Smith v. New Orleans & N. E. R. Co.

• Decision Date: 03 May 1963
• Docket Number: No. 5841,5841
• Parties: Cleve T. SMITH v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 533

153 So.2d 533

Cleve T. SMITH v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY et al.

No. 5841.

Court of Appeal of Louisiana, First Circuit.

May 3, 1963.

Rehearing Denied June 3, 1963.

Brumfield, Turner & Cooper, by H. Alva Brumfield and Sylvia Roberts, Baton Rouge, for appellant.

Monroe & Lemann, by Walter J. Suthon, Jr., New Orleans, Benjamin W. Miller, Bogalusa, Bernard, Micholet & Cassisa, by Peter L. Bernard, Jr., and Paul V. Cassisa, New Orleans, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

This present action as well as the matter entitled Elmer L. Wheat v. New Orleans & Northeastern Railroad Company, et al., Number 5842, La.App., 153 So.2d 543 (with which the present suit was consolidated for purposes of trial and appeal) arise from a grade crossing accident involving a 1960 Model Ford Falcon automobile owned by plaintiff, Cleve T. Smith, but being driven at the time by Elmer L. Wheat, plaintiff in Suit Number 5842, and a passenger train operated by defendant railway company. The accident occurred April 18, 1960, at approximately 7:10 P.M., at a crossing in St. Tammany Parish near the intersection of Louisiana Highway 1090 and U.S. Highway 11. Smith sues for the value of his automobile which was completely demolished as a result of the collision. In the companion suit Wheat prays for judgment for personal injuries, loss of earnings and medical expense allegedly sustained and incurred as a result of the accident. From the judgment of the trial court rejecting their respective demands, both plaintiffs have appealed. Defendant railway company has answered the appeals praying that the trial court's dismissal of its reconventional demand against plaintiffs for damages to defendant's locomotive resulting from the collision be reversed and set aside and judgment rendered in favor of defendant in the sum prayed for below.

On the date in question plaintiff Wheat was proceeding westerly along Louisiana Highway 1090, a graveled highway, at a lawful and moderate rate of speed, approaching its intersection with defendant's railway tracks. He stopped before driving onto the tracks, looked in both directions and proceeded to negotiate the crossing. Upon attaining the tracks the engine of the automobile stalled and despite Wheat's efforts he was unable to restart the motor. At the same time a passenger train operated by defendant railway company proceeding southerly over defendant's said tracks at a speed approximating 60 miles per hour, collided with the right side of the stalled vehicle.

By petitions supplemented and amended, both petitioners ultimately named as defendants herein New Orleans and Northern Railroad Company, General Motors Corporation, Casey Harper Ford Company and Ford Motor Company. Defendant railroad company is charged with negligence proximately causing the accident in allegedly having failed to maintain the aforesaid crossing in a safe condition. Plaintiffs also contend defendant railway company, through its employees who were operating the train, was guilty of negligence in failing to maintain a proper lookout, failing to ring the bell, blow the whistle or sound the horn; in operating the train at an excessive rate of speed and failing to exercise the last clear chance of avoiding the accident.

Alleging the automobile stalled due to mechanical failure, namely, a defective fuel pump, plaintiffs maintain defendant, Casey Harper Ford Company, the dealer from whom Smith purchased the vehicle, was negligent in breaching its warranty that the automobile was free of inherent and latent defects, failing to properly inspect and test the vehicle prior to sale to petitioner and failing to warn Smith of the defective fuel pump attached to and forming and integral part of the automobile.

General Motors Corporation, fabricators of the fuel pump used in the manufacture and assembly of the Falcon automobile purchased by plaintiff Smith, was made defendant under allegations charging said concern with negligence in manufacturing, selling and distributing fuel pumps warranted safe and fit for use but actually so defectively and improperly made as to possess hidden vices and defects which caused plaintiff's automobile to stall. Ford Motor Company's negligence is said to consist of its violation of its manufacturer's warranty that the vehicle was free of hidden and latent defects.

Duri g the course of the trial plaintiffs moved to dismiss their respective claims against Ford Motor Company and Casey Harper Ford Company with prejudice but with full reservation of their rights against the remaining defendants.

Defendant railroad company denies all negligence attributed to its employees and reconvened for damages to its engine. Alternatively, said defendant contends that should any of its employees be found guilty of negligence proximately causing the accident, plaintiffs' recovery herein is barred by the contributory negligence of Wheat in failing to maintain a proper lookout, failing to stop at the crossing and look for approaching trains; driving onto the tracks in such an imprudent manner as to permit the vehicle to stop thereon; failing to move the vehicle from its position of danger; driving an automobile with mechanical defects and failing to flag defendant's train.

Answer filed on behalf of defendant General Motors Corporation denied any negligence on its part in the manufacture, inspection or testing of the allegedly defective fuel pump and alternatively contended the accident occurred solely through the negligence of plaintiffs.

Both appellants maintain the trial court erred in (1) finding defendant railroad company free of negligence proximately causing the accident; (2) holding General Motors Corporation was not guilty of negligence in the manufacture, inspection and testing of the fuel pump and (3) failing to render judgment in favor of plaintiffs and award the damages requested in plaintiffs' petitions.

We shall first consider the case against defendant railway company. On the date in question plaintiff Wheat was driving the Falcon automobile with the permission of its owner, Smith, who is Wheat's brotherin law. At approximately 7:10 P.M. Wheat was driving the vehicle westerly along State Highway 1090 and upon approaching the intersection in question stopped, looked in both directions, observed no oncoming trains, and proceeded to cross the railway tracks. He shifted from first to second gear whereupon the motor began to 'give trouble' so he shifted back into low gear at which time the automobile 'began to jump' and went dead upon the tracks. Wheat's efforts to restart the motor were unsuccessful. While continuing his attempts to start the engine he suddenly noted the approach of defendant's train bearing down upon him from his right or the north. He recalled attempting to 'bail out' of the vehicle but remembers no subsequent events until he awoke in a hospital at Picayune, Mississippi, to which institution he was taken immediately following the accident.

It is undisputed it was dark at the time of the accident. It is likewise conceded the highway in question is a graveled roadway 22 feet in width. From a distance of approximately 50 feet on either side of defendant's tracks there is a gradual rise or incline in the highway of approximately two feet. North of defendant's crossing the highway is admittedly straight for a distance of approximately one-half mile. Approximately 75 feet west of and parallel to defendant's right of way is situated U.S. Highway 11.

Defendant's train had last stopped at Poplarville, Mississippi, approximately 20 miles north of the crossing; its next scheduled stop being Slidell, Louisiana, some 2 or 3 miles distant. Although the train was admittedly 8 to 10 minutes behind schedule it was not travelling at an excessive rate of speed as will hereinafter be shown. The record reveals conclusively the crossing in question is situated in what is termed 'open country'.

J. J. Curren, Engineer in charge of the train, testified he was proceeding at approximately 50--55 miles per hour whereas railway regulations permitted a maximum speed of 80 miles per hour at this particular location. His train was composed of the engine and six cars with an overall length of approximately 415 feet. He was proceeding with his lights on. His lights consisted of a stationary headlight which shone constantly straight ahead and an oscillating 'Mars light'; they afforded him a range of vision extending an estimated 1,000 feet. When the train was approximately 1,000 feet distant from the crossing, Curren noted the vehicle upon the tracks and also observed the lights of the automobile were not burning. Thinking the vehicle would proceed over the tracks, he continued his progress. Upon reaching a point approximately 600--700 feet from the crossing, he noted the vehicle was making no effort to clear the tracks and immediately applied his brakes with heavy pressure; he did not apply full or maximum pressure in order to avoid putting the train into an emergency stop. The train struck the stalled automobile and stopped with the rear car approximately 900 feet beyond or south of the crossing.

According to Curren he commenced his regular crossing whistle (consisting of a series or four whistles of 2 and 1-second duration each separated by 1-second pauses lasting a total of 10 to 15 seconds) at a point approximately 900 feet north of the crossing marked by a 'whistle board' placed there to warn the engineer of a crossing ahead. At another point in his testimony, however, he stated he did not see the vehicle until after the first whistle.

Jim Barrett, Fireman on the train, was standing near the center of the engine cab looking through the left side of the windshield and observed the car upon the track when the train was approximately 1,000 feet away. He shouted to Curren to blow his warning signal. According to Barrett, when Curren noted the...