Troxlair v. Illinois Cent. R. Co.

• Decision Date: 06 February 1974
• Docket Number: No. 5616,5616
• Citation: Troxlair v. Illinois Cent. R. Co., 291 So.2d 797 (La. App. 1974)
• Parties: Eva Mae TROXLAIR, for herself and for and on behalf of her minor son, Harry A. Troxlair, Jr., et al. v. ILLINOIS CENTRAL RAILROAD COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 797

291 So.2d 797

Eva Mae TROXLAIR, for herself and for and on behalf of her minor son, Harry A. Troxlair, Jr., et al. v.ILLINOIS CENTRAL RAILROAD COMPANY.

No. 5616.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 6, 1974.

Rehearing Denied April 9, 1974.

Writ Refused May 31, 1974.

Joseph Accardo, Jr., Chaisson & Accardo, for Eva Mae Troxlair, and others, plaintiffs-appellants.

H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, for Ill. Central Railroad Co., defendant-appellee.

Before GULOTTA and BOUTALL, JJ., and WICKER, J. Pro Tem.

BOUTALL, Judge.

The surviving spouse and children of a motorist brought this suit for damages for his wrongful death as a result of his automobile being struck by a railroad train at a crossing near Frenier, St. John the Baptist Parish.Jury trial was had and the jury returned a verdict finding the defendant railroad guilty of negligence and the decedent guilty of contributory negligence.The resulting judgment dismissed plaintiffs' suit and plaintiffs have taken this appeal.We affirm.

The appellants have assigned two errors and these are the only issues before us:

1.The jury erred in finding Harry Troxlair contributorily negligent.

2.The court erred in failing to adequately instruct the jury on the law of 'dangerous trap', 'last clear chance' and 'proximate cause'.

The appellee argues to us that we should consider there was error in the jury verdict finding defendant guilty of negligence, but in view of our holding, we find it unnecessary to do so.

ISSUE OF CONTRIBUTORY NEGLIGENCE

The facts are as follows.On the morning of August 1, 1969, Harry Troxlair, a deputy sheriff of St. John the Baptist Parish, drove his sheriff's car to an area called Frenier, on Lake Pontchartrain, a short distance from La Place, Louisiana.In doing so, he crossed the Illinois Central Railroad main line track and one siding immediately adjacent to each other.While near the lake he stopped and talked with an acquaintance, Frank W. Beadle, who was crabbing in the area.In the interim a freight train heading north began passing the crossing and stopped on the siding blocking the Frenier road.The road is a narrow, gravelled road leading off the main highway through the swamp to the lakeshore at Frenier and carries little traffic.Troxlair decided to leave the area, drover to the crossing and found that the freight train had the crossing blacked.He attempted to search the area to determine if there was another way out because there was another gravel road in the vicinity which crossed the tracks, but was unable to discover another way out and returned to the Frenier crossing and parked his vehicle to await the moving of the freight train.While his police vehicle was parked across the lakeside set of tracks, which happened to be the main track, the southbound Panama Limited passenger train was operating on those main line tracks and ran into Troxlair's vehicle, killing him instantly.

Our Supreme Court in the case of Odom v. Hooper, La., 273 So.2d 510(1973) has stated that each case presenting the issue of a train-car collision should be tried on its own facts and circumstances, and the negligence vel non of the railroad and the contributory negligence vel non of the automobile driver are matters of factual determination to be followed by the application of proper law.The arbiter of the fact of contributory negligence is the jury.Mediamolle v. Texas & New Orleans Railroad Co., 169 So.2d 235(La.App.4th Cir.1964).Findings of fact made by the jury and the verdict of the jury should not be disturbed on appeal unless there is a showing of manifest error. 20th Century-Fox Distributing Corporation v. Lakeside Theatres Inc., 267 So.2d 225, (La.App.4th Cir.1972);Barrois v. Service Drayage Company, 250 So.2d 135, (La.App.4th Cir.1971).

The evidence presented in this case consists of 420 pages of testimony produced from a number of witnesses presented by both parties, as well as numerous photographs and exhibits.It is obvious that a very thorough and far reaching investigation into the facts and circumstances surrounding this case was made by the parties, and we are impressed by the details presented to the jury.Based upon this evidence the jury answered certain specific interrogatories as follows: 'Was Harry Troxlair contributorily negligent?'Answer, 'Yes.''If so, was this negligence a proximate cause of the accident?'Answer, 'Yes.'It is our opinion that a fair evaluation of the evidence produced supports these findings.

The testimony of Mr. Beadle, a long time acquaintance of the decedent, shows that the decedent was stopped at the railroad crossing for some time awaiting the clearing of the crossing by the stopped freight train.(The freight train was parked there from 20 to 25 minutes before the accident according to all estimates.)Beadle could see the dome of the police car up at the top of the railroad incline, although he could not tell precisely the location of the vehicle.After 10 minutes or so decedent began to blow his siren, apparently in an effort to attract attention of the train crew in order to have the crossing cleared, and since he had his airconditioner working when he talked to Beadle minutes before, it may be presumed that his windows were still shut.In any event Mr. Beadle testified that after the decedent began blowing the police siren he heard the train whistle and the other noises made by the approaching train, and then the crash occurred.The fact that the decedent was indeed parked across the main line track is shown by the testimony of both the engineer and the fireman of the Panama Limited, who testified that as the crossing came into view, a distance of approximately 1/4 of a mile away, the vehicle was parked upon the track and stayed there until the collision.The evidence affords no other conclusion than the fact that the decedent pulled his police car up onto the other track in order to attract the attention of the crew of the parked freight train, and because of his attempts to draw attention to himself, the decedent did not observe the approaching train in time to remove himself from the track.

Nevertheless, appellants urge to us that the negligence of the decedent is absolved by the application of the doctrine of 'last clear chance', or the doctrine of 'dangerous trap'.We do not believe the evidence presented in this case supports the application of either doctrine, but we will discuss each in turn.

In connection with the doctrine of last clear chance we have stated in the case of Gibson v. Kansas City Southern Railroad Company, 233 So.2d 26(La.App.4th Cir., 1970) the following:

'In order to recover under the last clear chance doctrine the plaintiff bears the burden of proving: (1) that plaintiff was in a position of peril of which he was unaware, or from which he was unable to extricate himself; (2) that the defendant actually discovered, or was in a position where he should have discovered plaintiff's peril; and (3) that at the time defendant could have, through the exercise of reasonable care; avoided the accident.Faulkner v. Malloy, La.App., 203 So.2d 100(2nd Cir.1967);Ballard v. Piehler, La.App., 98 So.2d 273(1st Cir.1957).'

The evidence shows that the railroad tracks in this area form a long, slight curve, such that the presence of an automobile on the crossing becomes apparent at a distance of some 1500 feet away.This is a rural area, and the railroad tracks traverse the swamp land between Manchac and Kenner, Louisiana.The railroad has imposed a speed limit of 79 miles per hour on its trains in this vicinity, and the evidence discloses that the train was making this speed or several miles less.At the time of the accident, the area in the vicinity of the crossing was grown up with high weeds.

The evidence discloses that the train engineer did all that he could to avoid the collision.He saw the vehicle as soon as it was possible to do so.He blew his whistle numerous times, and the oscillating headlight on the front of the train was in operation.He applied the emergency brakes as soon as the danger was apparent.What he could not do was timely stop the train within the space allotted under the circumstances.At a speed of 79 miles per hour the Panama Limited as then composed would require a distance of 4074 feet to bring the train to a stop.By measurement, the distance at which...