Smith v. Texas & Pac. Ry. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: TALIAFERRO, Judge.
• Citation: Smith v. Texas & Pac. Ry. Co., 189 So. 316 (La. App. 1939)
• Decision Date: 31 March 1939
• Docket Number: 5881
• Parties: SMITH v. TEXAS & PAC. RY. CO.

189 So. 316

SMITH v. TEXAS & PAC. RY. CO.

No. 5881

Court of Appeal of Louisiana, Second Circuit.

March 31, 1939

Rehearing Denied April 28, 1939

Appeal from Eleventh Judicial District Court, Parish of Sabine; Wm H. Ponder, Judge.

Suit by Oscar A. Smith against the Texas & Pacific Railway Company for personal injuries and for damages to truck caused by collision with train. From a judgment for plaintiff defendant appeals, and appeal was granted to plaintiff.

Affirmed.

$900 for temporary injuries, including superficial wounds and fracture of pelvic bone, causing short hospitalization, and for damages to truck three years old, value of which trial judge fixed at $150, held adequate.

Wise Randolph, Rendall & Freyer, of Shreveport, for appellant.

W. Peyton Cunningham, of Natchitoches, and J.S. Pickett, of Many, for appellee.

TALIAFERRO, Judge.

Plaintiff, as he was driving across defendant's track at Thigpen's Crossing in Sabine Parish, at the hour of 9:50 A.M., March 6, 1928, was run into by a west (north) bound passenger train. The truck was demolished. He sustained serious physical injuries, alleged to be permanent, and sues for damages on that account and for the value of the truck. He charges responsibility for the accident to defendant and its train operatives. He alleged upon the following acts of negligence on their part:

Excessive speed of the train; the failure to give warning or signal of its approach by ringing bell, blowing whistle or otherwise; failure to have posted warning or danger signs at the crossing; and the piling of crossties on the right of way in the angle of the cross-road and the track, or causing same to be piled, so as to constitute an obstruction at the crossing.

Defendant denied negligence on its part as a cause or contributing cause of the accident, and specifically avers that it happened solely because of plaintiff's own negligence in these respects: that he approached and drove upon the track without stopping, looking or listening to ascertain the probable approach of trains; in failing to see the approaching train in full view to his right; and in driving upon the track when the train was so close that it could not possibly be stopped before striking him.

In the alternative, these alleged acts of negligence are employed to base a special plea of contributory negligence upon.

The case was brought to trial in June, 1938. It resulted in a judgment for plaintiff for $900. Appeals were granted to both parties.

Defendant's track above and below the crossing for several hundred feet is straight. Plaintiff was driving northerly on a graveled highway which parallels the railway on its west side. He was en route to contact a squad of road workers at some point east of the track over which he was foreman. He made a right turn onto a dirt (public) road which crosses the track at right angles, and was struck by the train while pursuing this course. It is 63 feet from where this road leaves the graveled highway to the center of the track. The piles of crossties referred to herein were about as high as the average man's head. They were south of the dirt road and not over 12 feet west of the track, and formed to some extent an obstruction to vision down the track to a motorist immediately prior to crossing the track from the west side, as plaintiff was doing when injured.

Plaintiff made the turn onto the dirt road slowly and testified that, observing a bad place in the road, he stopped the truck when its front wheels were at the foot of the incline leading to the track, a distance of some 10 feet. This placed him and truck immediately north of the crossties. He got out of the truck for a brief period and then resumed his seat therein. He looked to his right as best he could over the piles of ties, and saw no train nor did he hear any. The road was wet and slippery. The truck was in low gear. He moved forward very slowly and could not gain a view up the track to his left, due to a nearby cut through which it passed, until his front wheels had gotten over the first or west rail, and, while in this position, for the first time observed the passenger train upon him, so close that he could not avert being hit by it. It was moving at not over 40 miles per hour, which was not excessive. At this speed, however, about 60 feet per second, the train was evidently several hundred feet away when he got back into the truck.

The only testimony in the record which to any extent is contrary to that given by plaintiff, above summarized, is that of the train's fireman. He says that he noticed plaintiff driving up the road at about 15 miles per hour and observed him from that time on until the collision; that he saw him turn slowly into the dirt road, attaining a speed of from 4 to 6 miles per hour, and drive without stopping onto the track. The train then was several hundred yards below the crossing. He assumed that plaintiff would observe the train's presence and stop before trying to cross the track, and was not aware that he did not purpose to do so until the train was within 150 feet of the crossing and plaintiff within 10 feet of the track. He then holloed to the engineer on the opposite side of the cab that " a man was crossing the track" . The brakes were instantly applied. The train was not stopped until its rear coach had cleared the crossing. Of the two versions of plaintiff's movements when approaching the track, the trial judge accepted plaintiff's. This version shows that he acted within the law.

Plaintiff is positive he did not hear any whistle of the train nor the ringing of a bell. Defendant's engineer and fireman testified that the usual crossing whistles were blown when the train was in a curve, the north end of which is shown to be about 1800 feet from the crossing. They also say that after the whistling ceased, the bell was set to ringing and continued to ring until after the train had stopped above the crossing. Several witnesses residing on the railway line, within a short distance of the crossing, are positive no whistle was blown prior to the collision and are equally positive that the bell was not ringing, as testified to by the engineer and fireman. The trial judge rejected the trainmen's testimony about the bell ringing, and largely predicated his judgment upon the failure to give proper signals of the train's approach.

We quote from his reasons for judgment:

" The court is satisfied from the evidence that it had been customary for this train which was operated on this date to sound an alarm near the house referred to in the evidence as Mr. Stockton's house, and which was approximately 250 yards southeast of the crossing. All of the witnesses for the plaintiff stated that the train did not sound the alarm by whistle, as had been customary prior to its approach to the crossing, and the court knows of no reason why this was not done on the particular morning of the accident.

" The court is satisfied from the evidence also that the crossties which the defendant placed upon its right of way or which were allowed by them to be placed upon the right of way for their convenience in loading, constituted an obstruction to the vision of those approaching the crossing to any train that might be approaching from the southeast; especially in view of the fact that only a few hundred yards to the southeast was a cut out of which the train had to come, and especially in view of the fact that there was a depression in the road at that particular point, created by reason of a washout into which it was intended to place a culvert.

" The defendant's witnesses, the engineer and fireman, both testified that the defendant's train was sounding an alarm by a bell ringing, but all of the evidence of the plaintiff's witnesses was that no bell was ringing or any alarm being sounded, and it is rather strange that one of the plaintiff's witnesses who was riding on the train did not hear the bell sound; neither did one of the defendant's witnesses, Mr. F.M. Williams, who was roadmaster and riding the train on that particular date.

" The fireman and engineer testified that the bell was ringing and those who lived near the track testified that the bell was not ringing. Mr. William Davis, who was riding the train and a disinterested witness,

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