Renz v. Texas & P. Ry. Co., 443

CourtCourt of Appeal of Louisiana (US)
Citation138 So.2d 114
Docket NumberNo. 443,443
PartiesRuby Spurgeon RENZ, Individually, etc., Plaintiff-Appellee, v. The TEXAS & PACIFIC RAILWAY COMPANY, Defendant-Appellant.
Decision Date07 February 1962

Page 114

138 So.2d 114
Ruby Spurgeon RENZ, Individually, etc., Plaintiff-Appellee,
No. 443.
Court of Appeal of Louisiana, Third Circuit.
Feb. 7, 1962.
Rehearing Denied March 14, 1962.
Certiorari Denied April 30, 1962.

Page 115

Frank H. Peterman, Alexandria, and Gerard F. Thomas, Jr., Natchitoches, for defendant-appellant.

Fruge & Foret, by Jack C. Fruge , Ville Platte, for plaintiffs-appellees.

Before TATE, SAVOY and HOOD, JJ.

TATE, Judge.

On the afternoon of January 16, 1960, a train operated by the defendant railroad struck an automobile driven by William Renz. As a result of this collision, Renz and his two passengers were killed, one of them being his five-year old daughter, Mary Ruth. This suit is brought by Renz' widow to recover individually for his death and also for the death of their minor child, Mary Ruth; and she also brings this suit in her capacity of natural tutrix of her surviving minor son, James William, to recover damages for his use and benefit arising from the death of his father. (By a companion suit the widow of James Spurgeon, the other passenger in the vehicle, also brought suit to recover damages arising out of the latter's death. See Spurgeon v. Texas & Pacific Railway Company, 138 So.2d 128, rendered this same date.)

The case was tried before a jury. The jury returned a verdict awarding the plaintiff, Mrs. Ruby Spurgeon Renz, $30,000 for the death of her husband, and an additional $50,000 for the death of her minor daughter. The defendant railroad appeals from judgment rendered pursuant to such verdict. The plaintiff answers the appeal, praying for an increase in the amount awarded the widow individually for the death of her husband and also that the judgment be amended so as to award damages for his father's death to the surviving minor child of the couple, James William Renz.

The plaintiff contends that the defendant railroad's gross negligence was the sole proximate cause of the tragic accident in which three lives were lost. Essentially, the plaintiff contends that the railroad negligently maintained an unusually hazardous and unsafe crossing, that its trains approached this unusally hazardous crossing at an excessive rate of speed, and that the railroad negligently failed to sound adequate warning of the approach of its passenger

Page 116

train--the railroad's negligence in each of these respects constituting a contributory proximate cause of the accident. Plaintiff's petition alleges that due to the high grass and weeds near the crossing, and due to the presence of the two gondola cars on the west side of the crossing, it was impossible for the decedent's approaching automobile to see a train approaching from the west. As to the operation of the train, the plaintiff alleges that it was travelling at an excessive rate of speed, that the operator did not keep a proper lookout, and that no proper warning was given by the approaching train.

The defendant railroad, on the other hand, contends, as stated in its brief, 'that the accident was not caused by any fault or negligence on its part or that of its agents or employees; that the operators of the train had the right to believe that the occupants of the automobile would stop before driving on the track and that the train could have been seen by them before they entered the right-of-way; that said employees had no reason to believe that the automobile would be driven across the right-of-way and up onto the track in the path of the approaching train; that the failure of the driver of the automobile to observe the train as it approached, or in going on the track after he saw or should have seen it constituted negligence which was the proximate cause of the accident.'

Alternatively, the defendant contends that contributory negligence in such respects defeats recovery on the part of the driver and of Spurgeon. The defendant-appellants finally contend that it was prejudiced by certain irregularities in connection with the jury trial, as a result of which, in the alternative, it is entitled to a remand for a new trial.


The evidence shows that at about 3:00 P.M. on the cloudy Saturday afternoon of January 16, 1960, the decedent Renz was driving a Chevrolet north on a gravel road towards the Chopin community in Natchitoches Parish. Renz was driving the car, his daughter was sitting by his side, and Mr. Spurgeon was seated in the right front of the car. Their intention was to make a purchase at the general store located in the community of Chopin, Louisiana.

Before reaching the general store, the Renz automobile was required to cross a railroad crossing maintained by the defendant, The Texas & Pacific Railway Company. There are two tracks at this crossing, both running generally in an east-west direction. The southern track is a spur track, and the northern track is the main track. The crossing was somewhat steeply elevated from the level of the roadway, and the northern track was higher than the southern spur track.

As the Renz automobile approached the crossing from the south, there were two gondola cars standing on the left (or west) side of the crossing on the spur track, some four to six feet from the crossing.

When the Renz automobile was attempting to cross the railway track, a fast-moving passenger train approaching from the west at a speed of 70 mph struck the Renz automobile on its left side. The impact of the collision carried the automobile several hundred feet to the east of the crossing, and hurled all three of the passengers from the vehicle. The automobile was demolished, and all three occupants were killed instantly. The train was brought to a stop one-half mile away.

The gravel road upon which the Renz vehicle was approaching made a rather steeply inclined crossing over the railroad tracks. The main tracks were about four feet higher than the travelled level of the gravel road. In addition, for northbound traffic, the main tracks were one foot above the level of the spur tracks, making a steep rise during the ten-foot interval between the tracks. The roadway across the main track was over boards sixteen feet wide, but there were no boards to ease motor traffic's passage over the spur tracks.

Page 117

The uncontradicted testimony is that neither northbound nor southbound motor traffic could observe the other until at the crest of the crossing, and that, due to this circumstance as well as the relative narrowness and roughness of the crossing, the motorist was required in the operation of his vehicle across it to maintain the utmost concentration on the path ahead, in addition to the lookout required for oncoming trains.

It is further uncontradicted that on the day of the accident the defendant railroad had left two long gondola cars parked on the spur tracks at the crossing just 4 1/2--6 feet west of the gravel road. Because of them, a northbound motorist approaching the crossing could not see trains approaching from the west until his front wheels were virtually on the tracks.

However, the defendant contends that a northbound motorist could still observe eastbound trains approaching up until the motorist was about 35 feet south of the crossing, following which admittedly the gondolas prevent observation of oncoming trains.

On the other hand, the plaintiff contends that the gondolas themselves blocked visibility of northbound motorists for a much further distance, pointing out for instance that the railroad engineer and firemen involved in the accident themselves admitted that the gondolas blocked out their own visibility of the oncoming car starting some 300--450 feet from the crossing until the car came up onto it. Plaintiff also relies upon unequivocal testimony that a motorist stopping at the railroad stop sign 52 feet south of the intersection could not, because of the parked gondola cars, see any train approaching from the west, further arguing that high weeds along the railroad right of way and an abandoned depot several hundred feet south of the crossing also interfered with a northbound motorist's observation of approaching eastbound trains.

As to the signals given by the approaching train, there is the usual conflict. The trainmen stated that horn signals were given continuously from a quarter of a mile before the crossing up until the crossing itself. Two witnesses who were in a car north of the crossing at the time of the accident stated, respectively, that the train just whistled once at a cattle-gap about eight hundred feet west of the crossing, or two to three times at this cattle-gap. Another non-railroad witness, a laborer working about 75 yards from the crossing on cotton gin grounds south of the tracks, stated that he only heard the train give three short blasts almost simultaneously with the collision with the automobile.

The plaintiff cites LSA-R.S. 45:561:

'Every railroad company or person owning and operating a railroad in this state shall equip each locomotive engine with a bell and a whistle or horn which, under normal conditions, can be heard at a distance of three hundred yards and, upon engines approaching at grade any street or highway crossing, whether or not said crossing shall be otherwise protected, shall, For a distance of not less than three hundred yards and until crossing is reached, cause either the bell to be sounded continuously or blasts of the whistle or horn to be sounded in the manner, provided by the Uniform Code of Railroad Operating Rules, * * *.'

To allow recovery either for the driver or for the passengers, the trial jury must have found that defendant-railroad was guilty of negligence. The preponderance of this evidence indicates that this negligence consisted of its parking the gondolas so close to the roadway as to create an extremely hazardous crossing whereby motorists were unable to observe approaching trains, and also in its giving inadequate warning of the approach...

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