MISSOURI PACIFIC RAILROAD COMPANY v. Soileau

• Decision Date: 29 April 1959
• Docket Number: No. 17332.,17332.
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. John SOILEAU, Guardian Ad Litem and Next Friend for the Minors, Geneva Soileau and Doris Manuel, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

265 F.2d 90 (1959)

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. John SOILEAU, Guardian Ad Litem and Next Friend for the Minors, Geneva Soileau and Doris Manuel, Appellee.

No. 17332.

United States Court of Appeals Fifth Circuit.

March 24, 1959.

Rehearing Denied April 29, 1959.

Jesse D. McDonald, Murray Hudson, Monroe, La., Hudson, Potts & Bernstein, Monroe, La., of counsel, for appellant.

H. Alva Brumfield, Baton Rouge, La., Alfred R. Ryder, Oberlin, La., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

CAMERON, Circuit Judge.

This action was brought to recover for personal injuries received by Geneva Soileau (Guillory) and Doris Manuel when their automobile, stalled on a crossing, was struck by a freight train of Missouri Pacific Railroad Company. Judgment was entered upon separate jury verdicts for the two injured girls, the court denying the Railroad's motion for directed verdict made at the conclusion of plaintiffs' evidence and repeated after all the evidence was in, and denying also motion for judgment notwithstanding the verdicts and for a new trial. The Railroad appeals, alleging (1) that there was no evidence of negligence on its part; (2) if there was such negligence, it was not the proximate cause of the accident; (3) that plaintiffs were contributorily negligent as a matter of law; and (4) that the court erred in admitting certain hospital records into the evidence.

In its written opinion denying the motion for judgment n. o. v., the district court accurately summarized the pertinent facts in these words:

"The accident occurred in the early afternoon of a clear day. At the time of the accident, the driver of the automobile was Geneva Soileau, 16 years of age, and Doris Manuel, also a minor and a guest passenger, was seated on the front seat beside Geneva. As the young ladies approached the crossing, Geneva brought the car to a stop close to a stop sign some 56 feet from the crossing. At that place the girls looked in both directions and saw no trains coming. Having neither seen nor heard any approaching train, Geneva placed the car in low gear and proceeded to move forward to further approach and go across the tracks. She shifted into second just as her front wheels touched the nearest rail. The crossing was extraordinarily hazardous because it was on a steep incline and the rails protruded about four inches over the ballast. Geneva was driving an old model car, and when the wheels went over the protruding rails it caused the car to stall. The momentum of the car could not carry it over the crossing because the rails blocked the wheels and stopped the forward movement. The car stalled with the front wheels clearing the track and the rear wheels remaining between the rails. The young ladies tried unsuccessfully to get the car started and were so engaged when struck by the train; they did not see or hear the train in time to get out of the car. The car had been upon the track between five and fifteen seconds when it was struck. In addition to this, a period of time was required for Geneva to shift the car gear and proceed upon the incline onto the track from the point she had first stopped, a distance of approximately 56 feet. When Geneva first stopped, the train was a considerable distance south of the crossing and this accounted for her failure to see it. The train was admittedly traveling 43 miles per hour, or 63 feet per second. If the car was stalled for 15 seconds, this means that the train was approximately 950 feet from the crossing at the time Geneva tried to cross and stalled."

The Railroad's brief admits that the evidence was in conflict as to whether the enginemen blew the statutory signals approaching this crossing, and it is clear that such a failure constituted negligence and that it was within the province of the jury to say that this negligence contributed to the injuries sued for.

Appellant's argument is based chiefly upon its claim that the occupants of the car were guilty of negligence as a matter of law. In determining the force of this argument it is well to consider that, in its brief, appellant concedes that there was conflict in the evidence as to the level of the ballast between the rails and the length of time the automobile remained stalled on the track. This feature of the case is well summarized in the statement of the court below, supra, setting forth the facts which the jury was justified in finding to be established.

We quote again from the opinion of the trial court on the motion for judgment n. o. v.:

"The railroad was under a duty to keep the crossing in such condition as not to hinder, impede or obstruct its safe and convenient use. A failure on the part of a railroad to keep such crossing in repair, thereby causing injury to a traveler, renders the railroad liable in damages. The duty to keep the crossing in repair is a continuing duty to be discharged whenever the condition of the crossing is in need of repair in order for it to be safe and convenient to the traveling public. (L.LSAR.S. 45:324;¹ Brandon v. Texas and New Orleans Railroad Company La.App., 169 So. 254).

"There is evidence in the record which, if believed, would justify the finding of negligence on the part of the defendant in not keeping this crossing safe. The decided preponderance of the

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