#### Joseph D. NIXON, Sr., et al. v. SOUTHERN RAILWAY COMPANY et al.

No. 5856.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 6, 1974.

Rehearing Denied March 8, 1974.

Writ Refused April 26, 1974.

*372George W. Reese, Gilbert Bernstein, New Orleans, for plaintiffs-appellees.

Monroe & Lemann, John D. Wogan, New Orléans, for defendants-appellants.

Before LEMMON, J., and BAILES, and FLEMING, JJ. Pro Tem.

ROBERT M. FLEMING, Judge Pro Tem.

Alabama Great Southern Railroad Company has appealed from a judgment following a jury verdict’, which awarded damages to plaintiffs on account of the wrongful death of their 13 year old son in a pedestrian-train accident. The primary issues on appeal are the sufficiency of the evidence as to the defendant’s negligence and the applicability of the doctrine of last clear chance.

The accident occurred on a clear, warm Sunday afternoon in the City of New Orleans. The westbound freight train had just crossed the bridge over the Industrial Canal and was headed for the railroad yard about three miles away.

At the point of the accident, about 1,400 feet from the bridge, there were two main tracks, elevated about three feet above grade, and one side track at grade level. The tracks ran parallel to Leon C. Simon Boulevard and Hayne Boulevard and were located in a clear, level area between these streets. Pedestrian traffic between the streets had worn a footpath perpendicular to the tracks. In the area of the path scattered patches of weed ranged up to three feet in height.

As the boy walked the path toward the tracks, the train was approaching on his left. In the engine the conductor, the man in charge of the train, was stationed on the right and the engineer, who operated the controls, was on the left. The conductor (on the side from which the boy was approaching) first saw the boy when the train was 50 to 75 feet from him and immediately shouted at the engineer to blow the whistle. However, the train traveling at 45 miles per hour was virtually upon the boy just as the whistle sounded.

A motorist, traveling on Leon C. Simon Boulevard in the opposite direction from the train, witnessed the accident. When he first saw the boy at a point about 40 feet from the track, the boy was walking slowly and the train was coming through the bridge. He testified that the boy continued to look straight ahead and gave no indication that he saw or heard the train coming until the train sounded its whistle, at which point the train was only about six feet away. He saw the boy attempt to jump back, but it was too late.

The parents described the boy as being in perfect health, with no sight or hearing problems.

The conductor stated that the purpose of his being stationed on the side opposite the engineer was to observe things on that side that the engineer could not see. His duty was to keep a lookout to the front of the engine, as well as observing to the rear and generally checking the train. He was aware of the footpath where the accident occurred and one or two others in the general vicinity.

The engineer’s view to the right was obstructed by his being on the left side of the *373lead engine. The engineer thus did not see the boy prior to striking him. He testified that he blew the whistle at all public crossings and also at private vehicular or pedestrian crossings if he saw someone approaching. He also testified that he rang the bell continuously in that particular area on weekends, because numerous pedestrians crossed the tracks.

In argument before this court, plaintiffs admit their son was negligent, but argue that defendant’s employees were also negligent and that these employees had the last clear chance to avoid the accident. They argue that the train crew should have blown the whistle earlier and that this would have prevented the accident.

We find, however, that there was no actionable negligence on the part of the train crew. It would be prophetic to say that had the train whistle been blown one second before it in fact was blown the boy’s life would have been spared. The noise of the engines in the locomotive and the ringing of the bell had not alerted the boy. When the whistle was blown the boy jumped back but was his jump the result of the blowing of the whistle or the discovery of his peril by his proximity to the locomotive? Such is too speculative to serve as the basis for actionable negligence.

From the position of the train crew and their ability to control the forward movement of the train, the boy was not in a position of peril, being a pedestrian, until he reached a point at which the engineer was powerless to stop or slow the train to extricate the youth or save him from his own negligence.

For the last clear chance doctrine to apply, the person seeking application of the doctrine must prove (1) that the plaintiff (or in this case plaintiff’s decedent) was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) defendant actually discovered, or in the exercise of reasonable care should have discovered, plaintiff’s peril; and (3) that at the time defendant discovered or should have discovered plaintiff’s peril, defendant could have avoided the accident by the exercise of reasonable care.

The doctrine is not applicable to this case as the defendant was not in a position to avoid the accident. The only possible option to the defendant was to have blown the whistle earlier and we hold that under the facts herein it was not required that they do so.

We therefore conclude that the doctrine of last chance is not applicable in the present case.

Accordingly, the judgment of the trial court is reversed, and it now ordered that judgment be rendered dismissing plaintiffs’ suit. The costs of this appeal are to be borne by plaintiffs.

Reversed.

LEMMON, Judge

(dissenting).

I dissent on the basis that the railroad crew was negligent.

A railroad crew has a duty of reasonable lookout, which is determined in accordance with the circumstances of each case. When the crew members have actual knowledge that a private crossing, located in a populous urban area, is extensively used, the crew, upon approaching the crossing during the hours of likely usage, should reasonably anticipate pedestrian traffic and should keep a reasonable lookout therefor.

The conductor in the present case violated his duty of reasonable lookout. There were no extenuating circumstances which required that his attention be directed elsewhere. His view was not obstructed in any manner. Apparently, he was simply inattentive and failed to observe the tracks ahead, as he was assigned to do. Had he seen the boy one second earlier (at which time the train was 66 feet further back *374from the point of impact), the whistle would in all reasonable probability have warned the daydreaming youth in time to avert the accident. Since the boy jumped back when the whistle sounded at a time that the train was only six feet from him, it is reasonable to assume that the accident would have been prevented by an earlier warning, at which time both the train and the boy were further away from the point of collision.

The facts of this case do not bear out the railroad’s contention that the conductor (even if he had discovered the boy earlier) should have been entitled to rely on the assumption that the boy would stop before reaching the tracks. It was not necessary that the conductor be convinced of the boy’s peril; it was sufficient that the circumstances reasonably indicated that the boy’s inattention was likely to persist. The eyewitness testified that the boy gave no indication at any time that he was aware of the train or that he was going to stop. The boy’s inattention and unawareness were obvious several steps before he reached the track, at which point the conductor could still have averted the accident by sounding the whistle.

The evidence therefore establishes the reasonable probability that if the conductor had kept a proper lookout, he would have timely sensed the necessity of warning and would have prevented the accident. Accordingly, the conductor’s breach of his duty to keep a reasonable lookout resulted in his failure to timely discover the boy’s inattention and was a legal cause of the accident.

LAST CLEAR CHANCE

The majority opinion finds no negligence by the railroad, but discusses the applicability of last clear chance. In the event a writ of certiorari is granted to review the negligence determination, I also state my view as to the applicability of the doctrine of last clear chance.

The negligence of both parties consisted of inattention, and both parties in fact remained inattentive until it was too late for either party to avert the accident. Either party in the exercise of reasonable care could have discovered earlier that the boy and the train were on a collision course. Had the engineer seen the boy earlier, as he should have done, he could have averted the accident by sounding the whistle. But had the boy discovered the train earlier, as he should have done, he too could have easily avoided the accident.

As I view this case, either party in the exercise of reasonable care had an equal opportunity to prevent the accident, and neither party had an intervening superior opportunity. I therefore cannot justify the conclusion that either party had the last clear chance. See also Prosser, Law of Torts, Ch. 11, pp. 430-433 (4th ed. 1971); Restatement (Second), Torts § 480 (1965).

Prior to the case of Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936), Louisiana courts had generally held that the doctrine of last clear chance was unavailable to inattentive plaintiffs whose negligence continued up to the very moment of the accident. In the Rottman case, however, the Supreme Court observed that such a broad statement was misleading and was generally made in pedestrian cases in which “the fault of each (party) operated directly to cause the injury” and the “defendants had no better ‘last chance’ *to*avert the accident than did the pedestrians^”

Under the facts of the Rottman case, an inattentive plaintiff attempted to cross a highway without looking, and a defendant saw the plaintiff in time to avert the accident but failed to do so. The court allowed plaintiff recovery, stating:

> “* * * if a plaintiff negligently puts himself in a place of danger and his negligence and danger are *actually discov*
>       *375
>       *ered*by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can.” (p. 156) (Emphasis supplied.)

Two years later in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938), the Supreme Court had under consideration a case in which the defendant did not actually discover the inattentive plaintiff pedestrian in time to avoid the accident, but could have discovered him in the exercise of reasonable care. Restating the language quoted above, the court discussed a motorist’s duty of lookout and observed that a motorist’s failure to see what in the exercise of due diligence he should have seen does not absolve him from liability. The court concluded :

> “The Rottman Case is not authority for holding that, merely because the driver of the car in this case did not actually see the plaintiff, the defendant is not liable.”

While the court seemed primarily concerned with determining the defendant’s negligence, the judgment in favor of plaintiff (whose negligence the court found continued up to the moment of the accident) resulted in extending the doctrine of last clear chance to apply when the defendant should have discovered the inattentive plaintiff, but did not do so.

The Jackson case has been applied in various situations, but has never been overruled. See, for example, Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958). I agree with the statement in the Rottman case that the doctrine of last clear chance should not apply when neither party had the last chance or superior opportunity to avoid the accident. In the event of further review in the present case, I respectfully suggest that the holding of the Jackson case be reexamined.