Thompson v. Morgan

• Decision Date: 26 November 1928
• Docket Number: 29523
• Citation: 167 La. 335,119 So. 69
• Court: Louisiana Supreme Court
• Parties: THOMPSON v. MORGAN. In re THOMPSON

119 So. 69

167 La. 335

THOMPSON v. MORGAN.

In re THOMPSON

No. 29523

Supreme Court of Louisiana

November 26, 1928

Judgment of Court of Appeal affirmed.

W. M Harper, H. H. Russell, and J. B. Dawkins, all of Monroe, for applicant.

George Wesley Smith, of Rayville, for defendant.

OPINION

LAND, J.

Relator was injured in the collision of a motorcar, operated by him as gang foreman, with an automobile driven by defendant. The accident occurred in the afternoon of February 3, 1927, at a crossing over the tracks of the Missouri Pacific Railroad at Sicard in the parish of Ouachita.

The lower court awarded relator damages for the personal injuries received by him in the collision. The Court of Appeal, Second Circuit, reversed this judgment, and its decision is now before us for review.

The Court of Appeal found that both relator and defendant were at fault, and held that the negligence of relator, as gang foreman, consisted in his operating a motorcar, owned by the railroad company, without being equipped with gong or other device for signalling, and in his failure to give any signal as he approached the railroad crossing.

There are three tracks at the Sicard crossing -- a team track,passing track, and a main track. The tracks run north and south.

The Dixie Overland Highway parallels the tracks on the west for a distance of about 1,000 feet, but turns abruptly east a short distance before reaching the crossing.

In approaching the crossing from the west side, the tracks lay in the following order: Team track, passing track, and main track upon which the accident occurred.

When defendant arrived at the crossing in his automobile, he had traveled over the Dixie Overland Highway a distance of 1,000 feet in a northerly direction. In covering this distance defendant kept a lookout towards the north, but failed to detect the approach of any train. The view of the tracks north of the crossing was obstructed by a box car spotted on the team track at a distance of 62 feet above the crossing, and also by a skirt of woods growing up to the right of way.

Defendant lowered the speed of his automobile by placing it in second gear at the abrupt turn in the highway as it extends east to cross the tracks of the railroad. He then directed his attention to the south, and continued to look in that direction for danger up to the moment of the accident. As defendant failed, while on the crossing, to look to the north, the direction from which the motorcar approached, he was guilty of negligence, notwithstanding the care with which he had approached the crossing.

It is negligence for a person to be upon the track of a railroad without keeping watch both ways for trains. Vappi v. Morgan's Louisiana & T. R. & S. S. Co., 155 La. 183, 189, 99 So. 31; 8 Thompson on Negligence, par. 170; 33 Cyc. Railroads, p. 924.

The duty to look and listen before crossing a railroad must be performed at a time and place where looking and listening will be effective. Young v. Louisiana Western R. Co., 153 La. 129, 95 So. 511.

Relator admits in his testimony that the motorcar which he was operating was not equipped with signalling devices of any kind. He admits that his engine was cut off as he neared the crossing, and necessarily the approach of the motorcar to the crossing was not accompanied by the usual volume of noise.

He was aware of the presence of the box car on the team track, and of the obstructed view to the north, thereby rendering the crossing more dangerous to motorists approaching it from the west side of the tracks.

Besides, relator admits seeing the defendant as he reached the abrupt bend in the highway, as it turns at the stop sign to cross the tracks, a short distance from the railroad crossing.

If relator saw defendant at all at this point, he must have realized the fact that defendant was looking south, and not north, from which direction the motorcar was approaching, and that defendant continued to look south, away from the direction of the impending danger, after he had reached the crossing. Under such conditions, relator was not justified in presuming that defendant would perform his duty and obey the law, as relator had reasonable ground from the actions of defendant to think otherwise.

Relator could have stopped his motorcar before reaching the crossing, had he attempted to do so when he first noticed the presence of defendant. At that time the speed of the motorcar had been reduced from 15 miles to 10 or 12 miles an hour, and relator was about 100 feet from the crossing. The evidence shows that a motorcar, moving at the rate of from 10 to 12 miles an hour, can be stopped within from 40 to 60 feet.

We are not impressed with the testimony of relator to the effect that defendant approached the crossing at a speed of 25 to 30 miles an hour. Had this been the case, no accident could have possibly occurred.

Relator first observed defendant at or near the stop sign at the turn of the highway....