Richard v. Missouri Pacific RR Co.

536 So. 2d 755, 1988 WL 133885
CourtLouisiana Court of Appeal
DecidedDecember 14, 1988
Docket87-1114
StatusPublished
Cited by3 cases

This text of 536 So. 2d 755 (Richard 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
Richard v. Missouri Pacific RR Co., 536 So. 2d 755, 1988 WL 133885 (La. Ct. App. 1988).

Opinion

536 So.2d 755 (1988)

Cynthia Fontenot RICHARD, et al, Plaintiffs-Appellants,
v.
MISSOURI PACIFIC RAILROAD CO., et al., Defendants-Appellees.

No. 87-1114.

Court of Appeal of Louisiana, Third Circuit.

December 14, 1988.

*756 Morrow & Morrow, Patrick Morrow, Opelousas, for plaintiff-appellant, Celeste.

Guy Mitchell, Rick Albright, Ville Platte, for plaintiff-appellant, Cynthia.

Rozas, Manuel & McGee, A. Bruce Rozas, Mamou, Dubuisson & Dubuisson, Edward B. Dubuisson, Opelousas, for defendants-appellees.

Before STOKER, LABORDE and KING, JJ.

LABORDE, Judge.

Decedent, Kent Richard, was killed in a motorcycle/train collision. Richard's first wife filed suit on behalf of the two minor children born of that marriage. His second wife also filed suit on her behalf and on behalf of their minor son. Made defendants were Missouri Pacific Railroad (Missouri Pacific), Evangeline Parish Police Jury (Evangeline Parish), and the State of Louisiana through the Department of Transportation and Development (DOTD). The two suits were consolidated at trial and remain consolidated on appeal.[1] The plaintiffs asserted that Richard's death was caused by the negligence of all of the defendants in maintaining a dangerous railroad crossing. After a trial on the merits the trial court found that Richard's own fault was the sole cause of the accident and that none of the defendants were negligent. Plaintiffs were thus denied any recovery. All plaintiffs now appeal. We affirm.

FACTS

The facts of this case, as reproduced from the trial court's "Reasons for Judgment", are as follows:

"This is a suit in tort where the plaintiffs are seeking damages for wrongful death of Kent Richard as a result of a motorcycle train accident that occurred on April 11, 1983, in Evangeline Parish, on Parish Road 8-110, at approximately 12:30 P.M. The condition of the weather was a bright sunny day and the road was an asphalt hardsurface [sic] road.
The plaintiffs are Kent Richard's widow, Celeste Arlene M. Richard, individually and on behalf of her minor son, Kagen Brent Richard. Another plaintiff is Cynthia Fontenot Richard, on behalf of the minors Crystal Robin Richard and Kaleb Brian Richard. Cynthia Fontenot Richard was the deceased's first wife and of this marriage, Crystal Robin Richard and Kaleb Brian Richard were born.
The defendants in this case are the Missouri Pacific Railroad Company, the State of Louisiana, and the Parish of Evangeline.
The Evangeline Parish Road 8-110 leaves Chataignier Road in the City of Ville Platte, and proceeds east for several hundred feet and curves to the left going north before crossing the Missouri Pacific Railroad tracks. The road runs relatively straight for approximately 275 feet before it crosses the Missouri Pacific Railroad tracks. The road was designed and constructed by the State of Louisiana for the Police Jury, and was completed *757 on or about the 24th day of November, 1974, approximately 9 years before this accident.
The deceased, Kent Richard, was traveling east on the Parish Road 8-110 in the direction of the railroad crossing, and the locomotive and train belonging to the Missouri Pacific Railroad Company was traveling west from Opelousas to Ville Platte. The train was going approximately 20 miles per hour and slowing down for the intersection and the City of Ville Platte. The train was sounding its whistle before arriving at the intersection.
The deceased, Kent Richard, had a .2% alcohol reading as a result of a blood test performed after his death.
The evidence shows that the motorcycle, upon approaching the railroad tracks went into a skid, and was struck by the locomotive. Kent Richard was thrown on the north side of the tracks, which would mean he was almost across the tracks in a skidding position when he was struck by the locomotive and thrown to the opposite side from which he was approaching the tracks. Mr. Richard was apparently killed instantly."

On appeal plaintiffs contend that the trial court erred in finding that decedent's own fault, due to his intoxication, was the sole cause of the accident. Plaintiffs also argue that the court erred in not finding the intersection to be a "dangerous trap" and in not finding that the dangerousness of the intersection was at least a contributing cause of the accident.

DECEDENT'S NEGLIGENCE

Prior to trial, it was stipulated that the decedent's blood alcohol content was .2%. A person operating a motor vehicle with a blood alcohol content of .1% or above is considered legally intoxicated.[2] LSA-R.S. 14:98. Plaintiffs contend on appeal that the trial court's finding that decedent's intoxication was the sole cause of the accident or anything more than a minor cause of the accident is erroneous.

Defendants presented the testimony of two pathologists regarding the effects of a .2% blood alcohol content upon a person attempting to drive a motor vehicle. Dr. Ronald Padgett testified by deposition. He stated that such a person would suffer from impaired vision and hearing; diminished judgment; slowed reflexes and reactions; and distorted reality. Dr. Padgett also stated that such a person would be confused and lacking in clarity of his thought process. Dr. Albert McQuiwon testified at trial. He stated that a person with decedent's blood alcohol content would have a slowed reaction time, impaired vision, lack of coordination, and would be unable to make logical decisions.

Plaintiffs contend that the testimony of these experts is unreliable. They point to the testimony of friends and family of the decedent who saw him from the morning of the accident almost until its occurrence, yet saw no evidence of intoxication. They also point to the testimony of witnesses who saw the decedent purchase gas at a convenience store immediately prior to the accident, yet did not believe that the decedent acted like he was intoxicated or suffering from the deficiencies that the experts described.

The record indicates that after leaving the convenience store, the decedent passed a camper driven by Forrest Waddell, Jr. Waddell and the passengers in the camper testified that when he passed the camper decedent was travelling between 50-60 m.p.h. They testified that the decedent passed the camper as they approached the curve in the road (about 373 feet from the intersection) and at that time they could hear the train whistle blowing. After negotiating the curve, the decedent attempted to stop. He skidded for some distance and then attempted to lay the motorcycle flat on the ground to avoid colliding with the train. Plaintiffs presented expert testimony *758 that the length of the skid and gouge marks indicated that the decedent began his attempt to stop at about 120 feet from the intersection. However, the expert made these calculations assuming that the decedent would have had a "relatively fast" reaction time (even though he had a blood alcohol content of .2%) and that he was travelling about 40 m.p.h. (despite the testimony to the contrary).

Another issue is whether the plaintiff should have heard the train's whistle. In Glisson v. Missouri Pacific Railroad Company, 246 La. 470, 165 So.2d 289, 291 (1964), the court stated:

"The general rule of law is that a motorist approaching a railroad crossing must use his senses of sight and hearing for possible oncoming trains, before traversing the crossing.

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Related

Rivere v. Union Pacific R. Co.
647 So. 2d 1140 (Louisiana Court of Appeal, 1994)
Kramer v. Continental Cas. Co.
641 So. 2d 557 (Louisiana Court of Appeal, 1994)
Richard v. Missouri Pacific Railroad
536 So. 2d 760 (Louisiana Court of Appeal, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
536 So. 2d 755, 1988 WL 133885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-missouri-pacific-rr-co-lactapp-1988.