Senegal v. Thompson

• Decision Date: 26 November 1956
• Docket Number: No. 4136,4136
• Citation: 91 So.2d 865
• Parties: Edna SENEGAL (Sam MULLER, Jr., Substituted as Plaintiff) v. Guy A. THOMPSON, Trustee of Missouri Pacific Railroad Co. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 865

91 So.2d 865

Edna SENEGAL (Sam MULLER, Jr., Substituted as Plaintiff) v. Guy A. THOMPSON, Trustee of Missouri Pacific Railroad Co. et al.

No. 4136.

Court of Appeal of Louisiana, First Circuit.

Nov. 26, 1956.

Rehearing Denied Jan. 22, 1957.

Writ of Certiorari Denied Feb. 27, 1957.

Hudson, Potts, Bernstein & Davenport, Monroe, Kaufman, Anderson, Leithead & Scott, Lake Charles, for appellant.

Plauche & Stockwell, J. R. St. Dizier, Lake Charles, for appellees.

ELLIS, Justice.

On October 24, 1951, at about 11:30 P.M. a car, stolen or at least being used without the consent of the owner, was being driven by Burwick Harris, with Joseph Senegal, Jr., as a passenger on the front seat, and Sam Muller, Jr., as a passenger on the rear seat, ran into the side of a red box car which formed one of forty-nine freight cars and a switch engine that had been stopped with the designated car across Louisiana Highway 42. This crossing is on the eastern edge of the city limits of Lake Charles, Louisiana.

As a result of the collision Harris, the driver of the car, and Senegal, the passenger on the front seat, were killed and Muller was seriously injured. Three separate actions were filed against the Trustee of the railroad and the train engineer as co-defendant. The suit against the train engineer was dismissed on a holding that there was a lack of control as well as responsibility for the negligence conduct of the railroad. There was no appeal taken from this ruling.

The cases were consolidated for trial as well as for argument in this court, with separate decrees having been rendered by the District Court and to be rendered by this Court. The District Court rendered judgment in favor of Sam Muller, Jr., in the principal sum of $8,651.50, and the railroad has appealed. Judgment was rendered against the mother of Burwick Harris dismissing her suit at her cost on the ground of the contributory negligence of Harris as the driver of the car, and she has appealed. The suit by the father of Joseph Senegal, Jr., passenger on the front seat and who was also killed in the accident, was dismissed at his cost on the ground of contributory negligence, and hence an appeal.

While the record contains some thirteen hundred pages, the legal and factual issues are not complicated. The main question at issue in this case is whether the crossing in question under the facts and settled jurisprudence was of such a hazardous nature as to require the railroad to station a flagman, lighted flares, fusees or other special warning devices at the crossing immediately prior to the time the accident occurred.

Our learned brother of the Lower Court in his written opinion has correctly found from the evidence the basic facts necessary, when considered in the light of the established jurisprudence to arrive at a correct conclusion with regard to the hazardous or non-hazardous nature of the crossing at the time of the accident. We take the liberty of quoting that portion of the Lower Court's opinion dealing with the basic facts surrounding the actual conditions at the crossing at the time of the accident, together with a statement of the established jurisprudence laying down the rule by which the courts are to be guided. We quote:

'The evidence indicates that at about 11:30 P.M. on October 24, 1951, Burwick Harris, Joseph Senegal, Jr., and Sam Muller, Jr., were riding in a 1947 model Chevrolet sedan in a northerly direction on Louisiana Highway 42 in Calcasieu Parish. The automobile was being driven by Harris. Senegal was seated in the front seat to the right of the driver, and Muller was in the rear seat. An accident occurred at the point where the tracks of the main line of the Missouri Pacific Railroad, owned and maintained by defendant Guy A. Thompson as Trustee of the Missouri Pacific Railroad Company, cross Louisiana Highway 42 on the eastern edge of the city limits of Lake Charles.

'The highway at the scene of the accident is a blacktop highway approximately 20 feed in width, running north and south, and it is fairly straight for a considerable distance on either side of the railroad crossing. The railroad track runs approximately east and west at that point, and it crosses the highway at about a 90-degree angle. The surface of the track at the site of the crossing is higher than the surface of Highway 42 South of such crossing. According to an actual survey, it appears that the surface of the highway is 1.3 feet lower than the railroad track at a point 100 feet south of the crossing, is 1.6 feet lower at a point 200 feet south of the crossing, and is two feet lower than the surface of the crossing at a point 400 feet south of such crossing.

'There were two signs located south of the track designed to give notice to a motorist approaching from the south that such crossing existed. One of those signs was the usual yellow highway marker, located on the east side of the highway approximately 350 feet south of the railroad track. The other sign was the regular Louisiana stop law sign located along the east side of the highway approximately 30 feet south of the track. There were no flashing signals or lighted signs of any kind giving notice to approaching motorists of this crossing, and no additional warning devices other than the two signs hereinabove described existed at that point. At the time the accident occurred it was dark, but the weather was clear and the highway was dry.

'The only building in the immediate vicinity of the railroad crossing was one located east of the highway and south of the railroad track, which building was used for the bulk distribution of Pan Am gasoline products. The center of the railroad crossing was approximately 75 feet from the nearest corner of the building. At the time the accident occurred there were five 100-watt light bulbs burning on or in the vicinity of that structure, one on each of the four corners and another on the south side of the building. Only the two lights located on the southwest and northwest corners of the building, however, were in such a position that they might have illuminated trains on the crossing. After reviewing the evidence, this Court is convinced that, because of the location and low wattage of these lights, the slight illumination which they provided of that crossing was effective only at very close ranges, and thus the lights on the Pan Am building were of little or no assistance to motorists approaching from the south in detecting the presence of a standing box car on that crossing.

'The railroad yards of the Missouri Pacific Railroad, consisting of a number of switch tracks, a car repair shed, a yard office and other necessary improvements, was located immediately west of this crossing. The car repair shed was located a little less than 800 feet west of Highway 42, it being the nearest building west of the crossing. Numerous 'switching' operations were conducted daily in the railroad yard, and this crossing was used frequently during all hours of the day and night for the purpose of switching or making up trains, as well as for the passage of freight and passenger trains to and from Lake Charles.

'Several minutes prior to the time of the accident a freight train operated by defendant railroad company, consisting of a switch engine and a cut of 49 cars, occupied this crossing. The locomotive was being operated by defendant McDermott, the engineer, and by J. L. Fordham, the fireman. McDermott was stationed in and on the right side of the cab of the locomotive, and Fordham was on the left side of the cab.

'This train was travelling in an easterly direction at the time it first occupied the crossing, and it was brought to a stop when the switch engine or locomotive reached a point approximately 2,000 feet east of Highway 42. While the train was standing after being brought to such a stop, the 44th car, a red boxcar, completely blocked the highway, the center of said car being approximately over the center of the highway. This box car was about 44 feet in length, and since the hard surfaced portion of the highway was only 20 feet wide, it is apparent that while the car was standing in that position its wheels were located on either side of the hard surfaced portion of the road, on or beyond the shoulders of the highway. The train was in that position at the time the accident occurred. The point of impact was approximately in the center of the highway, and the automobile involved in the accident struck the 44th car of the train almost in the center of that car.

'Between the time the train was brought to a stop and the time of the accident, R. E. Harris, an employee of defendant railroad, was standing near the west end of the 49th car, or approximately 200 feet west of the crossing, and two other employees of defendant, D. L. Moss and J. V. Duhon, were standing near the railroad road track approximately 600 feet west of the crossing. All of these employees carried lighted lanterns, but they were too far from the highway to enable them to warn the approaching vehicle of the fact that the crossing was occupied. No other employee of defendant company or any other person was stationed at or near the crossing for the purpose of warning approaching vehicles.

'The train remained stationary, with the 44th car completely occupying the crossing, for a period of from three to five minutes immediately prior to the time of the accident. A few seconds before the collision occurred one of defendant's employees gave a back-up signal with his lantern to engineer McDermott. The engineer, in response to this signal, blew the whistle of the train signifying that it was to back up, and he immediately caused the train to begin moving in a westerly direction. The accident occurred at or about the instant the back-up signal was given, and thereafter the railroad employees stationed west of the highway promptly signaled for an emergency stop. As soon as this signal was given, engineer...