344 F2d 123 Melancon v. Southern Pacific Company

344 F.2d 123

Marion Eskind MELANCON, Individually and as natural tutrix
of the minors, Ernest Melancon, Jr. and Kathy
Melancon, Appellant,
v.
SOUTHERN PACIFIC COMPANY, Appellee.

No. 21892.

United States Court of Appeals Fifth Circuit.

April 12, 1965.

William Harris McBride, McBride & Brewster, Lafayette, La., for appellant.

Harry McCall, Jr., Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, La., for appellee.

Before WOODBURY,1 WISDOM, and BELL, Circuit Judges.

PER CURIAM.

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1

In this suit arising out of a grade crossing collision, the District Court granted the motion for directed verdict of the defendant railroad company.

2

After careful consideration we have concluded that the facts warrant no inference other than that the sole and proximate cause of the collision and resulting death of the truck driver was his own negligence. See Turner v. Atlantic Coast Line Railroad Company, 5 Cir., 1961, 292 F.2d 586, for the strict test to be applied in determining whether a verdict should be directed. We have applied that test and found appellant's case wanting.

3

Affirmed.

1

Of the First Circuit, sitting by designation