                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                         June 6, 2003
                              FOR THE FIFTH CIRCUIT
                                                                                   Charles R. Fulbruge III
                                 __________________________                                Clerk
                                        No. 02-31158
                                 __________________________


KANSAS CITY SOUTHERN RAILWAY CO.,

                                                                                   Plaintiff-
Appellee,

versus

LITTLE O’S TRUCKING, INC.; ET AL,


Defendants,

CLARENDON NATIONAL INSURANCE CO.,

                                                                                Defendant-
Appellant.

                 ___________________________________________________

                         Appeal from the United States District Court
                            for the Western District of Louisiana
                 ___________________________________________________


Before WIENER and CLEMENT, Circuit Judges, and LITTLE, District Judge.*

PER CURIAM:**


         *
        Judge of the U.S. District Court for the Western District of Louisiana, sitting by
designation.
         **
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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       Around noon on July 16, 1998, an eastbound train operated by Kansas City Southern Railway

Company (“KCS”) collided with a truck driven by Kenneth Sikes (“Sikes”) and owned by Little O’s

Trucking, Inc. (“LOT”). The collision, which occurred at a private railroad crossing, resulted in a

massive derailment and Sikes’ death. The subsequent police investigation concluded that Sikes caused

the accident by failing to stop at the railroad crossing. KCS was not found at fault in the accident.

       In order to recover the cost of repairing the locomotive and the railroad tracks, KCS sued

LOT and its insurer, Clarendon National Insurance Company (“Clarendon”), for negligence. On the

last day of trial, LOT and Clarendon requested a one-day continuance in order to allow their expert

witness, Archie Burnham (“Burnham”), to fly to Louisiana from Georgia. After closely questioning

the defense counsel, the district court denied the request for a continuance and granted summary

judgment to KCS on the issue of liability. The jury awarded KCS $986,825.74 in damages.

       On appeal, LOT and Clarendon argue t hat the district court erred in denying the one-day

continuance and granting summary judgment to KCS on the issue of liability. Based upon the totality

of the circumstances, we find no abuse of discretion in the denial of the continuance because LOT

and Clarendon have failed to demonstrate serious prejudice. Burnham’s testimony related either to

matters already addressed by other witnesses at trial (e.g., whether the train blew its whistle) or to

a purported duty that has no basis in law.

       Based upon our review of the record, we agree with the district court that KCS is entitled to

summary judgment on the issue of liability. As the district judge aptly stated, there is not a scintilla

of evidence showing any negligence on the part of KCS. The witnesses agreed that the train was

operating normally, the weather was fair, and Sikes had an unobstructed view of the railroad crossing.

The only dispute is over an alleged failure to blow the train whistle. Louisiana law does not require


                                                   2
trains to sound their whistles at private crossings. Texas & P. R. Co. v. Laborde, 257 F.2d 587, 592

(5th Cir. 1958) (citing Guidry v. Texas & N.O.R. Co., 20 So.2d 637 (La.App. 1 Cir. 1945)). Whether

the KCS train blew its whistle is thus irrelevant.

       We AFFIRM the judgment of the district court.




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