Ward v. La. & Ark. Ry. Co.

• Decision Date: 30 April 1984
• Docket Number: No. 16238-CA,16238-CA
• Citation: 451 So.2d 597
• Court: Court of Appeal of Louisiana — District of US
• Parties: Dorothy WARD, et al., Appellees v. LA. & ARK. RAILWAY CO., et al., Appellants. 451 So.2d 597

Page 597

451 So.2d 597

Dorothy WARD, et al., Appellees v. LA. & ARK. RAILWAY CO., et al., Appellants.

No. 16238-CA.

451 So.2d 597

Court of Appeal of Louisiana, Second Circuit.

April 30, 1984.

Wilkinson & Carmody by Arthur R. Carmody, Jr., Shreveport, for appellants, The Kansas City Southern Ry. Co., Louisiana & Arkansas Ry. Co., Jack R. Smith and O.L. Matlock.

Malcolm Wallace, in pro. per.

James R. Dawson, James W. Graves, and William T. Allison, Shreveport, for appellees, Dorothy Ward, Gordon C. Ward and Sandra L. Ward.

Before MARVIN, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

The Kansas City Southern Railway Company, it's wholly owned subsidiary Louisiana & Arkansas Railway Company, Jack R. Smith and O.L. Matlock, defendants, appeal a judgment against them for damages as a result of personal injuries sustained by Sandra L. Ward in an automobile-train collision. We affirm.

The judgment awarded Dorothy and Gordon C. Ward, who are the parents of Sandra, the sum of $27,109.68 for medical expenses incurred in the treatment of Sandra's injuries from the date of the accident until Sandra's eighteenth birthday. The judgment awarded Sandra $522,776.00 included future medical expenses, loss of earning capacity, and general damages.

The train involved in the accident was owned and operated by L & A Railway Company. Defendant, Jack R. Smith, was the train's engineer and defendant O.L. Matlock was the train's conductor.

FACTS

The accident occurred at a railroad crossing on Shed Road in Bossier City at approximately 9:00 p.m. on the night of February 16, 1981. It was a cold clear evening. Sandra was riding in the front passenger seat of a Chevrolet Vega driven southerly by 15 year old Kelly Wallace. ¹ Kelly was an unlicensed driver. Her older sister Tracy, a licensed driver, was riding in the back seat of the car. The car's windows were rolled up and the radio and heater were on.

Kelly neither saw nor heard the approaching eastbound freight train as she approached the crossing. She was traveling 25-30 miles per hour and did not slow down before entering the crossing. Before the Vega cleared the tracks, it was struck by the train which was traveling at 30 miles per hour. The Vega came to rest 32 feet from the point of impact.

The train was on a regularly scheduled run from Shreveport to Minden. Smith and Matlock were both in the lead engine unit of the 3 engine 40 car train. Matlock first noticed the Vega when both it and the train were approximately a quarter of a mile from the crossing. Smith noticed the Vega when it and the train were approximately 100-150 yards from the crossing. Both men testified the Vega appeared to be going a reasonable rate of speed and there was no indication it would not stop for the crossing. Matlock was the first to notice the Vega was not going to stop. He made this determination about 50-100 feet from the crossing. He yelled to Smith and Smith threw the train into emergency stop immediately before the collision. The train stopped 640 feet from the point of impact.

This crossing is within the city limits of Bossier City and has been since the general area surrounding it was annexed by the city in 1973. The city did not formally notify the railroad the area was annexed. There were no city limit markers along the tracks.

The crossing was marked by two Louisiana Highway Department railroad crossing signs placed along Shed Road on both sides of the crossing. The only other warning devices in the area were the standard "crossbuck" railroad signs immediately adjacent to and on both sides of the crossing. There were no flashing lights or movable barriers.

At the time of the accident the Bossier City Code contained a train speed limit ordinance. ² At the Shed Road crossing which had no flashing lights, bells or movable barriers, the speed limit for trains is 5 miles per hour unless there is a flagman or watchman at the crossing. If there is a flagman or watchman or the crossing is marked by lights, bells or movable barriers, the speed limit is 15 miles per hour. There was no railroad flagman at the Shed Road crossing on the night of the accident. Therefore, the train's speed limit was 5 m.p.h. ³ There was a further train speed limitation contained in the railroad company's special instructions to its employees included in the railroad timetable which established a maximum speed of 10 miles per hour on trains operating within the Bossier City limits.

The plaintiffs contend the train's crew was not sounding its whistle prior to arriving at the crossing. Kelly Wallace and the drivers of two other vehicles in the immediate vicinity at the time of the accident testified they heard no whistle. Smith and Matlock testified the whistle was being prudently blown. Two employees of a nearby business corroborated their story. The trial court found that the whistle was being blown. This finding is supported by substantial evidence and is correct.

Plaintiff also contends that vegetation along the track in the area of the crossing obscured Kelly's view of the track. There was substantial evidence to the contrary and the trial judge held the view of the crossing was not obstructed. We conclude this factual determination was not clearly wrong.

Liability was imposed upon the railroad and its employees for the train's violation of the speed limits contained in the Bossier City ordinance and the railroad's special instructions.

The appellants assign as error:

(1) the trial judge's finding that the train's speed of 30 m.p.h. was negligence which was the proximate cause of the accident; and

(2) the trial judge's determination that the 10 m.p.h. railroad Bossier City speed limitation and the 5 m.p.h. City Ordinance speed limitation was applicable to Shed Road when the railroad was never formally advised that the Shed Road crossing was in the city limits and these speed limitations had never been enforced.

LIABILITY

The duty/risk analysis as contained in Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); and LeBlanc v. State, 419 So.2d 853 (La.1982), is applicable for the purpose of determining the appellant's liability to the plaintiffs as a result of their violation of the Bossier City speed ordinance and the railroad's own speed limitation contained in its special instructions. The appellants' duty is defined by the ordinance and the special instructions. The breach of that duty, however, does not equal liability unless: (1) the risk encountered by Sandra (she would be injured in a railroad crossing accident while riding as a guest passenger in a motor vehicle) is meant to be protected against by the duty; and (2) the breach of the duty was a cause in fact of the accident.

Appellants argue: (1) there was no duty for trains to be operated within the speed limits contained in the ordinance and special instructions; (2) the risk Sandra encountered was not covered by the duty, if there was one; and (3) the operation of the train in excess of the 5 and 10 m.p.h. speed limits was not the legal cause of the accident.

DUTY-RISK

The ordinance and the special instructions impose the duty upon the train crew to operate the train at a speed not in excess of the speed limits there provided.

Although not always discussed in the terms of duty-risk, the jurisprudence recognizes that the risk of being injured as an occupant of a motor vehicle involved in a railroad crossing accident is a risk that the duty to comply with train speed regulations was intended to protect against. See Martin v. Yazoo & M.R. Co., 181 So. 571 (La.App. 2d Cir.1938); Levy v. New Orleans & Northeastern R. Co., 20 So.2d 559 (La.App. Orleans 1945); Jenkins v. St. Paul Fire &amp Marine Ins. Co., 393 So.2d 851 (La.App. 2d Cir.1981); Fisher v. Walters, 428 So.2d 431 (La.1983); Ketcher v. Illinois Central Gulf R. Co., 440 So.2d 805 (La.App. 1st Cir.1983).

Appellants contend they had no duty under the ordinance or their special speed instructions because they were unaware the Shed Road crossing was in the Bossier City limits as the city never notified the railroad the area containing the Shed Road crossing had been annexed. The trial court correctly rejected this argument on the grounds the railroad had actual knowledge the crossing was in the city limits. Approximately one year before the accident the railroad contacted the city and requested it to close off traffic on Shed Road in the area near the crossing to facilitate railroad crossing repairs. If the railroad had not known the crossing was in the city it would have contacted the state or parish to secure the rerouting of traffic to permit crossing repairs. There would have been no reason to contact the city.

Appellants argue the railroad's action in contacting the city on this occasion was legally insufficient to impute it with actual knowledge. We disagree. The railroad had knowledge that the city had to be contacted in order to have traffic routed around the crossing. This establishes the railroad knew the crossing was in the city and the railroad's argument to the contrary has no merit.

Appellants next contend the ordinance was inapplicable, and imposed no duty, because it was enacted over 40 years ago, has never been enforced, and imposes an unreasonable speed limit on trains operating at or near the Shed Road crossing.

The record does not establish when the speed ordinance was initially passed but the copy of the speed limit provision contained in the record reflects that it was incorporated in the Bossier City Code of 1964. The special instructions contained in the record where the railroad imposed upon its trains in Bossier City a speed limit of 10 m.p.h. also contains no indication as to when it was first adopted. The railroad timetable contained in the record which includes this speed limitation specifically provides that it is effective "12:01 a.m....