Chapter Ⅳ　CAUSATION

Cause in Fact

Perkins v.Texas and New Orleans Ry.Co.

Supreme Court of Louisiana,1962

243 La.829,147 So.2d 646

SANDERS,JUSTICE.This is a tort action.Plaintiff,the 67-year-old widow of Tanner Perkins,seeks damages for the death of her husband in the collision of an automobile,in which he was riding,with a train of the defendant railroad.The di-s trict court awarded damages.The Court of Appeal affirmed.We granted certiorari to review the judgment of the Court of Appeals.

The tragic accident which gave rise to this litigation occurred at the intersection of Eddy Street and The Texas and New Orleans Railroad Company track in the town of Vinton,Louisiana,at approximately 6:02 a.m.,after daylight,on September 28,1959.At this crossing Eddy Street runs north and south,and the railroad track east and west.Involved was a 113-car freight train pulled by four diesel engines traveling east and a Dodge automobile driven by Joe Foreman in a southerly direction on Eddy Street.Tanner Perkins,a guest passenger,was riding in the front seat of the automobile with the driver.

Located in the northwest quadrant of the intersection of the railroad track and Eddy Street was a warehouse five hundred feet long.A “house track” paralleled the main tract on the north to serve the warehouse.This 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 brake man were aware of this obstruction.

To warn the public of the approach of trains,the defendant railroad 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.

Proceeding east,the train approached the intersection with its headlight burning,its bell ringing,and its whistle blowing.

The engineer,brakeman,and fireman were stationed in the forward engine of the train.The engineer was seated on the right or south side,where he was unable to observe an automobile approaching from the left of the engine.The brakeman and fireman,who were seated on the left or north side of the engine,were looking forward as the train approached the intersection.These two crewmen saw the automobile emerge from behind the warehouse.At that time the front wheels of the automobile were on or across the north rail of the house track.The fireman 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 1250 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.

The plaintiff and defendant railroad concede in their pleadings that Joe Foremen,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 the railroad’s safety regulations imposed a speed limit of 25 miles per hour on trains in the town of Vinton.The plaintiff has conceded in this Court that this self-imposed speed limit was a safe speed at the crossing.The train was in fact traveling at a speed of 37 miles per hour.

Applicable here is the rule that the violation by trainmen of the railroad’s own speed regulations adopted in the interest of safety is evidence of negligence….

We find,as did the Court of Appeal,that the trainmen were negligent in operating the train 12 miles per hour in excess of the speed limit.

… [T]he prime issue in this case is whether the excessive speed of the train was a cause in fact of the fatal collision.

It is fundamental that negligence is not actionable unless it is cause in fact of the harm for which recovery is sought.It need not,of course,be the sole cause.Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm.Under the circumstances of the instant case,the excessive speed was undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it.On the other hand,if the collision would have occurred irrespective of such negligence,then it was not a substantial factor.

In the instant case the train engineer testified that at a speed of 25 miles per hour he would have been unable to stop the train in time to avoid the accident.Othe r facts of record support his testimony in this regard.With efficient brakes,the milelong train required 1250 feet to stop at a speed of 37 miles per hour.It is clear,then,that even at the concededly safe speed of 25 miles per hour,the momentum of the train would have,under the circumstances,carried it well beyond the crossing.This finding,of course,does not fully determine whether the collision would have been averted at the slower speed.The automobile was also in motion during the crucial period.This necessitates the further inquiry of whether the automobile would have cleared the track and evaded the impact had the train been moving at a proper speed at the time the trainmen observed the automobile emerge from behind the warehouse.Basic to this inquiry are the speed of the automobile and the driving distance between it and a position of safety.

The testimony of the witnesses is in hopeless conflict as to the speed of the automobile at the time of the collision….

Despite these deficiencies in the evidence,the plaintiff argues that had the train been traveling at a proper speed the driver of the automobile would “conceivably” have had some additional time to take measures to avert disaster and the deceased would have had some additional time to extricate himself from danger.Hence,the plaintiff reasons,the collision and loss of life “might not” have occurred.

On the facts of this case,we must reject the escape theory advanced in this argument.Because of the deficiencies in the evidence which we have already noted,it is devoid of evidentiary support.The record contains no probative facts from which the Court can draw a reasonable inference of causation under this theory.In essence,the argument is pure conjecture.

Based upon the evidence of record,it appears almost certain that the fatal accident would have occurred irrespective of the excessive speed of the train.It follows that this speed was not a substantial factor in bringing about the accident.

We conclude that the plaintiff has failed to discharge the burden of proving that the negligence of the defendant was a cause in fact of the tragic death.The judgment in favor of plaintiff is manifestly erroneous.

For the reasons assigned,the judgment of the Court of Appeal is reversed,and the plaintiff suit is dismissed at her cost.

Notes and Comments

1.Apparently,the deceased’s own fault – proceeding onto the tracks in front of an approaching train without stopping and looking before crossing – was the immediate cause of the accident.The central issue in this case is whether the deceased could have more chances of survival had the train not been speeding.In other words,did the defendant in any way,or to any extent,diminish the already very narrow chance of escape,or make it more unlikely.The court’s answer is no.Even at the normal speed limit where the engine could have approached less fast,the deceased would still have not enough time to get out of the track or out of the vehicle to avoid being hit.In other words,the deceased’s own negligence had made the accident unavoidable.In that sense,the defendant’s negligence is irrelevant.

2.In tort law,the negligence has to be relevant in causing the injury.For example,no matter how fast one drives the car without causing an actual injury,the most he can be accused of is endangering public safety.For a plaintiff to esta-b lish a case against a defendant in tort,and therefore collect damages,a necessary causal link between the defendant’s negligence and the resulting injury must be established and proven in court.

3.Why doesn’t the plaintiff sue the warehouse,or the railroad company,for building the warehouse in that location (or vice versa,for building the railroad near the warehouse),which just caused the accidents like this waiting to happen?Perhaps the fact that warning signs are sufficient would bar the plaintiff’s action because that would diminish the deceased’s liability and enlarge the responsibility of the railroad company or the warehouse.However,wouldn’t it be fair to do so anyway? In a strict liability sense,the deceased would not have to be in a dangerous position and carry the responsibility to avoid it had the railroad crossing not been there.How would you develop a theory based on strict liability?

4.Think of the following argument: most people,when jaywalking,would calculate the speed of the approaching vehicles and chances to getting over,or alternatively,the possibility or likelihood of the approaching vehicle to slow down.This is usually done in a split of a second,and then they would quickly decide whether to proceed or wait.Some people,unfortunately,just couldn’t wait,espe-cially when seeing a long procession of vehicles approaching.In Perkins,the train was over a mile long.Anyone seeing that would like to get over the tracks before it.If the burden to avoid the accident is placed on the railroad company and the trainmen to approach a blind crossing at a very low speed,and pull the emergency brake,it is undoubtedly too costly and too inconvenient (it takes much longer for a train to stop and restart again).If the burden is placed on the vehicles and pedestrians,the cost is their lives.Of course,more safety devices would certainly help (such as turnpikes,etc.).The point in legal argument would be,suppose everything will remain the way it is,different allocation of risks and liabilities would encourage a more desirable social behavior and discourage the undesirable ones.Would that be the rationale behind the court decision in Perkins?