Lincecum v. Missouri Pacific RR Co.

452 So. 2d 1182
CourtLouisiana Court of Appeal
DecidedMay 30, 1984
Docket83 CA 0635
StatusPublished
Cited by45 cases

This text of 452 So. 2d 1182 (Lincecum v. Missouri Pacific RR Co.) 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
Lincecum v. Missouri Pacific RR Co., 452 So. 2d 1182 (La. Ct. App. 1984).

Opinion

452 So.2d 1182 (1984)

Peggy Sue Walker LINCECUM
v.
MISSOURI PACIFIC RAILROAD COMPANY, et al.

No. 83 CA 0635.

Court of Appeal of Louisiana, First Circuit.

May 30, 1984.
Rehearing Denied June 29, 1984.
Writ Denied October 26, 1984.

*1185 Leonard Fuhrer and George A. Flournoy, Fuhrer & Flournoy, Alexandria, Robert L. Freeman, Freeman, Pendley & Canova, Ltd., Plaquemine, for Lincecum.

Boris F. Navratil and Murphy J. Foster, III, Breazeale, Sachse & Wilson, Baton Rouge, for Missouri Pacific R. Co.

Houston C. Gascon, III, Dist. Atty., Plaquemine, for Iberville Parish Police Jury.

Howard B. Gist, III, Gist, Methvin, Hughes & Musterman, Alexandria, for Employer's Ins. of Wausau.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

LOTTINGER, Judge.

This action involves a train-truck collision in Iberville Parish, resulting in the death of the truck driver, Robert Lincecum. The collision occurred at the crossing where Sidney Road intersects with tracks maintained *1186 by the Missouri Pacific Railroad. At the time of the accident the deceased was employed by the Sam Broussard Trucking Company.

Suit is brought by Lincecum's widow, Peggy, to recover damages resulting from Lincecum's death for herself and a minor child of the marriage to Lincecum. The defendants named in the suit include the State of Louisiana Department of Transportation and Development; Iberville Parish Police Jury; Missouri Pacific Railroad Company; and three employees of the Missouri Pacific Railroad Company: Chris J. Blythewood, Melvin Frazier and F.R. Sims.

The Broussard Trucking Company's insurer, Employer's Insurance of Wausau, intervened in the suit to recover workmen's compensation benefits paid to Lincecum's widow and child. Employer's Insurance dismissed its intervention upon reaching agreement with the plaintiffs that they would receive payment from any judgment awarded to the plaintiffs.

The Department of Transportation requested and received a summary judgment and was dismissed from the suit. The remaining defendants were tried by a jury, with the exception of the case against the Police Jury which was decided by the judge alone. The Police Jury was granted a dismissal and the trial judge also granted a motion for directed verdict in favor of the three Missouri Pacific employees.

The case against the Missouri Pacific Railroad was submitted to the jury on the alleged "dangerous" condition of the crossing. The jury awarded damages in the amount of $225,000 to the widow and $225,000 to the child. From that judgment the plaintiff and defendant appeal. In this appeal defendant asserts four (4) assignments of error, and plaintiff asserts two (2) assignments of error.

DEFENDANT'S ASSIGNMENT OF ERROR NO. 1

The defendant argues that the trial judge erred in failing to direct a verdict in its favor, La.Code Civ.P. Art. 1810, or to grant its motion for a judgment N.O.V., La.Code Civ.P. art. 1811.

Defendant asserts that there was enough evidence in the case so as not to permit reasonable minds to differ, that an ample view was afforded for the decedent to see an approaching train, and that the accident was due solely to decedent's negligence.

A trial judge has much discretion in determining whether or not to grant a motion for a directed verdict. La.Code Civ.P. art. 1810; Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3rd Cir.1979). In deciding whether or not to grant a motion for directed verdict and judgment not withstanding the verdict the court should consider all of the evidence in the light most favorable to the party opposing the motions. A court should not grant the motions unless the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable minds could not arrive at a contrary conclusion. Roberts v. St. Bernard Parish School Board, 427 So.2d 676 (La. App. 4th Cir.1983).

After a thorough review of all the facts and evidence considered in the light most favorable to the plaintiff, we find that this assignment of error is without merit. There was testimony from all the witnesses, who lived in the vicinity of the tracks on Sidney Road, to the effect that the crossing was blind to a northbound motorist. The decedent was traveling in a northerly direction when the accident occurred. There was testimony that high grass and brush over six feet tall had not been cut prior to the accident. The witnesses also described prior accidents and near-misses which they had been involved in at that crossing.

Defendant relies on the case of McFarland v. Illinois Central Railroad Company, 122 So.2d 845 (La.App. 1st Cir.1960), affirmed 241 La. 15, 127 So.2d 183 (La. 1961). In McFarland the court reasoned that the question of negligence of a defendant is a question of fact to be determined in light of the circumstances of each case. The court went on to review the dangerous *1187 trap doctrine as set forth in 44 Am.Jur. Railroads § 507.

The principle that a crossing is unusually dangerous embraces a situation where the dangerous condition results from obstructions to the view which prevents a traveler from seeing an approaching train until he is dangerously close to the track. This rule requires the railroad company to exercise caution commensurate with the situation whether it be by reducing the speed of the train, or by increasing warnings or otherwise. The rule of care applies regardless if the obstructions to the view are legitimate and necessary in conducting the business of the railroad, and is thought to be fair because it is always within the power of the railroad company to remove the source of danger which was created by its own inattention.

Defendant argues that the McFarland doctrine applies only in those crossings which are unusually dangerous because obstructions on or near the railroad right-ofway prevent a motorist from seeing an approaching train until he is on or dangerously near the track. Defendant believes that the issue of the nature of the crossing itself should not have gone to the jury because the evidence in this case does not admit that the crossing falls within the meaning of the McFarland doctrine.

We are of the opinion that the preponderance of the evidence in this case was sufficient to show there existed at the time of the accident grass, brush, trees and shrubs such as would block the view of a motorist to such an extent that he would virtually have to place himself in peril in order to get a clear view down the track.

Defendant contends that the witnesses' testimony is overcome by the fact that photographs were put into evidence by the defendant which accurately reflect the height of the grass and brush at the time of the accident. Defendant asserts that when such clear and unambiguous physical evidence is presented it cannot be supplanted by oral testimony.

The photographs that defendant presented at trial showing the layout of the railroad tracks in relationship to Sidney Road were admissible, subject to such weight the jury might accord them even though some of the pictures were taken 10 days after the accident occurred. Alleman v. State, Department of Highways, 416 So.2d 272 (La.App. 3rd Cir.1982).

The jury in this instance placed lesser weight upon the photographs than the defendant felt they should have under the case law. At trial witnesses who lived in the area and traveled Sidney Road daily had trouble recognizing the crossing depicted in the photographs as the crossing on Sidney Road.

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