# Robert J. Newman, Jr., Cross-Appellant v. Missouri Pacific Railroad Company and J. I. Brown, Jr., Cross-Appellees

> Court of Appeals for the Fifth Circuit · January 13, 1977 · 545 F.2d 439

URL: https://www.frixlaw.com/law-library/cases/9463293

## Case

- **Full name:** Robert J. NEWMAN, Jr., Plaintiff-Appellee Cross-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY and J. I. Brown, Jr., Defendants-Appellants Cross-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 13, 1977
- **Citations:** 545 F.2d 439; 1977 U.S. App. LEXIS 10550
- **Precedential status:** Published
- **Opinion:** Concurring in part by Clark
- **Judges:** Rives, Goldberg, Clark
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463293

## Opinion text

CLARK, Circuit Judge,
concurring in part and dissenting in part:
I concur in the reversal of the judgment against Engineer Brown. I respectfully dissent from the affirmance of the judgment against the defendant railroad. The physical facts are clearly established. The scene is just a plain, ordinary rural grade crossing of a relatively level, straight road by a single track. It is neither unusual nor dangerous to anyone exercising minimal care. Its total conditions are there for all who will look to see. Moreover, plaintiff already knew the crossing was there. If those who know must still be warned, it was enough that the railroad had supplemented the standard stop sign with a flashing’ red light signal which the court assumed was working properly. Under the Rules of the Road, this signal had only one message for the plaintiff — stop!
As the majority points out, the railroad’s fireman who saw plaintiff’s approach had the legal right to assume he would stop until the fireman reasonably concluded he would not. The undisputed physical facts attest that at the moment it became apparent that plaintiff was heedless of the train, the engine was at the edge of the roadway and bound by inertia to continue along its fixed course. Under applicable principles of Mississippi law, the district court’s findings .that plaintiff negligently drove his automobile into the engine without looking, listening or stopping fixed, not a contributory but, the sole proximate cause for the collision.
The district court’s conclusion that the plaintiff hit the train because he couldn’t see it is not borne out by the facts. When he left Reba’s roadhouse at 2 a. m. after the proverbial “two beers” and drove the short *448 distance back across these tracks, the plaintiff consciously or unconsciously chose to play Russian roulette with the crossing. He lost. This is where I would have left the matter.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463293. Public record. Not legal advice.