Howell v. Union Pacific Railroad

980 So. 2d 854, 7 La.App. 3 Cir. 1151, 2008 La. App. LEXIS 498, 2008 WL 859502
CourtLouisiana Court of Appeal
DecidedApril 2, 2008
DocketNo. 2007-1151
StatusPublished

This text of 980 So. 2d 854 (Howell v. Union Pacific Railroad) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howell v. Union Pacific Railroad, 980 So. 2d 854, 7 La.App. 3 Cir. 1151, 2008 La. App. LEXIS 498, 2008 WL 859502 (La. Ct. App. 2008).

Opinion

GLENN B. GREMILLION, Judge.

bln this case, the plaintiffs, Cade Howell, James and Lynne Howell, Dwayne and Patricia Smith, and Frederick and Jeannette Young, appeal the judgment of the trial court in favor of the defendants, Union Pacific Railroad Company, Ernest Selders, Jr., Joseph Wayne Curtis, William J. Thibodeaux, Armando Lazo, and Keir N. Nero.1 For the following reasons we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bayou Nezpique flows west of the Howell residence and Union Pacific’s railroad fine runs east and west just north of the residence. The train involved in this accident was traveling east through the town of Elton, Louisiana and then across the Barnsdale Road crossing, located approximately 6,300 feet from the Bayou Nez-pique Bridge. After crossing Barnsdale Road, the train approaches a curve. About a half mile away from the curve is the Bayou Nezpique Bridge, which is approximately one thousand feet long.

In August 2003, Cade, Owen, and Corey left a party at the Howell residence on foot to go hunting. The boys walked through the woods toward Bayou Nezpique and entered the bridge on its east side to cross the bayou. Tragically, a Union Pacific train, whose engineer was Lazo and whose conductor was Nero, struck Owen and Corey killing them. Cade was able to safely escape the bridge and was uninjured.

Un July 2004, the plaintiffs filed suit against multiple defendants urging their negligence surrounding the train, the track, and their knowledge of the surrounding area. The defendants filed a [857]*857motion for summary judgment in January 2006, which was denied. Thereafter, the defendants filed a Motion to Stay Proceedings while a writ application to-the this court was pending. We denied the writ. The defendants then filed a writ application with the supreme court, which was also denied. The defendants then filed a partial exception of no right of action urging that Cade could not claim damages for witnessing the death of his friends because he was not one of the classes of persons who may recover such damages pursuant to La.C.C. art. 2315.6. Both the plaintiffs and the defendants filed Motions in Limine pertaining to numerous evidentiary issues.

The matter was tried before a jury from January 8-19, 2007. At the close of the plaintiffs’ evidence, the defendants filed a motion for directed verdict, which was denied. At the conclusion of the trial, the jury returned a verdict finding that none of the defendants were negligent. The plaintiffs moved for a motion for judgment notwithstanding the verdict and in the alternative, for a new trial, which was denied. The plaintiffs now appeal.

ISSUES

The plaintiffs assign as error:

1. The trial court’s instructions to the jury-

2. The trial court’s denial of their motion in limine precluding the defendants use of photographs or videos, the purpose of which was to demonstrate to the jury what can be seen with the naked eye.

|?,3- The trial court’s admission of a video from a train passing through the accident scene and a video animation prepared and presented by the defendants.

4.The jury’s determination that the train crew was not negligent.

5. The jury’s determination that Union Pacific was not negligent.

6. The jury’s determination that Joseph Curtis, Ernest Selders, and William Thibodeaux were not negligent.

7. The trial court’s denial of their post-trial motions.

DISCUSSION

Jury Instructions

In their first assignment of error, the plaintiffs assert that the trial court erred in refusing to give their requested jury charges numbered 1, 4, 13, 19, and 20 and in allowing the defendants charges 1 and, 2. Louisiana Code of Civil Procedure Article 1793(C) (emphasis added) states:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

At the conclusion of the trial, the plaintiffs lodged their objections as follows:

The Plaintiffs Your Honor object on the following instructions not being given, that’s jury instruction one of the plaintiffs, jury instruction number four, jury instruction number seven, jury instruction number 13, jury instruction number 19, jury instruction number 20, and those are our objections Your Honor for the plaintiffs.
|4And regarding the defendants’ jury charges that the Court did allow, plaintiffs object to defendant’s jury charge number one, train’s crew has no duty to slow the train upon the near sighting of [858]*858an object on the track[.] It’s our position that this is a bridge and therefore that particular area of the law does not apply and that would be the same thing with jury charge number two, a train’s crew has no duty to slow or stop a train upon the sighting of an object or even a person on or near the railroad tracks ahead, the same objection Your Honor.

As pointed out by the defendants, the plaintiffs did not offer any additional information providing the specificity required of Article 1793(C) concerning the trial court’s failure to give the plaintiffs’ requested jury charges. This is simply insufficient to preserve the objection for review on appeal. See Tatum v. Old Republic Ins. Co., 94-157 (La.App. 3 Cir. 10/5/94), 643 So.2d 419, writ denied, 94-2722 (La.1/6/95), 648 So.2d 929. For that reason, this portion of the assignment is not properly before us and we will not consider it.

On the other hand, we do find that plaintiffs properly preserved their objections relating to defendants’ jury charges numbered one and two. In reviewing those jury instructions, we find the trial court did not abuse its discretion in instructing the jury as it did. In brief, the plaintiffs claimed that the instructions in question stated:

Defendants Jury Charge No. 1: A train has the right of way when traveling on railroad tracks and its crew has a legal right to operate the train within the track’s speed limit as determined by the Federal- Railroad Administration. A train’s crew has no duty to operate the train at a slower rate of speed to protect pedestrians who decide to walk on the railroad track.
Defendants Jury Charge No. 2: A train’s crew has no duty to slow or stop a train upon the sighting of an object, or even a person, on or near the railroad tracks ahead.

| ^However, the trial court apparently rejected those charges by omitting language and combining the two charges to read:

A train has a right of way when traveling on railroad tracks and its crew has a legal right to operate the train within the track’s speed limit as determined by the Federal Railroad Administration. A train’s crew has no duty to slow the train upon the mere sighting of an object on the track.

On appeal, the plaintiffs’ argument centers around the train crew’s duties upon seeing objects on a bridge portion of a railroad track.

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Bluebook (online)
980 So. 2d 854, 7 La.App. 3 Cir. 1151, 2008 La. App. LEXIS 498, 2008 WL 859502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-union-pacific-railroad-lactapp-2008.