An action for damages was instituted January 111, 1943 upon behalf of the widow and five minor children of Wesley John Guidry, who was killed when a truck he was driving was struck by a passenger train of the Texas & New Orleans Railroad Co. An emancipated minor son of the dеceased joined in the suit.
An exception of no right or cause of. action was sustained by the District Court on October 9, 1943. This Court of Appeal remanded the case to allow an amendment of plaintiffs’ petition, which amendment was made and the case was tried upon its merits October 1, 1945, taken under advisement, with leave given to counsel to submit the case on written briefs. Plaintiffs’ original bi’ief was not filed until September 21, 1950, and thereafter opposing briefs were filed and the District Court on May 15, 1951 rendered judgment, pursuant to written reasons therefor, rejecting plaintiffs’ demands at their 'cost. From this decision plaintiffs have appealed.
The collision which resulted in the death of Guidry occurred at approximately 6:15 а. m. on October 21, 1942, about one mile east of the Town of Vinton, where a private road leads from U. S. Highway No. 90 to the decedent’s home, crossing the inain line of the defendant’s railroad. Guidry lived approximately 300 feet north of the railrоad track, which runs east and west at this point, and is straight and level for several miles in either direction. The decedent was driving his farm truck in a southerly direction along the above described private road, endeavoring to cross the track, when his truck was stru'ek by one of the defendant’s passenger trains, and he was killed instantly.
Plaintiffs maintain that the sole and only cause of the accident was negligent acts of the defendant, detailed as follows:
(1) That the speed of the train, аpproximately 60 miles an hour, was excessive.
(2.) That the operators of the train gave no warning signals of its approach, although traveling in darkness and a heavy fog.
(3) That the defendant permitted its right of way to grow up' in weeds, grass and trеes, so that the deceased was unable to see the approach of the' train.
(4) That the train was running about one and one-half hours behind schedule at the time the accident occurred.
(5) That the operators of the train were cognizant of all of the facts above set out,
The defendant conсedés the train was traveling at about 60 miles per hour; that the accident occurred in darkness, when the weather was foggy; that the train was about 30 minutes late. It denies there was any failure of the operators of the train to give warning signals оf its approach to the crossing, contending that the bell on the locomotive was ringing, and its whistle was being blown to warn of the train’s approach. It is also denied that the decedent’s view was obstructed. It is further denied that any of the faсts or circumstances set out by plaintiffs constitute negligence on the part c»f the defendant or that they impose any duty on the operators of the train to give a signal before reaching a private crossing. Defendant then аlleges the accident happened solely because of the negligence of the deceased in going upon the railroad track without stopping, looking and listening for a train; that if he had taken the proper cautiоn he would have both heard and seen the train, pleading in the alternative the deceased was guilty of contributory negligence in driving upon the track without proper caution.
1.
Perhaps the latest expression concerning the sрeed of trains in vicinities similar to the situs of this accident is found in Moody v. Texas & P. Ry. Co., La.App.,
There is no question but that the accident happened in open country and that the track here was straight and level. The speed of the train is fixed by the firemen and engineer at approximately 60 to 65 miles per hour. There is no evidence whatsoever in the record that this speed was unsafe for either equipment or passengers.
However, plaintiffs contend the presence of the fog rеmoves this case from the general rule and consequently this speed constituted an act of negligence under the circumstances. We cannot agree with this contention since this argument was forwarded before this Court in Homeland Insurance Co. v. Thompson, La.App.,
Our conclusions in the quoted case were based upon the authorities cited therein.
This doctrine was recognized by the Second Circuit Court of Appeal in Smith v. Thompson, La.App.,
2.
There is some conflict in the testimony as to whether or not a signal was given by the operators of the train prior to the accident. Two witnesses testified no signals were given, but it developed they. were asleep
On the other hand, the testimony of James Welsh, the engineer of the train, Mussick, the fireman, W. L. Rogers, train baggage passenger, and his wife, Mrs. Ruth Rogers, who was in the baggage car with her husband, is very positive that the automatic bell on the locomotive had been ringing steadily for at least two' or three miles before the accident, and that the whistle had been blowing steadily for some time before it rеached the crossing where the accident occurred.
We must conclude from the evidence ample warning was given of the train’s approach to the crossing, even though we consider the unusual circumstances of fog аnd darkness made warning signals a legal duty.
3.
It seems clear from the photographs which were introduced in evidence, some of which were taken within a few hours after the accident occurred, that in clear weather the decedent, after reaching a point within 50 feet of the track, should have been able to have seen the approaching train for a distance of at least a thousand feet before it reached the crossing, and the Trial Judge so concluded. The weeds and willow trees which plaintiffs maintain obstructed the view of approaching trains from the east were located approximately 460 feet east of the center line of the private road the deceased was traveling, and about 34 feet north of the center line of the railroad tracks. While this growth reached a maximum height of seven or eight feet, they were near the foot of an embankment and consequently extended only about four feet higher than the surface of the right of way. The plaintiffs contend that this growth was negligently allowed to remain there by the defendant, and prevented the deceased from seeing the train as it approached from thе east, and that the general rule that a railroad train is not required to sound a warning for a private crossing in a rural area or diminish its speed, has no application under these special circumstances. This general rule is exрressed in Guidry et al. v. Texas & N. O. R. Co., La.App.,
The photographs, as well as the oral testimony, show that after reaching a point within 34 feet of the center line of the track the decedent should have been able to have seen the approaching train for at least twice that distance prior to the time it would reach the crossing. Also it is to be considered the deceased had lived in that location for two years, was familiar with the crossing, and had warned at least his sons and his wife of the necessity to stop and look for trains before proceeding. At least 40 trains pass this crossing daily, and no doubt the decedent knew as well as anyone the distance which he could observe a locomotive aрproaching from the east.
There is no doubt but that the reason the engineer did not see Mr. Guidry’s truck, nor did Mr. Guidry see the locomotive in time to avoid the collision was due to the presence of a fog. This impediment to visibility does not imposе upon the operators of the locomotive a duty to slow or stop the train, but there is under such conditions a duty imposed upon the operator of a motor vehicle to use increased caution or a greater dеgree thereof in crossing a railroad track. Barnhill v. Texas & P. R. R. Co.,
4.
The train which struсk the deceased’s truck was 38 minutes late from
5.
It is clear that even though the operatоrs of the train knew all of the facts which plaintiffs contend constitute negligence, and also that any crossing along defendant’s right of way was likely to be used, yet we cannot conclude there was any negligence upon the part of the operators of the train, whereas the decedent was clearly guilty of contributory negligence.
The judgment appealed from is affirmed.