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Plank v. Town of Rayville6/21/2000
upra, is the task of the factfinder and, as such, so is the allocation of shares of negligence. Since application of the factors necessarily involve factual considerations, the manifest error/clearly wrong standard applies. Socorro v. City of New Orleans, 579 So. 2d 931 (La. 1991). The record is replete with testimony that Mrs. Plank had sufficient room to move her vehicle forward or to the left or right to avoid the collision had she seen or heard the approaching train. Even if that were not the case, Mrs. Plank had sufficient time to exit her vehicle to avoid being involved in the accident. Faced with this evidence, we agree with the trial judge that Mrs. Plank's innattentiveness was the sole cause of her unfortunate accident.
In so finding, we also agree with the trial judge's decision that no fault for this accident should be assessed to any third party. First, as previously discussed, we find that the trial judge properly concluded that Rayville has no liability for the accident and, therefore, was assessed no fault. Second, regarding KCS, we cannot say that the trial judge's determination that the railroad was not liable for the accident was manifestly erroneous. There is simply no evidence of record to support any liability on the part of KCS. The testimony of Mr. Lindsey is uncontraverted that, as soon as he realized that Mrs. Plank's vehicle was not clear of the tracks, he applied the train's emergency brakes. Unfortunately, there was nothing more Mr. Lindsey could do at that point to avoid the collision. Furthermore, we note that the speed of the train, while arguably presenting a danger at 47 to 48 miles per hour, was within the federally mandated speed limit for the train to be traveling through Rayville. Finally, we find no evidence in the record to support a finding of liablity on the part of DOTD in this case. While it may have been prudent for DOTD to follow up with Mayor Berry regarding the recommendation to close the Louisiana Street crossing if, in fact, DOTD believed it to be a dangerous crossing, no act or failure to act on its part can be viewed as a cause of Mrs. Plank's unfortunate accident.
Rayville's Answer to Appeal
In its answer to the appeal, Rayville asserts numerous alleged evidentiary errors on the part of the trial judge. Since we find no error in the trial judge's finding it not liable for Mrs. Plank's accident, we pretermit any discussion of the assignments raised by Rayville as they would not effect the outcome of this appeal. See footnote number 1, supra.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to Plaintiffs, James E. Plank and Becky Plank Marable.
AFFIRMED.
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