Simon v. Texas & N. O. R. Co., 92

• Court: Court of Appeal of Louisiana (US)
• Citation: 124 So.2d 646
• Decision Date: 17 November 1960
• Docket Number: No. 92,92
• Parties: Aubrey LeBlanc SIMON et al., Plaintiff-Appellees, v. TEXAS & NEW ORLEANS RAILROAD COMPANY, Defendant-Appellant.

Page 646

124 So.2d 646 Aubrey LeBlanc SIMON et al., Plaintiff-Appellees,
v.
TEXAS & NEW ORLEANS RAILROAD COMPANY, Defendant-Appellant. No. 92. Court of Appeal of Louisiana, Third Circuit. Nov. 17, 1960.
Rehearing Denied Dec. 14, 1960.
Certiorari Denied Feb. 3, 1961.

Page 648

Louie M. Cyr, New Iberia, for defendant-appellant.

H. Alva Brumfield and Robert E. Turner, Baton Rouge, for plaintiffs-appellees.

Before TATE, FRUGE and HOOD, JJ.

FRUGE, Judge.

The Texas and New Orleans Railroad Company appeals from a judgment rendered in favor of Aubrey LeBlanc Simon, individually, for the sum of $45,000 and for the use and benefit of the minors, Jerry Lawrence Simon and John Alton Simon, $16,500 and $13,000 respectively.

The facts reveal that one Alton Simon was returning home from work at the Jet Base being constructed near New Iberia, Louisiana on June 26, 1958. On his way home it was necessary that he traverse a railroad crossing in Iberia Parish, Louisiana and while crossing said railroad the 'Sunset Limited' belonging to the defendant, crashed into the vehicle of Alton Simon, and, as a result thereof, he met his death. Plaintiff is the wife of Alton Simon, who brought the suit individually and on behalf of her two minor children, children of the decedent. Trial was had by Jury and after the Trial Judge's denial of defendant's motion for a new trial, defendant perfected this appeal to this Court.

The record reveals that the accident occurred at the railroad crossing on a gravel road known as the Old Segura Road Crossing. Defendant's tracks are located just South of U.S. Highway 90 and run parallel thereto. The rail-crossing on the old Segura Road, where the accident in question occurred, is located approximately thirty-eight feet South of the paved portion of U.S. Highway 90. The railroad at this crossing runs in an approximate East and West direction and plaintiff's husband was proceeding alone in his 1952 Dodge sedan automobile in a northerly direction when the accident occurred. Engineering data introduced by the defendant at the trial of the case revealed that the Old Segura Road was considerably lower than the railroad itself and at a point twenty-five feet South of the railroad crossing, the elevation of the Old Segura Road was three tenths of a foot lower than the top of the rail. At a point fifty feet South of the crossing, the elevation of the Old Segura Road was one and two tenths feet lower than the top of the rail and at a point one hundred feet South of the crossing the elevation of the Old Segura Road was two and seven tenths feet lower than the elevation of the top of the rail. At a point one hundred and fifty feet South of the crossing the elevation of the Old Segura Road was three and nine tenths feet lower than the top of the rail.

Page 649

While the deceased, Alton Simon, was alone in his automobile when he left his place of employment which was approximately three quarters of a mile south of the accident crossing, one George Sitting, who was also employed at the Jet Base, left in his car with two co-workers, Shirley Harmon and Lewis Bernard, simultaneously. They testified that the Simon car drove at a speed of approximately fifteen to twenty miles per hour as he proceeded north on the Old Segura Road and thereafter reduced his speed to ten to fifteen miles per hour as it approached the crossing.

It is contended by plaintiff that the defendant railroad company was negligent in keeping its right of way in an unsafe condition, in running its train at an excessive rate of speed and in failing to maintain a proper lookout and proper control over its train, and in failing to sound a warning whistle or bell. Plaintiffs further contend that the decedent was guilty of no contributory negligence and argue in the alternative that if the decedent was guilty of contributory negligence the railroad company is liable under the doctrine of last clear chance. The defendant contends that it was guilty of no negligence whatsoever and in the alternative should the Court find it guilty of any negligence, the decedent was guilty of contributory negligence which was a proximate cause of the accident. It further contends that the doctrine of last clear chance does not apply in this particular case.

Of the many acts of negligence alleged by plaintiff, we believe the two more serious acts of negligence alleged by plaintiff on the part of the defendant was that the defendant did not provide a safe crossing in that the defendant failed to maintain their right of way and allowed weeds and other growth which obstructed one's view traveling on the Old Segura Road in a northerly direction of any trains that might be approaching from his left or West, coupled with the other act of negligence that the defendant train did not sound the warning until a moment before the accident occurred or simultaneously with the accident.

Most of the witnesses testified that it was impossible to see down the tracks until the front wheels of the car were almost on the rails.

Mr. F. R. Falgout, who is a State Trooper, and who investigated the accident testified that the weeds were approximately six feet high and on cross examination testified that the weeds were six feet high from ground level elevation.

Mr. George Sittig, the driver of the automobile which was following the decedent's automobile at the time of the accident testified:

'Q. Were there any weeds or grass along this approach to the crossing? A. Yes sir, they were.

'Q. And how high would you say they were, George? A. Oh, I'd have to guess at it, sir, but they were approximately six feet in area, I mean, from the elevation of the track.

'Q. About six feet above the track? A. Well, approximately. You see, I'm looking at it from down the road. Just looking at it up because the tracks are elevated.

'Q. As you were driving along in your car, as driver could you see down to your left? A. Not very well.

'Q. Where did you have to be before you could see down to the left down that track? A. Well, sir, you would have to be practically on the railroad track itself.'

Shirley Harmon, who traversed the crossing frequently, testified:

'Q. Could you see down the track to the left when you drove up? A. Not from the west; you had to be mighty close.

Page 650

'Q. How close did you have to be on the track? A. You had to be mighty close.

'Q. Would you say practically on the track itself? A. Pretty near. You had to be right on it.'

Mr. Douglas H. Cole, who testified on behalf of plaintiff, testified that on the date in question he did not hear a whistle from the train and in his estimation the train was traveling seventy-five miles per hour. He further testified that the weeds were 'awful high' and 'you had to come up to the track, you had to ease up there to look both ways.'

Mr. Ronald E. Owens, who testified on behalf of the plaintiff, testified that he was driving his vehicle on U.S. 90 and that he was approximately two hundred fifty feet from the intersection of the Old Segura Road with U.S. 90. He testified that the train in his judgment must have been traveling about eighty-five or ninety miles per hour and that he heard the whistle blow about a half second before the crash. He testified that the whistle blowing and the crash were almost simultaneous. He further testified that there were weeds and grass growing along the track 'right up to the track' and 'right up to the railroad'.

Mr. Edward O. Bauer, a traffic supervisor of the City of Baton Rouge, testified on behalf of plaintiff as an expert. His testimony was to the effect that on the date of the trial one proceeding in a car from the South going North would have to be approximately twenty-five to twenty-eight feet from the crossing in order to have an unobstructed view of the railroad track to the West. It was his opinion as of the date of the trial that the crossing was a hazardous crossing. He testified, assuming that there were weeds six to eight feet in height in the area of the date of the accident, as testified by plaintiff's witnesses, a party traveling in his vehicle toward the North 'would have to be mighty close' to get a view of any train proceeding East.

There were many photographs introduced in the record on the trial of the case, both by plaintiff and defendant. All of the photographs deal with the site of the accident and the weeds and grass around the site of the accident. The record also reveals that the weeds were cut five days after the accident by employees of the defendant. Mr. H. L. Chambers, Claim Agent for the defendant, on the date of the accident took several pictures, approximately one hour after the accident occurred. Mr. Chambers testified concerning the pictures primarily as follows, to-wit:

'Q. Did you observe on that day the view which could be had of an approaching train? A. I did, yes, sir.

'Q. Will you state to the Jury just what your observations were? A. I went down the road south of the track and I came back north to the point where you could get a reasonably clear view of the crossing. That point was approximately 110 feet from the tracks. That's at the intersection of that dirt road that parallels the tracks on the south side of the railroad.

'Q. Now, on that date, how near to the track would a motorist have had to be in order to get an unlimited view of trains approaching from the west?...