Wyatt v. Yazoo & Miss. Valley R. R. Co.

• Decision Date: 14 April 1930
• Docket Number: 585
• Citation: 13 La. App. 632,127 So. 479
• Parties: WYATT ET AL. v. YAZOO & MISS. VALLEY R. R. CO. ET AL
• Court: Court of Appeal of Louisiana — District of US

127 So. 479

13 La. App. 632

WYATT ET AL. v. YAZOO & MISS. VALLEY R. R. CO. ET AL

No. 585

Court of Appeals of Louisiana, First Circuit

April 14, 1930

Rehearing Refused May 6, 1930.

Writ of Certiorari and Review Refused by Supreme Court July 2, 1930.

Appeal from the District Court, Parish of East Baton Rouge. Hon. W C. Jones, Judge.

Action by Florence E. Wyatt et al. against Yazoo & Mississippi Valley Railroad Company and Hammond & Eastern Railroad Company.

There was judgment for defendants and plaintiffs appealed.

Judgment affirmed.

Shelby Taylor and A. B. Parker, of Baton Rouge, attorneys for plaintiffs, appellants.

Breazeale & Sachse, of Baton Rouge, attorneys for defendants appellees.

OPINION

ELLIOTT, J.

Yazoo & Mississippi Valley Railroad Company and Baton Rouge, Hammond & Eastern Railroad Company are sued in solido by Jesse E. Wyatt, Sr., and Mrs. Florence E. Wyatt for $ 15,000 in damages on account of the death of their son, Jesse E. Wyatt, Jr. They allege that Yazoo & Mississippi Valley Railroad cooperates the Baton Rouge, Hammond & Eastern Railroad under a lease. That their son was struck and killed on the public crossing at Sharps Station on said Baton Rouge, Hammond & Eastern Railroad by a train operated thereon by said Yazoo & Misissippi Valley Railroad Company. That their son lost his life as a result of the carelessness, negligence, and recklessness of Yazoo & Mississippi Valley Railroad Company. That the view eastward along the main line of the said Baton Rouge, Hammond & Eastern Railroad at Sharps Station was permitted by said Yazoo & Mississippi Valley Railroad Company to become obstructed. That it operated its trains thereover at excessive speed without taking the precautions made necessary as a result of the obstructed view, which it had permitted. That its agents and employees in charge of the train which killed their son did not give signals of its approach, etc. That it permitted the placing of gravel cars on the western side of the highway, still further hampering and obstructing the view. That it should have slowed down its trains, or else placed a flagman at the crossing, etc.

The motions and exceptions interposed against plaintiffs' demand are not urged in defendants' brief. We assume that they have been abandoned, and have not given them any consideration in acting on the case.

The defendants both deny the negligence, carelessness, recklessness, and fault alleged against them by the plaintiffs.

The Baton Rouge, Hammond & Eastern specially alleges in its answer that it is not liable to plaintiffs for the further reason that it had nothing to do with the operation of the train in question, nor with any of the other matters complained of in their petition. Both railroads deny that they were negligent in any way, but, if so, they urge in the alternative that decedent was also negligent and that his negligence contributed to, and, in fact, brought on the accident whereby he was killed.

There was judgment rejecting plaintiffs' demand, and they have appealed.

The accident occurred about 4 o'clock p. m., on April 29, 1926. Jesse E. Wyatt, the decedent, was employed at the time as a truck driver by Sam E. Finley, contractor, engaged in repairing the Baton Rouge and Hammond Highway. The asphalt used in this work was prepared in a mixing plant erected and operated at said station by said Finley. The railroad is crossed at this place by a public road running northward and southward known as Sharps road. This road connects in its southward course with the Baton Rouge and Hammond road, and was used for the purpose of conveying asphalt from said mixing plant to the said road being repaired. The mixing plant was situated on the northern side of the railroad, about 75 feet north of the railroad main line, and about 150 feet east of the public road. There were other smaller structures shown on a diagram filed in evidence. These other structures were all erected there by said contractor, and were being used at the time in question in connection with his mixing plant; they were distant about 40 feet from the main line of the railroad, and situated in between the mixing plant and the public road. The evidence does not enable us to determine their exact distance from the crossing.

There was, in addition, at the time, piles of coal, sand, and gravel on the right of way just south of the mixing plant, but not high enough, in our opinion, to obstruct the view eastward of a man in an automobile from the crossing along the main line track. All these structures erected by Finley were situated north of the side track hereinafter mentioned. Two witnesses testified without contradiction that the mixing plant and other structures erected by Finley were all on defendants' right of way. A side track runs parallel to the main line of the railroad east and west of the crossing. This side track is on the north side of the main line, distant from it about ten feet. Two gravel cars were spotted on the side track west of the crossing; one of them projected a couple of feet over the crossing, but they are not alleged to have obstructed the view eastward, and did not, so we do not give them any further notice. Two cars, a box car and a coal car, were also spotted on the side track at the time in question, on the east side of the crossing. The box car was next to the crossing, the coal car was further east and about opposite the railroad platform. The distance of these cars from the crossing was variously estimated. Two witnesses testified that the box car was right up even with it, others thought that the one nearest to the crossing was 5 or 6 feet distant from it, others that the nearest one was 15 or 20 feet distant, while still another testified that the nearest car was 75 or 80 feet distant from the crossing. Some of the witnesses who estimated these distances were not present at the time of the accident. Acting on the estimates of those present, we find that the box car was 5 or 6 feet east of the crossing, and that the coal car was still further east. The asphalt mixing plant was operated by steam power, the smoke from which sometimes drifted over the railroad, and at other times it did not. One witness testified that there was smoke over the railroad at the time of the accident in question, another did not notice any smoke, still another did not think there was any over the railroad at the time. There was a platform which had been erected by the railroad company on the north side of the side track, situated up close to it. At the time in question, there was on top of this platform several tanks, barrels, etc. These structures, on the right of way railroad platform, with things on top of it, cars on the side track, obstructed the view eastward along the main line very seriously, as the crossing was approached going south until the side track was passed, after which it was unobstructed. The crossing was certainly dangerous for those approaching it going south, due to the obstructed view eastward.

The train that struck plaintiffs' son came from the east, and was going west. Plaintiffs' son, at the time in question, after obtaining his load at the mixing plant, first faced westward, but curved southwest as he proceeded toward the public road. While going west, his back was turned in the direction from which came the train that killed him. His truck entered the public road about 150 feet from the mixing plant, and about 10 or 15 feet north of the crossing. The Louisiana Stop Law sign, on the north side of the crossing, was about 50 feet distant from it. His truck, leaving the mixing plant, passed to the left and south of this Stop Law sign. After reaching the public road, his truck turned south in the road toward the crossing. There was another Stop Law sign on the south side of the crossing, about 50 feet distant from it. There are no houses at Sharps Station, except a country store. It is not clear from the evidence whether there was one or two stores on the road side near the crossing. The evidence indicates but one residence in the neighborhood, that of Mr. Cook, and it was several hundred yards distant.

All people are charged with knowledge of the ordinary crossing dangers, and on coming thereto should look over, around, and beyond nearby cars on a side track for approaching trains, and may not expect the train to slacken its schedule speed of 30 or 35 miles at such a place. The railroad company, on the occasion in question, sounded its engine whistle and rang its bell on approaching this crossing, at a proper distance therefrom, and ordinarily that would have been sufficient.

But as the railroad company had permitted the erection of structures on its right of way near the crossing that obstructed the view and hindered the seeing of approaching trains, and had permitted to be increased the ordinary crossing risks at this place, it should have taken more than ordinary care. It should have slowed down its train and done what was reasonably necessary to offset the increased danger. The situation did not require that the railroad company send a guard or watchman to this crossing before going over it with a train, as plaintiffs contend, but the railroad company did nothing to offset the increased danger due to the obstructions placed there by Finley.

The railroad company, its agents and authorities, through whom it acts, must be charged with knowing the increased danger, with knowing the use to which the crossing was subjected, due to the mixing plant. The defendant operating the train in question would be held responsible for the death of plaintiffs' son were it not that their averment that plaintiffs' son was also negligent and that his negligence contributed to the accident, was established. It was, in...