The Texas and Pacific Railway Company v. Madge Reed Watkins, Individually and as Natural Tutrix of Her Minor Child, Richard Wesley Watkins
243 F.2d 171
5th Cir.
1957
Check Treatment

*1 There credit as to other circumstances. heavy reducing visibility to a range 50 and 100 between heavy large, duty noise of the diesel trac- La., Phelps, Orleans, Barnwell New J. tor was sufficient to drown out offset Dunbar, Marks, Sims, Phelps, Claverie & rumbling oncoming noise of an train. Orleans, La., defendant-appel- New disputed, but the tractor’s lant. ranged toward the southeast so Bradley, La., Noreo, C. William converging tractor were Clarke, Joseph, La., Thompson St. L. with the behind Wat- appellee. passenger kins’ back. This crack RIVES, running making late, Before TUTTLE 10 minutes Judges. BROWN, *2 whistle this favorable to second. The otherwise crossing plaintiffs private, known, demonstrates either that but crossing impact when train was so far blown until after the beyond, engine simply on, run that the decedent must moving train, obvious, main- into the or, lookout side of an any case, by him, impact saw never if the initial tained although tractor, train, wide view near the front of a crossing un- way driver had time within of and distance act, compels and, Railroad’s which and his obstructed of failure finding hypothesis, theoretical matter of law.2 not farther than 20 to approached went track as the train through photographs While the evidence from repairmen impressive and car plantation This, jury might that the with evidence concluded that operators warned impact had for some time initial was at the first dangers management damage (approxi- serious to the third car crossing daily of mately end), this as this 300 feet from the front this unmanageable slow, awkward, compelled. conclusion was The con- light trek to made its tractor, struction of the dam- fog frequently age wheel, work fields to its left front radiator shell visi of reduced other permit and bility, circumstances fan blade was sufficient to jury allow the sufficient conclude that the initial that, applicable Louisiana and, conclude under was nearer the front of the train principles,1 had failed imponderables3 the Railroad with the weird of acci- blowing dents, whipped due care exercise this the tractor around reducing warning signals, throwing against forceably effective car’s increasing vigil, like, speed, be sped by. side as it dangers special hazards and cause This narrows the Railroad’s attack con under those known then to inferences of distance and ditions. opportunity which claims are com- Notwithstanding ample pelled by basis for testimony.4 the witness Tastet’s jury’s verdict, analysis Railroad insists But this intricate with its fine Wig glass jug hanging 1. water in the cab of gins, undamaged. 131. Ry. Co., Guidry La. v. Texas N. O. 4. Tastet was a truck ap 637, 638, App., second 20 So.2d see 611, approved, turning from a side road into the cross- peal, La.App., 56 So.2d full, momentary, He had a road. but Ruling Law, Railroad, § from 22 Case view of and tractor. 233, p. 1004, 1005: When entered “ * * * a bound ex- railroad is off it cut his view of the operation reasonable care ercise preceding that, the moment he saw the injury trains to avoid of its train come out of the when it was crossings, private at and animals sons 100 feet from 75 to at which public; reason of as well as apparently tractor, some extraordinary peculiar or circumstances angle, was 15 to 20 feet from the cross- surrounding a and known to the ing. kept The train and tractor com- prudence require trainman, ing on and in an instant collision occur- signal given by alarm or red. neg- then its omission is speed estimated He the tractor’s at 8 to ligence.” and 14.66 feet Fidelity e. United States & Guar second, respectively) stopping dis- anty v. Co. speed tance at this at 8 to 10 feet for a S88, denied 346 certiorari U.S. planned stop stop but “a sudden 378; Wyche Brian, S.Ct. even be a little bit further La.App., Illinois Central Leichner, Reading Railroad Co. v. into Tastet’s estimated distance .8 11 of “15 to 20 feet” the apparent kept, tractor on its calculations, are based some of toward destruction. Whether did not assumptions which the obscuring beyond process *3 ought anticipated a train have that form, sev- to reckon with fails to took this warning, emerge suddenly things importance. The first would eral one second necessity with feet and action whether fifteen sudden that the eternity precipitated fleeting then between him and Watkins moments these ought he, stopped an had wheth- to have and to blow train’s failure the response repeat er warning signal with time and distance it audible braking action, subsequent he could necessary the «broke see, stopped, been had lookout he could whether should the past [engine] was the the feet would be 157.39 the pendicular, south, every per crossing. the the from hour north and For mile nearer, per hour, the to of the front end tractor exceeded 65 miles train north, assumption further 2.436 rail the Railroad feet travelled 3.56 train reach tractor tractor to it took for the seconds degree crossing.” constructs a 45 produce angle triangles assumption which tractor two On feet, hypotenuse feet, and 28.5 of 21.2 feet from cross- train 100 feet per respectively. moving ing, at 10 miles tractor with which the nature hour: away men” are Railroad insists “reasonable from the 15 feet “The tractor compelled follow, and the choices to 21.2 to to travel feet would have track reach crossing, life its to Ms reached Watkins as which would take close, During time, Rail- elaborated on 1.45 seconds. [engine] road’s brief: feet travelled 341.3 would have feet “If the tractor from more than 41 feet be therefore would approaching angle, crossing.” 45° past at a track «:« * * 21.2 it would have travel that the tractor was On * * * crossing, feet, reach feet The train train 75 feet being away per feet it when hour: at 8 miles tractor with travelling “Using figures, came out would these per (therefore crossing, of 65 hour excess miles tho 2.436 seconds reach take travelling per second) [engine] more during than 95.4 feet the train which time away being and decedent 15 feet from feet have travelled 232.39 and would travelling past track at the rate of 10 be 157.39 feet the cross- therefore (14.66 per second) hour feet miles it occurred.” when would take train one second be to take action: On Watkins’ failure past crossing, 20.4 more than feet 15 feet tractor was from “When angle, at which time tractor would be still at a 45° crossing. from 6.54 feet It would have to 21.2 feet to reach travel * * * point take the tractor of one second If Watkins 9/20ths feet, to travel the 6.54 his stopped at that ho had brakes which time the train would have travel- with an 11.2 foot could feet, led more than more than 66.3 45.9 a total of If tractor 20 feet clearance. past track, would have travel * * * every For mile hour the train exceed- its feet to 28.5 per hour, stop- ed 65 miles the train would could have therefore Watkins and ped travel 2 feet more for the 18.5 foot clearance. Obvi- slightest one and ously, nine-twentieths second it if the would take the ing. to reach tractor the cross- more than 10 feet from the distance crossing, passed If the tractor was 20 feet from the the train could have safety. it would have to travel 28.5 feet Yet the accident occur- absolute red. * * * reach “ * Notwithstanding that, 8at miles per second) train 75 had been alert and had seen the crossing, travelling have, merely tho in excess of 65 when he should had per hour, degree it would take the tractor a 45 turn to the left and parallel by placing path 2.436 seconds to his reach the seconds, passed these 2.436 the train the train could have would have safety. Yet, stop- travelled 232.39 less the he neither 75 feet in absolute crossing, ped it was from the nor turned vehicle.” his question, is, the decedent’s knowl- left instead turned to the edge ordinary there, that a very train was stuff of was the Wiggins, Cir., compounded. prudent man is certain Appealing illusion as is the Finally, the Railroad does not succeed Barge Valley v.Co. ty, Mississippi Line demonstrating palpable er- F. such Towing Inc., Indian made, ror has been mis- such a manifest 750, liability resolved cannot carriage justice occurred, for us has which, chick formula a mechanical en-or-the-egg-inquiry, to hold that the District Court abused attempts fix *4 dénying discretion in suddenly, new the motion for If the who hit whom. wrong trial because the verdict was so notice, out broke without though supported by some evidence. presence.became known to that its Corporation Pep- Commercial Credit his tractor abreast kins as it came per, Cir., 71; 187 F.2d Whiteman v. to the few Pitrie, Cir., 914; 220 F.2d Marsh v. it takes Co., Illinois Central R. F.2d say locomotive” “one words 498, 500. yet, moved 100 feet. action was hypothesis, the Railroad's Affirmed. merely by reason less the cause TUTTLE, Judge (dissenting). physical contact the fact proof I dissent. I think there was no running into the train.7 from the tractor negligence on the railroad standing afford rule8 Nor does that had causal connection with the verdict. an insulation collision, private road, on a with a trac- moving.9 standing. It was train was Indeed, tor whose driver crossed the track high speed and it was standing and who was under instructions crossing to appeared be an what employer approach from his cautiously. sounding within the the tractor-driver testimony of Moreover the suddenly occupied trump only eyewitness completely ruled out away. quickly went as train which any possibility that sense, Atlan common rule is one of struck the locomotive. Kammerer, 5 Line R. Co.v. tic Coast judgment I think 115, should be re- and it cannot versed. to establish as its assertion law when a matter of denied; TUTTLE, more, sumes, really dissenting. what is in Judge, fairly rough way judge reliable tiorari denied 346 U.S. 74 S.Ct. 378; time in seconds. Allen v. Texas & Pacific Ry. Co., Cir., 545; DeLoach opposite sup- readily 7. An situation is as Co., Cir., v. Louisiana & R. Arkansas posed: stationary a tractor or mov- 921; Thompson, 210 F.2d La.App., Domite v. ing slowly a few feet from the 55; Ramsey v. Lou apparently indicating to the locomotive Ry. Co., La.App., isiana & Ark. 70 So. passing it will await Gates v. Arkansas & L. M. R. when, of the train too late time and Co., La.App., 180 So. 835. too close sud- denly moves toward the track and the disposes 9. This of the further asserted train hits it broadside. The tractor’s given error the Court should have action would be the cause even requested tlie Railroad’s instruction: “A the train hit the tractor. e. highway across constitutes a most Brown v. Louisville & Nashville R. impressive notice to drivers of motor Cir., temporarily vehicles Fidelity Guaranty 8. United States blocked.” cer-