useful purpose whatever would be served by resolving the question whether the crossing signal lights were properly operated, or for that matter if they operated at all. However, assuming arguendo that the lights were not flashing, such fact of itself would not relieve plaintiff of the duty imposed upon him by law to stop, look, and listen for approaching trains, and by the exercise of purdence and vigilance to avoid placing himself in a position of imminent peril.

The pertinent principle of law is stated in Brown v. Texas & Pacific Ry. Co. 42 La.Ann. 350, 7 So. 682, 684, 21 Am.St.Rep....