Plummer v. Gulf, M. & N. R. Co.

• Decision Date: 06 March 1934
• Docket Number: 1314
• Citation: 153 So. 322
• Parties: PLUMMER v. GULF, M. & N. R. CO. et al. HAMPTON v. SAME
• Court: Court of Appeal of Louisiana — District of US

153 So. 322

PLUMMER v. GULF, M. & N. R. CO. et al.

HAMPTON v. SAME

No. 1314

Court of Appeal of Louisiana, First Circuit.

March 6, 1934

Ponder & Ponder, of Amite, for appellants.

Benj. W. Miller, of Bogalusa, for appellees.

OPINION

MOUTON Judge.

The two plaintiffs above named, while riding in a truck as guests of George Rouse, were injured in a collision of the truck with a passenger coach which was across a switch track of defendant railroad company.

Suits were brought by these plaintiffs in damages against George Rouse and defendant company, which resulted in judgments rendered against George Rouse who has not appealed; also in a judgment in favor of defendant company rejecting the demands of plaintiffs against it, from which these plaintiffs have appealed.

Our opinion will therefore be restricted to the issues involved in the two suits of these plaintiffs against defendant railroad company, which were consolidated below for trial and which were disposed of by the district judge for reasons given in one opinion and adversely to the contentions of these plaintiffs.

In these two cases, the defendant company filed exceptions of no right of action, which the court overruled, and in which we find no error.

Merits.

The district court rejected the demands of the plaintiffs for the reasons given in its opinion, as follows:

"These two plaintiffs were riding as invited guests in a Chevrolet truck driven by the defendant, George Rouse, on the 11th day of February, 1932, shortly after 5 o'clock in the morning, when this truck ran into a passenger coach across a switch track operated by the defendant railroad company. For the purpose of switching and turning trains, this switch track is used as one branch of a "Y" switch, which track crosses the highway leading from Bogalusa to Franklinton within the limits of the City of Bogalusa. The highway is paved and runs from Austin Street in Bogalusa in a westerly direction to Franklinton and crosses the main line of this railroad just west of Austin Street and then proceeds westerly around a slight curve in the highway north of the railroad shops to within a distance of about 125 feet of the crossing when the road becomes straight. There is no obstruction to the view in approaching this crossing from the east on the highway, except at night the headlight of an automobile would not throw the headlight of the car directly along the highway until the car had completed, or almost completed, the curve some 125 or 150 feet before reaching the street crossing, when there would be nothing to obstruct the view of the driver of a car going in a westerly direction and approaching this crossing from the east.

"The grounds of negligence relied on by the plaintiffs to hold the defendant railroad responsible may be divided into and discussed under four separate heads, all of which negligence is denied by the railroad company.

"(1) The first ground of negligence charged against the railroad is that the railroad failed to erect and maintain at this crossing a Louisiana law stop sign. Act Number 12 of 1924 which required all railroad companies to place these stop signs at certain distances on each side of the approach to these crossings does not apply to switch tracks nor does it apply to crossings in cities having a population of over ten thousand people. As this switch track, on which the accident occurred, is not part of the main line but is used for switching purposes and as the crossing is located within the City of Bogalusa, which has a population of over ten thousand, this law does not apply to this case. There has been no ordinance or regulation of the city introduced or cited which requires the placing of such sign at this switch track crossing and therefore the case will have to be decided on the law as interpreted without reference to this act. Pearce v. Missouri Pacific Railroad Company (La.App.) 143 So. 547.

"Even though it should be held that it was the duty of the defendant railroad to place such a stop sign at the crossing I find from the evidence in the case that there was such a sign placed at this crossing at the time of the accident. It is true that several witnesses testified that there was no such stop sign placed on either side of the crossing, but only a railroad crossing sign which was torn down by the impact of the car of plaintiff at the time he ran into the coach across the highway. However, the decided preponderance of the evidence convinces me that there was a stop sign placed at this crossing as required by the Act of 1924, above referred to. All of the employees of the defendant company testify that there was such a sign placed at both approaches to the crossing as required by this law, including Mr. E. R Cassidy, and Mr. Yarbro, who are very positive on this point and whose testimony the Court believes is correct. In addition to that the City Engineer, Mr. Willis, also testified that there was such a sign placed at this crossing and had been so placed there for some time before the accident occurred. Therefore, whether or not it be held the duty of the railroad to place such a sign at the crossing the preponderance of the evidence shows that there was such a sign placed at the crossing at the time of the accident, and therefore the plaintiffs have failed to prove their allegations of negligence on the part of the railroad company on this point.

"(2) The plaintiffs allege that the defendant railroad company was negligent in not having a flagman or switchman stationed at the crossing with a lantern or light to warn approaching motorists that the crossing was blocked by the passenger coach in the night time. The general rule of law on this point is that unless there are some unusual conditions of danger it is not necessary for railroads to station a flagman or other person with a lantern at the approach of a crossing to warn drivers of automobiles of the blocking of such crossing by railroad cars when such cars are placed across the highway on a switch or track in the usual and legitimate process of switching and operating the business of the railroad. St. Louis-San Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A. L. R. 1110; G. M. & N R. Co. v. Kennard, 164 Miss. 380...