Whitehead v. The Kansas City Southern Railway Company, 99-896.

• Decision Date: 22 December 1999
• Docket Number: No. 99-896.,99-896.
• Citation: 758 So.2d 211
• Parties: Kathy Gates WHITEHEAD v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

758 So.2d 211

Kathy Gates WHITEHEAD v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, et al.

No. 99-896.

Court of Appeal of Louisiana, Third Circuit.

December 22, 1999.

Writ Denied April 7, 2000.

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Henry H. Lemoine, Jr., Pineville, for Kathy Gates Whitehead.

Arthur R. Carmody, Jr., Shreveport, for Kansas City Southern Railway Co., et al.

Brian Mosley, Pineville, for Grant Parish Police Jury.

Allan Dale Smith, Colfax, Elizabeth Sheridan Hardy, Lake Charles, for Shelly Ferguson Moris.

Court composed of Judge HENRY L. YELVERTON, Judge ULYSSES GENE THIBODEAUX and Judge MICHAEL G. SULLIVAN.

THIBODEAUX, Judge.

Douglas Whitehead was killed in a collision between the eighteen wheel tractor-trailer he was driving and a Kansas City Southern Railway Company (hereinafter "KCS") train. Three lawsuits were filed as a result of the accident, alleging that KCS negligently caused the accident and injuries. After one suit was settled, the jury apportioned seventy percent of the fault to KCS and thirty percent to Mr. Whitehead. After making the appropriate deductions, the trial court awarded damages totaling $665,000 to Kathy Whitehead, the surviving spouse of Douglas Whitehead, and $21,000 to Billy and Julie Williams, d/b/a Jingle Tail Logging Company. KCS appeals. We affirm.

I. ISSUES

KCS asserts seven assignments of error on appeal:

1. The jury erred in allocating seventy percent fault to KCS and only thirty percent to Douglas Whitehead.

2. The trial court erred in permitting the introduction of evidence of the train conductor's past alcohol use.

3. The trial court erred in permitting the introduction of evidence concerning subsequent remedial measures made by KCS and in not granting a mistrial after the introduction of such evidence.

4. The jury abused its discretion in awarding $300,000 in general damages to Kathy Whitehead for loss of love and affection and for mental anguish.

5. The jury abused its discretion in awarding $650,000 to Kathy Whitehead for loss of past and future income.

6. The jury abused its discretion in awarding $30,000 in damages for loss of business to Billy and Julie Williams.

7. The trial court erred in not granting the Defendants' motion for a directed verdict at the close of the evidence.

II. FACTS

On February 5, 1997 shortly before 4:00 p.m., Mr. Whitehead was driving north on U.S. Highway 71 in an eighteen wheel tractor-trailer. The tractor-trailer was owned by Billy and Julie Williams, d/b/a Jingle Tail Logging Company, and insured by Northfield Insurance Company (hereinafter "Northfield"). Mr. Whitehead turned left from Hwy. 71 onto Union Grove Cemetery Road (hereinafter "Cemetery Road"), which is a ten foot wide gravel road. Upon completing the westward turn, he attempted to cross the train tracks which traversed Cemetery Road approximately seventy to seventy-five feet from Hwy. 71. Mr. Whitehead was killed while crossing the train tracks when the tractor-trailer he was driving was struck by a southbound KCS train.

As a result of the collision and death, Kathy Whitehead, the surviving spouse, Shelly Morris on behalf of Brandi Whitehead, the deceased's minor daughter, and the Williamses along with their insurer, Northfield, filed suits for damages against KCS, Eugene Jackson, Jr., the train conductor, and the Grant Parish Police Jury (hereinafter "the Police Jury"). Plaintiffs alleged that the Defendants negligently caused the accident by failing to provide adequate warnings of the approaching train and failing to properly maintain the sight line between the intersection and the train tracks. The trial court granted the Police Jury's motion for involuntary dismissal. The minor daughter's claim was amicably settled before trial. The consolidated suits of the remaining plaintiffs were tried to a jury which apportioned fault at thirty percent to Mr. Whitehead and seventy percent to KCS and awarded damages. KCS brought this appeal. We are also rendering judgment in the companion case on this date. See Billy Williams and Julie Williams, d/b/a Jingle Tail Logging Co. and Northfield Ins. Co., 99-987 (La. App. 3 Cir. 12/22/99); ____ So.2d ____, 1999 WL 1259558.

III.

LAW AND DISCUSSION

Standard of Review

Determinations of the existence of injuries and the causation of those injuries are factual and will not be disturbed on appeal unless they are manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). A fact finder's selection between permissible views of the evidence cannot be manifestly erroneous. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985). Appellate courts review factual determinations and the assessment of general damages for an abuse of discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). An appellate court may not reverse reasonable findings of fact by a jury even if it is convinced that it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Although deference should be accorded to the fact finder, appellate courts have a constitutional duty to review factual determinations. Daye v. General Motors Corp., 97-1653 (La.9/9/98); 720 So.2d 654.

A. NEGLIGENCE OF THE RAILROAD

In its first assignment of error, KCS alleges that the jury erred in finding it to be seventy percent at fault in causing the accident and injuries. KCS maintains that it fully performed its obligation to warn drivers of the oncoming train and that the right of way was not improperly obstructed. The railroad argues that the jury should have allocated one hundred percent fault to Mr. Whitehead.

Louisiana courts use a duty-risk analysis in negligence cases to determine whether liability exists under the facts of a particular case. "Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached." LeJeune v. Union Pac. R.R., 97-1843, p. 6 (La.4/14/98); 712 So.2d 491, 494; Syrie v. Schilhab, 96-1027, p. 4-5 (La.5/20/97), 693 So.2d 1173, 1176-77. Under the duty-risk analysis, all four inquiries must be affirmatively answered for a plaintiff to recover. Id.

Adequacy of Warnings

Crossbuck Signs. Railroads are required to put a crossbuck sign at each place where its railroad tracks intersect public roads or streets at grade crossings. La.R.S. 32:169. These signs provide a passive warning meant to protect motorists and warn them of the presence of the tracks. Corbello v. Southern Pac. Transp. Co., 586 So.2d 1383 (La.App. 3 Cir.), writ denied, 589 So.2d 1052 (La.1991); Bergeron v. Illinois Cent. Gulf R.R. Co., 402 So.2d 184 (La.App. 1 Cir.), writ denied, 404 So.2d 1260 (La.1981). We find that KCS provided the statutorily required crossbuck signs and met its duty to warn motorist of the presence of the tracks. However, this warning is not tantamount to a warning of the approaching train.

Bell, Horn & Whistle. Louisiana Revised Statutes 32:168 requires, in part, that railroad companies equip train engines with bells and whistles or horns that can be heard a distance of 300 yards under normal conditions and that either the bell be sounded continuously or the whistle or horn be blasted for at least 300 yards when approaching a crossing. The failure to comply with the statutory duty to provide audible warnings constitutes negligence. Corbello, 586 So.2d 1383. The Uniform Code of Operating Rules referred to in La.R.S. 32:168 requires that the whistle be sounded for a distance of % mile or 1,320 feet before the crossing. Testimony by KCS employees and the insurance claims adjuster established that KCS policy required train conductors to sound both the bell and the whistle when approaching a crossing.

Trains traveling over 30 mph are required to have an event recorder, the equivalent of an airplane "black box," which records various operational functions of the train. 49 CFR 229.135. The event recorder tape revealed that the horn sounded for five to six seconds immediately before impact. The train engineer and conductor testified that the whistle sounded and the bell rang before the accident. Mr. Calvert Gordon, a witness to the accident, stated that the train did not sound its whistle until just before impact.

In apportioning fault to KCS, the jury could reasonably have determined that the railroad failed to provide the proper advance warnings of the approaching train. Unless manifestly erroneous, appellate courts should not disturb reasonable inferences of fact. Rosell, 549 So.2d 840.

Obstruction of View

KCS further asserts that the jury improperly found that Mr. Whitehead's view of the approaching train was obstructed by trees in the train's right of way.

Plaintiffs introduced oral and pictorial evidence that a motorist approaching the tracks crossing Cemetery Road from Hwy. 71 would be unable to see a train approaching from the north due to the presence of trees in the train's right of way. Plaintiffs assert that had the right of way been cleared of the trees, Mr. Whitehead would have had a better chance of avoiding the collision.

Mr. William Fogarty, the accident reconstructionist for KCS, testified that Mr. Whitehead's first view of the train would have been when he was only seventy-two feet and three seconds from impact with the train.

Whether a driver's view of an approaching train is obstructed is purely factual and reviewed under the manifest error rule. Corbello, 586 So.2d 1383; Rosell, 549 So.2d 840. We find that the jury's finding was not manifestly erroneous.

B. NEGLIGENCE OF DRIVER

KCS also alleges that the jury erred in assigning only thirty percent fault to Douglas Whitehead and that Mr. Whitehead's failure to stop at the crossing and yield the...