Lejeune v. Union Pacific Railroad

693 So. 2d 804, 96 La.App. 3 Cir. 294, 1997 La. App. LEXIS 537, 1997 WL 107299
CourtLouisiana Court of Appeal
DecidedMarch 12, 1997
DocketNo. 96-294
StatusPublished
Cited by3 cases

This text of 693 So. 2d 804 (Lejeune 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
Lejeune v. Union Pacific Railroad, 693 So. 2d 804, 96 La.App. 3 Cir. 294, 1997 La. App. LEXIS 537, 1997 WL 107299 (La. Ct. App. 1997).

Opinion

LKNOLL, Judge.

This is a personal injury lawsuit brought by Stephen Lejeune, an Acadian Ambulance driver, against Union Pacific Railroad (Union Pacific) for damages resulting from an ambulance-train collision at a rural crossing. Commercial Union intervened in the suit as the worker’s compensation insurer of Acadi-an Ambulance. The jury found in favor of Union Pacific.

Lejeune and Commercial Union appeal, contending: (1) the jury was manifestly erroneous in failing to find Union Pacific liable for damages; (2) the trial judge erred in excluding a portion of a video that Lejeune and Commercial Union offered into evidence; and, (3) the trial judge erred in failing to grant a motion for new trial based on jury misconduct. We reverse and render.

RFACTS

On November 28, 1988, Lejeune and Patrick Landry, employees of Acadian Ambulance, were en route to a very serious accident between an eighteen-wheeler and an automobile, where a mother was killed and three young children were seriously injured. The mother’s surviving husband fortuitously happened upon the accident and began having chest pains. Lejeune was driving the ambulance west on Louisiana Highway 365 (La.365), a rural, two-lane road north of Crowley, Louisiana. The ambulance was traveling at approximately 65 to 70 miles per hour with its red lights flashing; the siren was turned to the on position, but the sound was not activated. Not far behind the ambulance was a state police automobile driven by Trooper James Simon who was proceeding to the same accident Lejeune and Landry had been directed.

At the same time, a Union Pacific locomotive, running long-end forward and pulling two hopper cars, was proceeding north at approximately 24 — 25 miles per hour en route from Crowley to Eunice, Louisiana. In railroad nomenclature, running long-end forward means that although the locomotive was leading the train, the cab of the locomotive (where the crew was situated) was to the rear of the locomotive, instead of the front. As a result of this configuration, the engineer, Jack Buckner, was seated on the west side of the locomotive and had no view to the east of the train. The ambulance was ap[806]*806proaching the railroad crossing from the east. Thus, Buckner never saw the ambulance.

With Buckner in the cab were the conductor, Halbert Hardy, and the brakeman, John Garret; both of these men were seated with their backs toward the front of the train and were unable to see anything outside the cab. Also in the cab were the fireman, Ernest Mitchell, and another brakeman, James Mayo. Mitchell was seated ^facing forward in the right front seat; his location allowed him to see ahead, but not to the east. Mayo was seated several feet behind Mitchell; his line of sight allowed him to see vehicles approaching from the east on La. 365.

Buckner testified that normally a whistle board, a small, white metal sign with an “X” painted on it, is erected a quarter mile (1,320 feet or 440 yards) from every crossing. The whistle board alerts the engineer that there is a crossing ahead and that he should begin blowing his horn to warn that a train is coming. Although the whistle board had been reported missing from the crossing, the sign had not been replaced at the time of the accident. In its stead, Buckner testified that he used a small trestle, located 1,775 feet from the crossing, as a landmark to remind him of the upcoming crossing and his need to sound the horn. Buckner testified that he began sounding the horn at the trestle on the day of the accident, and that he continued blowing it until he reached the crossing. This is disputed. The testimony of persons in the vicinity of the crossing differed on whether they heard a train horn. In addition, those persons in the area who did hear the horn had differing recollections of the length of time that the horn blew.

Lejeune testified that as the ambulance proceeded west on La. 365 his vision was significantly impaired by the glare of the setting sun. He further stated that he did not see the train and that he never heard the train horn blow. Trooper Simon, who was following Lejeune a short distance behind, mirrored Lejeune’s testimony.

As Lejeune entered the crossing where La. 365 intersects the Crowley-Eunice branch of the Missouri Pacifie/Union Pacific Railroad line, the ambulance struck the side of the Union Pacific engine. The ambulance, which left 131 feet of skid marks in an attempt to stop, was totally destroyed. Lejeune and Landry were both critically Linjured, and were pinned in the vehicle. Emergency personnel had to cutoff the roof of the ambulance to extricate Lejeune and Landry.

Lejeune and Landry filed separate damage suits against Union Pacific. Landry’s suit was settled prior to trial.1 Lejeune’s case and the worker’s compensation intervention of Commercial Union proceeded to trial. In a ten to two verdict,2 the jury found in favor of Union Pacific. In accordance with the jury verdict, the trial judge dismissed Le-jeune’s lawsuit and the intervention of Commercial Union. Post-verdict motions for judgment notwithstanding the verdict and new trial filed by Lejeune and Commercial Union were denied.

JURY MISCONDUCT

Lejeune and Commercial Union contend that the trial court erred in failing to grant their motion for new trial on the basis of jury misconduct. They argue two instances of misconduct.

In their first contention, Lejeune and Commercial Union point to a situation stemming from the train engineer’s testimony about his seminary experience. During trial a juror engaged the train engineer in a discussion about his time as a seminary student.

Contact between a juror and an interested party is not sufficient to require the gravity of a motion for new trial. Searle v. Travelers Ins. Co., 557 So.2d 321 (La.App. 4 Cir.1990). A new trial is mandated only on a showing that the juror’s conduct was of such a grievous nature as to preclude the impartial administration of justice. Gormley v. Grand Lodge of La., 503 So.2d 181 (La.App. 4 Cir.), writ denied, 506 So.2d 1227 (La.1987). [807]*807Furthermore, it is well settled that affidavits and other |stestimony by jurors cannot be used as evidence to impeach their verdict. La.Code Evid. art. 606; Uriegas v. Gainsco, 94-1400 (La.App. 3 Cir. 9/13/95); 663 So.2d 162; writ denied, 95-2485 (La.12/15/95); 664 So.2d 458.

In the case sub judice, Union Pacific filed a written motion to strike3 the juror’s affidavit that was submitted by Lejeune and Commercial Union in support of their post-verdict motion for new trial. This affidavit was clearly inadmissible and could not be relied upon to support this assignment of error. Id. Moreover, when the jury was polled, the juror/affiant indicated that he voted in favor of Lejeune. Thus, it is evident that the contact between the engineer and the juror did not adversely affect Lejeune and Commercial Union.

The second instance of jury misconduct was brought to the attention of the trial judge during the course of trial. In this instance, a copy of a letter to the editor written in a local newspaper was found in the jury room prior to deliberation. The article addressed excessive jury verdicts in general and related the frustrations of a prospective juror (in a trial other than the ease sub judice) with regard to the process of jury selection.

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Bluebook (online)
693 So. 2d 804, 96 La.App. 3 Cir. 294, 1997 La. App. LEXIS 537, 1997 WL 107299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lejeune-v-union-pacific-railroad-lactapp-1997.