
    Kenneth L. HODGES, et al v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 82-CA-0043.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.
    Robert Loren Kleinpeter, Baton Rouge, for plaintiffs-appellants Kenneth L. Hodges and Betty Devillier Hodges.
    Boris F. Navratil and Frank S. Craig, III, Rodney M. Ryan, Baton Rouge, for defendants-appellees and third party plaintiff Missouri Pacific R. Co., Texas Pacific R. Co., W.C. Holland and third party defendant.
    Robert H. Carpenter, Owen M. Goude-locke, Baton Rouge, for defendant-appellees State of La. through the Dept, of Transp. and Development.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit by Kenneth L. 'Hodges and Betty Devillier Hodges for the wrongful death of their son, Timothy Hodges. Defendants are Missouri Pacific Railroad Company, W.C. Holland, and the State of Louisiana, through the Department of Transportation and Development. After the plaintiffs rested their case, the defendants moved for a directed verdict. The motions were granted, and plaintiffs’ suit was dismissed. From the judgment of dismissal, plaintiffs have appealed.

Timothy Hodges was killed when the automobile he was driving crashed into a stationary tank car at the intersection of the Missouri Pacific track and Louisiana Highway 987-3. The record reveals that Highway 987-3 is a blacktop road, 20 feet in width, running east and west. The railroad is a single track line, running north and south. There is no appreciable change in the level of the highway at the intersection, which is protected by a crossbuck warning sign. The highway is straight for some distance approaching the crossing from the west, and there is no impediment to the view.

On the night of the accident a 65-car train was stopped while the engine was being turned around. The 18th car from the rear of the train was straddling Highway 987-3. Since the distance between the front and rear wheels was 42 feet, no part of the wheels or undercarriage of the car was on the roadway. The tank car was 13 feet nine inches high, had a clearance above the ground of 45 inches, and was painted white. Rocky DiBenedetto, the only eyewitness to the accident, testified that the tank car was gray and dirty, but that he had no difficulty in seeing it as he approached from the east.

Mr. DiBenedetto testified that he stopped his automobile at the crossing to wait for the train to move. He stated that he could see clearly under the tank car, and that he left his headlights burning, on dim. After a few minutes, he saw the Hodges vehicle approaching from the west, with its headlights burning, driving about 55 miles per hour. He testified that the car did not slow as it approached. It hit the tank car, passed beneath it, and wound up in a ditch on the east side of Louisiana Highway 1, which intersected Highway 987-3 about 80 feet east of the tracks. Young Hodges was pronounced dead at the scene.

The trial judge found that the fact that the intersection was unlighted, that the tank car was straddling the highway, and that one could see approaching traffic under the tank car were unusual circumstances which required the railroad to give special warning to approaching motorists. Since no such warning was given, he found that there was a prima facie showing of negligence on the part of the railroad, which was, of course, subject to rebuttal. However, he further found that Timothy Hodges, had he been paying attention and had he been keeping his vehicle under proper control, would have seen the railroad car blocking the road. He therefore found contributory negligence which barred recovery for young Hodges’ wrongful death.

Although we doubt the correctness of the finding of negligence on the part of the railroad, we pretermit consideration of that point, since we are of the opinion that the trial judge was correct in his finding of contributory negligence on the part of Timothy Hodges. The record shows that he had driven on the road before. The weather was clear and the road was straight and dry. The crossbuck sign was in place. The lights of the DiBenedet-to car were on dim, and should not have blinded Hodges. The law requires a motorist to stop for a railroad crossing when a train is near. R.S. 32:171; R.S. 45:563. A motorist approaching a railroad crossing is charged with seeing what he could have seen. Rodriguez v. Illinois Cent. Gulf R. Co., 395 So.2d 1369 (La.App. 1st Cir.1981).

We therefore find no error in the conclusion of the trial judge that Timothy Hodges failed to exercise the degree of care required by law, in that he failed to see what he should have seen. As the trial judge said: “... if he had been paying attention, would have seen this big white tank car ahead of him astraddle on the tracks.... Assuming he had his headlights on and assuming that he was paying attention and keeping his car under control, he should have seen the railroad car blocking the tracks.”

The judgment appealed from is therefore affirmed, at plaintiffs’ cost.

AFFIRMED.

SAVOIE, Judge,

dissenting.

I respectfully dissent.

It is well settled in Louisiana that each case involving a train-vehicle collision should be tried on its own facts and circumstances. Also, the party’s negligence is a matter of factual determination to be followed by application of proper law. Odom v. Hooper, 273 So.2d 510 (La.1973); Buchholz v. Dealers Transport Company, 399 So.2d 1303 (La.App. 4th Cir.1981). It is equally well settled that factual determinations by the trial court are not to be disturbed in the absence of clear (manifest) error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); West v. Jones, 411 So.2d 532 (La.App. 1st Cir.1982); Rahm v. Exxon Corp., 399 So.2d 676 (La.App. 1st Cir.1981).

The unrebutted evidence presented by the plaintiffs supports the trial court’s finding of negligence on the part of Missouri Pacific Railroad Company (Mo-Pac). I quote from the trial court’s oral reasons for judgment:

“In this case, the court has heard the testimony of the witnesses and it appears that there were special circumstances attendant in this case. We have an unlighted intersection. There are no lights at all. You had a railroad ear which was blocking the intersection wherein you could see, under the car, approaching traffic. It seems to me, under those circumstances, even though there was a crossing or cross buck sign located at the intersection, in view of the fact it was not a well-lighted intersection and other circumstances attendant thereto, that the railroad should have at least had a flagman or someone out there, and in this instance, I think the plaintiff had indeed made a prima facie case of negligence against the railroad which, of course, can be rebutted on the presentation of the railroad’s case.”
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I find no manifest error in the trial court’s determination as to MoPac’s negligence.

The trial court next addressed the question of contributory negligence, stating:

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“The big problem with the plaintiffs’ case is one of contributory negligence. ... I think the deceased was, of course, required to operate his vehicle as a reasonably prudent person. I don’t know whether his operation of his vehicle on the night in question of this tragic accident was due to the fact he had had too many drinks or not. It may have very well been due to fatigue. It may have been due to other distractions, but there isn’t any question in my mind after hearing the plaintiffs’ case that the deceased was not paying attention to the road ahead and to the warning signals. The other driver who was on the opposite side of the railroad did come to a stop and was waiting for the train, and it seems to me that in this case, Mr. Hodges, if he had been paying attention, would have seen this big white tank-car ahead of him astraddle on the tracks. Now, I readily understand it was not the ideal situation, because as I said before, it had headlights that were showing underneath the car and there was no lighting in the area. Assuming he had his headlights on and assuming that he was paying attention and keeping his car under control, he should have seen the railroad car blocking the tracks.” (Emphasis ours).
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I do not find evidence in the record to substantiate a holding of contributory negligence. First, no evidence is presented to support a contention that the decedent had “too many drinks” or that he was fatigued. On the contrary, the testimony of Miss Renee Glaser who rode with him from Baton Rouge to New Roads was that his driving was “normal”. There was no testimony that decedent’s driving was impaired. Testimony under both direct and cross-examination supports the opposite conclusion. Rocky DiBenedetto’s testimony also supports this conclusion. Secondly, the trial court’s conclusion that because DiBenedetto was able to see the railroad car, the decedent should have been able to see it, is contrary to the evidence. By DiBenedetto’s own testimony, he:

1. Drove this road daily and knew the crossing was dangerous.
2. Actually knew of the train’s existence across La. Hwy. 987-3 because he had paralleled the railroad track prior to turning onto La. Hwy. 987-3.
3. Saw the jumbo tank-car in his lights due to the inclined approach from his side of La. Hwy. 987-3.
4. Had no car across the track from him with its lights on.
5. Had turned onto La. Hwy. 987-3 only 81 feet before the track

Contrast this with the plaintiffs’ evidence of the decedent’s position:

1. Decedent was not familiar with the danger of this crossing.
2. Did not actually know (or is presumed not to have actually known) of the existence of the train.
3. Could not see the jumbo tank-car because the lights from DiBenedetto’s vehicle were shining toward decedent from below the “high rise” tank-car.
4. The unobstructed headlights of DiBenedetto’s vehicle gave the impression of an unobstructed highway ahead.
5.Was traveling down a straight road with no apparent obstruction.

At this stage of the proceedings, the facts do not support by a preponderance of the evidence, a finding of contributory negligence.  