As though almost at hand were the day of the juridical Univac, in which data on weather, distance, speed, time, maxima-minima variables, favorable and unfavorable inferences are fed into its insatiable maw there to be stored, sorted, weighted, compared and digested, the Railroad with great earnestness insists that mechanically there can be no liability for the crossing death of Opal Watkins because the tractor hit the train, not the train hit the tractor. The jury with its cruder abacus delivered a contrary result.

The accident took place in the early morning hours at the crossing of a private road over the railroad track as it runs east and west through the Green & Gold Plantation for whom Watkins worked. The passenger liner was eastbound, and Watkins, on the north side of the track, was driving a large, cumbersome diesel tractor pulling an implement on or adjacent to the crossing road in the course of going to the plantation fields south of the track. There was, to the Railroad's knowledge, a considerable movement of employees and heavy farm equipment over this crossing every morning and during the day. While both were in motion the tractor, somewhere near its front end, collided with some part of the train on the north side of the crossing killing Watkins immediately.

Testing this, as we must with all inferences most favorable to the jury verdict, there was ample, believable evidence which the jury could and presumably did credit as to other circumstances. There was heavy fog reducing visibility to a range between 50 and 100 feet, and the noise of the large, heavy duty diesel tractor was sufficient to offset or drown out the rumbling noise of an oncoming train. The angle is disputed, but the tractor's course ranged toward the southeast so that train and tractor were converging with the train approaching behind Watkins' back. This crack passenger train, running 10 minutes late, was making 65 miles per hour or approximately 96 feet per second. The whistle for this private, but known, crossing was not blown until after the impact and when the engine was right on, or just beyond, the crossing. And in the lookout maintained by him, the engineer never saw the tractor, although a wide view of the right of way and crossing road was unobstructed and, on any of the Railroad's theoretical hypothesis, the tractor was not farther than 20 to 30 feet from the track as the train approached and went through the crossing.

This, with evidence that the plantation operators had for some time warned the Railroad's management of dangers of this crossing as this daily movement of slow, awkward, unmanageable farm equipment made its daily trek to and from the work fields frequently in fog and other circumstances of reduced visibility, was sufficient to allow the jury to conclude that, under applicable Louisiana principles,1 the Railroad had failed to exercise due care by earlier blowing effective warning signals, reducing speed, increasing vigil, or the like, because of the special hazards and dangers of that crossing under those known conditions.

Notwithstanding this ample basis for the jury's verdict, the Railroad insists that evidence otherwise favorable to the plaintiffs demonstrates either that the train was so far through the crossing that the decedent must simply have run into the side of an obvious, moving train, or, in any case, if the initial impact were near the front of the train, the tractor driver had time and distance within which to act, and his failure compels a finding of contributory negligence as a matter of law.2

While the evidence from photographs and car repairmen was impressive and the jury might have concluded that the initial impact was at the first point of serious damage to the third car (approximately 300 feet from the front end), this conclusion was not compelled. The construction of the tractor, the light damage to its left front wheel, radiator shell and fan blade was sufficient to permit the jury to conclude that the initial impact was nearer the front of the train and, with the weird imponderables3 of accidents, this whipped the tractor around throwing it forceably against the car's side as it sped by.

This narrows the Railroad's attack then to inferences of time, distance and opportunity which it claims are compelled by the witness Tastet's testimony.4 But this intricate analysis5 with its fine calculations, some of which are based on assumptions which the jury did not have to make even if its reasoning process took this form, fails to reckon with several things of importance. The first is that the necessity for sudden action in these fleeting moments was precipitated by the train's failure earlier to blow an audible warning signal and repeat it if necessary as the engine broke through the fog and could see, had lookout been kept, the tractor on its apparent course toward destruction. Whether with fog obscuring the track beyond 75 feet he ought to have anticipated that a train would suddenly emerge without warning, whether with fifteen feet and one second then between him and eternity Watkins ought to have stopped and had he, whether with time and distance for response and subsequent braking action, he could have stopped, whether he should have turned to the left instead of the right was the very stuff of which the ordinary prudent man is compounded.

Appealing as is the illusion of certainty, Mississippi Valley Barge Line Co. v. Indian Towing Co., Inc., 5 Cir., 232 F.2d 750, liability cannot be resolved by a mechanical formula which, with chicken-or-the-egg-inquiry, attempts to fix who hit whom. If the train suddenly, without notice, broke out of the fog so that its presence became known to Watkins as it came abreast his tractor then travelling the few remaining feet to the track, the train, in the time it takes to say the words6 "one locomotive" would have moved 100 feet. And yet, on this hypothesis, the Railroad's action was not the less the cause merely by reason of the fact that the physical contact was from the tractor running into the train.7 Nor does the standing train rule8 afford an insulation from the jury verdict. The train was not standing. It was moving.9 Indeed, it was moving at high speed and what appeared to be an open crossing to the tractor-driver within the sounding of a trump was suddenly occupied by a train which just as quickly went away. The rule is one of common sense, Atlantic Coast Line R. Co. v. Kammerer, 5 Cir., 239 F.2d 115, and it cannot be applied to establish contributory negligence as a matter of law when its assertion assumes, without more, what is really in question, that is, the decedent's knowledge that a train was there, Kansas City Southern Ry. Co. v. Wiggins, 5 Cir., 234 F.2d 128, 132.

Finally, the Railroad does not succeed in demonstrating that such palpable error has been made, such a manifest miscarriage of justice has occurred, for us to hold that the District Court abused its discretion in denying the motion for new trial because the verdict was wrong even though supported by some evidence. Commercial Credit Corporation v. Pepper, 5 Cir., 187 F.2d 71; Whiteman v. Pitrie, 5 Cir., 220 F.2d 914; Marsh v. Illinois Central R. Co., 5 Cir., 175 F.2d 498, 500.

Affirmed.

TUTTLE, Circuit Judge (dissenting).

I dissent. I think there was no proof of negligence on the part of the railroad that had any causal connection with the collision, on a private road, with a tractor whose driver crossed the track daily and who was under standing instructions from his employer to approach the track cautiously. Moreover the testimony of the only eyewitness completely ruled out any possibility that the tractor was struck by the locomotive.

I think the judgment should be reversed.

Rehearing denied; TUTTLE, Circuit Judge, dissenting.