Rachal v. Texas & P. Ry. Co.

• Decision Date: 31 October 1952
• Docket Number: No. 7843,7843
• Citation: 61 So.2d 525
• Court: Court of Appeal of Louisiana — District of US
• Parties: RACHAL et al. v. TEXAS & P. RY. CO.

Page 525

61 So.2d 525

RACHAL et al. v. TEXAS & P. RY. CO.

No. 7843.

Court of Appeal of Louisiana, Second Circuit.

Oct. 31, 1952.

Rehearing Denied Dec. 10, 1952.

Russell E. Gahagan and G. F. Thomas, Jr., Natchitoches, for appellant.

Frank H. Peterman and J. Charles Burden, Jr., Alexandria, for appellee.

Richard B. Williams, Natchitoches, for intervenor.

HARDY, Judge.

Plaintiff, individually and as natural tutrix of her two minor children, brought this suit for the recovery of damages resulting from the death of her husband, Edgar Rachal, in an automobile-train collision alleged to have been caused by the negligence of defendant railroad. Plaintiff prayed for trial by jury which returned a verdict in favor of defendant rejecting plaintiff's demands and judgment was signed accordingly, from which judgment plaintiff has appealed.

Consolidated for trial and for purposes of appeal were companion cases against this same defendant and in which the plaintiffs were Mrs. Ezella Rachal Desadier and Mrs. Pearl Delrie Vascocu, which cases are respectively Nos. 7844 and 7845 on the docket of this court, 61 So.2d 530; 61 So.2d 530.

The accident took place in Natchitoches Parish at the crossing of Louisiana Highway 432, which is a connecting road between the towns of Flora and Natchez, and the Taxas & Pacific Railway tracks, on the 27th day of December, 1950, at about 1:00 o'clock P.M. A truck which was being driven south on Highway 432 by John Vascocu and occupied by Edgar Rachal and Raney Desadier, all three being employees of the Natchitoches Parish Police Jury, was struck by an eastbound train of defendant company, en route from Shreveport to Cypress, and all three occupants of the truck were instantly killed. Vascocu and his fellow employees had been engaged in loading lumber on the truck at a point a short distance from the intersection described. Vascocu drove the truck along a dirt road and entered gravel highway 432 at a point a few hundred feet north of the T. & P. crossing, where they turned to the right and proceeded south on Highway 432. The train, which was made up of a locomotive, water car and caboose, was approaching the crossing from the west. The railroad stop sign required by Louisiana statute is located on the west side of the highway slightly more than 50 feet north of the tracks. For a distance of something less than 30 feet south of the sign the view of the track to the west was obscured by a high dirt bank, an abandoned sawmill structure, and, allegedly, by weeds and underbrush, all these obstructions being located on or partially on the defendant's right-of-way. However, for a distance of 22 feet north of the track there is an open and unobstructed view of the track to the west from the highway.

The allegations of negligence, both omission and commission, on the part of defendant and its train crew on which plaintiff relies, as set forth in her petition, are:

(a) Failure to have train under proper control;

(b) Driving train at an excessive rate of speed over a road crossing where it was known that a view of the track was obscured and where heavy vehicular traffic passed at all hours;

(c) Failure to sound a whistle or bell continuously from a point 300 yards from said crossing until the crossing was passed, in violation of LSA-R.S. 45:561;

(d) In allowing the view of the track at the crossing to become obstructed by brush and weeds and making it impossible 'for persons driving or traveling in a southerly direction to see or observe a train coming from the west toward the crossing.'

(e) In allowing the view of the track to be and remain obstructed by the high bank or cut, making observation to the west impossible, and by constructing and maintaining the track over the crossing in such manner as to impede, hinder and obstruct the safe and convenient use of the road in violation of Act 157 of 1910, LSA-R.S. 45:324.

(f) In failing to have the train under control 'or bring it under control and stop it before crashing into the truck which defendant's agent saw or should have seen was in a perilous position.'

(g) In failing to keep a proper lookout.

In her amended and supplemental petition plaintiff additionally urges the charge of negligence on the ground that defendant failed to provide some warning device in the nature of a barrier, an electrical system, or some other type of equipment for the purpose of warning travelers of the approaching trains despite the fact that to its knowledge the crossing was situated in a populous community and was heavily used by persons living thereabouts. Plaintiff urges that this failure to eliminate the obstructions to view or to install warning devices, or 'slow their trains when approaching such an obstructed crossing' was negligence which proximately caused the accident.

It is to be observed that a number of these allegations of negligence are repetitive, and accordingly a discussion may be simplified by reducing them to the few pertinent and material charges which are recognized by counsel for plaintiff in brief and argument before this court and which are entitled to consideration in the light of the evidence developed on trial.

Counsel for plaintiff correctly concedes in brief that the right to recovery depends upon establishment, to the satisfaction of the court, that the defendant or its employees or agents failed to measure up to the standard of ordinary care or prudence required by the circumstances surrounding the accident. This statement indeed embodies the very crux of the matter and upon the determination of this proposition rests the solution of the issue presented.

The first of the surrounding circumstances or conditions which must be considered bears upon the nature and character of the community in the vicinity of the accident. It is earnestly contended by counsel for plaintiff that the site of the accident is in the heart of a somewhat thickly populated rural community. We do not think this fact is borne out by the preponderance of the testimony comprehended in the record. On the contrary it appears that the vicinity is what may be described and has been referred to in cases involving railway accidents as open country. It is quite true that there were a number of residents within a radius of a few hundred yards, but unfortunately for plaintiff's contention, it appears that most of these residents, that is the bulk of the population of the vicinity was centered in and about the small town of Flora, a place of a few hundred population. Flora itself is a neighboring town or village some distance from the crossing which is here concerned, which crossing was known as Weaver's Spur. The preponderance of the testimony, including that of the witnesses on behalf...