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

• Decision Date: 30 March 1964
• Docket Number: No. 46863,46863
• Citation: 163 So.2d 65,245 La. 1099
• Parties: Elmer L. WHEAT and Cleve T. Smith v. NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY et al.
• Court: Louisiana Supreme Court

Page 65

163 So.2d 65

245 La. 1099

Elmer L. WHEAT and Cleve T. Smith v. NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY et al.

No. 46863.

Supreme Court of Louisiana.

March 30, 1964.

Rehearing Denied May 4, 1964.

H. Alva Brumfield, Sylvia Roberts, Baton Rouge, for plaintiff-relators.

Monroe & Lemann, Malcolm L. Monroe, New Orleans, Benj. W. Miller, Bogalusa, Walter J. Suthon, Jr., Benj. R. Slater, Jr., New Orleans, for defendants- respondents.

HAWTHORNE, Justice.

Plaintiff-relator Elmer L. Wheat instituted suit to recover for personal injuries allegedly sustained as a result of a collision of a passenger train and an automobile which he was driving. Plaintiff-relator Cleve T. Smith, owner of the car, in a separate suit seeks judgment for the value of the automobile, which was completely demolished in the collision. Various parties were named defendants, but both suits were dismissed by plaintiffs as to all parties defendant except New Orleans & Northeastern Railroad Company and General Motors Corporation. The two suits were consolidated for trial in the district court, and for argument in the Court of Appeal and in this court. The district court rendered judgments dismissing both suits, and the Court of Appeal affirmed. See Smith v. New Orleans & Northeastern Railroad Co., 153 So.2d 533, and Wheat v. New Orleans & Northeastern Railroad Co., 153 So.2d 543. On application of plaintiffs this court granted certiorari, 244 La. 1018, 156 So.2d 225, for the limited purpose of reviewing the holding of the Court of Appeal that plaintiffs had failed to prove any negligence on the part of the railroad.¹

Plaintiffs in their petitions alleged numerous acts of negligence by the railroad, such as failure to ring the bell, blow the whistle, and sound the horn; failure of those operating the train to keep a proper lookout; operating the train at an excessive speed, and failure to maintain the crossing where the collision occurred in a safe condition. Both the district court and the Court of Appeal concluded, and we think correctly, that the plaintiffs had failed to prove the railroad negligent in any of these respects. The plaintiffs also alleged that the defendant's employees were negligent in failing to bring the train to a stop after the presence of the car on the track was discovered. Both courts below concluded that plaintiffs had likewise failed to prove this allegation of negligence. It was to consider this last allegation of negligence that we granted certiorari.

The facts concerned in the accident are set out in detail in the Court of Appeal's opinion. Briefly, they are: The automobile driven by plaintiff Wheat, who was alone in it, stalled on the track at a country crossing of the defendant railroad and a gravel road, and his efforts to start the car were unsuccessful. The car was struck by a passenger train consisting of an engine and six cars operated by the befendant railroad, and was completely demolished. The collision happened on a clear night, the crossing where it occurred was in open country, and the railroad both north and south of this crossing was perfectly straight. The car's lights were not on. The train was equipped with two headlights, one stationary and one oscillating, and both were burning. The bell of the train was being operated automatically, and whistle warnings were given from the time the car was sighted up to the moment of impact. Wheat testified that before he drove onto the crossing, he stopped and looked but did not see the train; that he proceeded onto the crossing, where the motor of the car stopped or failed; that he tried repeatedly to get the car started; that he was unaware of the approaching train until it was approximately two feet from the automobile;² that he reached for the door handle in an effort to 'bail out', and that this was the last thing he remembered. As stated previously, the car was completely demolished, and in fact was shoved along the track for a distance of approximately 175 feet. The passenger train was being operated at a legal speed, about 55 or 60 miles per hour, and the engineer and the fireman saw the car on the track at the extreme range of the train's headlights, about 900 or 1000 feet from the crossing. At approximately 600 to 700 feet from the crossing the engineer applied the brakes with heavy pressure, but the train nevertheless struck the stalled vehicle and came to a stop with the rear car about 900 feet beyond the crossing.

The railroad denies that it was in any way negligent. In addition, it contends that plaintiff Wheat was not in the automobile at the time it was struck, relying on the testimony of its fireman that no one was in the car, that immediately before the collision he saw someone making an effort to push the car off the track, and that this person ran away from the automobile just before the car was hit by the train.³ In support of this testimony defendant calls attention to the testimony of the physician who examined Wheat on the night of the accident, who stated that Wheat had sustained no broken bones, cuts, or lacerations, that there were no bruises on his body, that he was fully conscious, and that his only complaint was that he had a stiff or rigid neck. The railroad argues that due to the terrific impact of the train with the car, if Wheat had been in the car, he would have sustained substantial and severe physical injuries. However, in view of our holding in this case it is not necessary to discuss this contention of the railroad with regard to plaintiff Wheat.

Our determination of whether the defendant railroad was negligent requires that we define the duty of the defendant's engineer under the facts and circumstances of this case, and the standard of care owed to the plaintiffs.

Our first inquiry is: When should the engineer have realized that an accident was imminent, and have commenced taking steps to avoid the accident?

It is plaintiffs-relators' contention that the engineer was negligent in not taking steps to stop the train the first moment he saw the automobile on the track. As stated previously, the automobile was first visible to the engineer when it was picked up by the beam of the train's headlights 900 to 1000 feet from the crossing. We do not think that at this point the engineer was under any duty to make an effort to stop the train, or that the standard of care required it. The engineer gave his reason for not applying the brakes at the moment the car first became visible to him, thus: 'All right, now then, you're the engineer on one of these diesel trains and these automobiles drive up on these crossings, if I were to apply the brakes every time I saw an automobile come up on the trussle, I would have to apply the brakes at practically every trussle. In my judgment, I watch them, and if they can get across there, there's no danger, and which they do. They go up there and you swear they're not gonna get across, but they do.'

The reasonable rule in such a case is that the engineer when sighting a person or a vehicle on the track can presume that he or it will move from the position of danger upon the sounding of the train's bell or the blowing of its whistle or horn; that it is only when the engineer realizes that the warnings are not going to be heeded that he should make an effort to stop the train. This rule is recognized and approved throughout the country. For instance, a New York case states the rule thus:

'* * * a locomotive engineer, seeing a person on the track at a time when his train is perfectly visible, May assume that such person will leave the track in time to escape injury, and, Without imputation of negligence, may continue his run until he discovers that the person is heedless of danger. * * *' Fierro v. New York Cent. R. Co., 256 N.Y. 446, 176 N.E. 834. (Italics here and elsewhere are ours.)

This rule applies not only to persons but also to automobiles on the tracks, as shown by the following quotations:

'* * * The operatives of the train had a right to Presume that Beatty would drive his automobile off the track and avert a collision, and only when it became evident that he was not going to do so did it become their duty * * * to stop the train.' Beatty v. Thompson, 176 S.W.2d 795 (Tex.Civ.App.).

'Although the engineer was required to be reasonably alert and watchful as the train approached the crossing, It was not his duty to stop the train the instant he became aware that an automobile was partially across its track * * *. He was not required to act until the peril first became apparent.' Rutkowski v. Lehigh Valley R. Co., 247 App.Div. 575, 288 N.Y.S. 194.

Relators point out that the headlights of this car were not on, and argue that this should have made the engineer realize immediately that the vehicle must have been on the track for some moments and thus should have pointed unmistakably to the motorist's peril.

The condition of a car on the track can be such as to cause the engineer to realize immediately that an accident is going to happen if he does not take steps to avoid it. In Lee v. Pennsylvania R. Co., 269 N.Y. 53, 198 N.E. 629, for instance, the car was overturned on the track; and this fact would take it out of the ordinary rule, said the New York court, because the object would necessarily remain where it was located until removed.

The absence of carlights, however, would not bring this kind of immediate realization that the car would have to be removed from the track. The relators are asking the court to judge the engineer's reaction by hindsight: We now know that the automobile was stalled, and by the fact that the headlights were not burning we are asked to say that the engineer should have immediately realized the car's helpless condition at the time. What was said in Lawrence v. Bamberger Railroad Company, 3 Utah 2d 247, 282 P.2d 335, would appear to be appropriate here:

'* * * It is indeed possible that if the motorman had been a person of...