Perkins v. Texas And New Orleans Ry. Co., Sup. Ct. Of La.,

243 La. 829, 147, So.2d 646 (1962)

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Nature of the Case

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Facts

A 113-car freight train pulled by four diesel engines was traveling east. A Dodge automobile was driven by Joe Foreman with Tanner Perkins as a guest passenger was nearing the railroad crossing where a warehouse obstructed the view to the west of an automobile driver approaching the railroad crossing from the north on Eddy Street. It likewise obstructed the view to the north of trainmen approaching the crossing from the west. Having previously served on this route, the engineer and brakeman were aware of this obstruction. D had installed at the crossing an automatic signal device consisting of a swinging red light and a bell. At the time of the accident, this signal was operating. A standard Louisiana railroad stop sign and an intersection stop sign were also located at the crossing. The train approached the intersection with its headlight burning, its bell ringing, and its whistleblowing. The fireman estimated that the train was approximately 60 feet from the crossing when the automobile emerged from behind the warehouse. The brakeman, however, estimated that the train was 30 to 40 feet from the crossing at the time the automobile came into view. Both crewmen immediately shouted a warning to the engineer, who applied the emergency brakes. The train struck the right side of the automobile and carried it approximately 1,250 feet. The two occupants were inside the automobile when it came to rest. Both were killed. The speed of the automobile in which Tanner Perkins was riding was variously estimated from 3-4 miles per hour to 20-25 miles per hour. Both P and D concede in their pleadings that Joe Foreman, the driver of the automobile, was negligent in driving upon the track in front of the train and that his negligence was a proximate cause of the death of Tanner Perkins. It is conceded that D's safety regulations imposed a speed limit of 25 miles per hour on trains in the town of Vinton. P has conceded in this Court that this self-imposed speed limit was a safe speed at the crossing. The train was traveling at a speed of 37 miles per hour. The train could not have stopped even if it had been going 25 m.p.h. The violation by trainmen of the railroad's own speed regulations adopted in the interest of safety is evidence of negligence. The trainmen were negligent in operating the train 12 miles per hour in excess of the speed limit. The district court awarded damages. The court of appeals affirmed that award. D appealed. D contends that the excessive speed of the train was not a proximate cause of the collision for the reason that the accident would not have been averted even had the train been traveling at the prescribed speed of 25 miles per hour. P contends that the speed of the train constituted a 'proximate, direct and contributing cause' of the accident.