           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 3, 2009
                                     No. 09-30011
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ROBERTA ANDERSON, on behalf of D D, on behalf of A D, on behalf of D M V,
As Next Friend; PSYRA BIVENS, on behalf of C A V, on behalf of Anthony D
Vanzandt Estate, Individually and as Personal Representative

                                                   Plaintiff-Appellants

v.

UNION PACIFIC RAILROAD CO; STEVEN BLACKBURN; JERRY GRANGER

                                                   Defendant-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:07-CV-1136


Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
EDITH H. JONES, Chief Judge:*
       Anthony Vanzandt was killed when his tractor-trailer rig was struck by
a train at a crossing on November 30, 2005. His estate sued the rail company
and operators for wrongful death. The district court granted the railroad’s
motion for summary judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                         No. 08-40796

      Vanzandt worked for Robbins Motor Transport making deliveries. On the
day in question, Vanzandt was traveling to the Martco facility where he made
daily deliveries. According to the undisputed testimony of the train’s engineer,
the engineer blew the whistle and rang the bell 1900 feet from the crossing
where the accident occurred. Vanzandt made a slow right turn toward the
intersection. At this point, the crew of the train saw Vanzandt approaching the
intersection and assumed he was going to stop. Approximately 400 to 500 feet
from the intersection, the train’s engineer realized that Vanzandt was not going
to stop. At approximately 150 to 200 feet from the intersection, the engineer
threw on the full emergency brakes on the 3,700+ ton freight train. On impact,
the train was traveling 38 miles per hour. Vanzandt was pronounced dead at
the scene.
      Appellants argue on appeal that the train delayed in applying the
emergency brake and that this delay caused the train to hit the truck’s cab
instead of the back of the truck. According to appellants, applying the brake at
500 feet would have given Vanzandt an additional 1.5 seconds, which would
have allowed the truck’s cab to clear the train tracks and resulted in injury
instead of death.
      This court reviews a district court’s grant of summary judgment de novo.
See Mendoza v. Murphy, 532 F.3d 342, 347 (5th Cir. 2008). Summary judgment
is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact.” Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)).
      Under Louisiana law,1 it is well established that “a train crew can presume
that vehicles approaching railroad crossings will obey the law and stop in time
to avoid an accident.” LeJeune v. Union Pac. R.R., 712 So. 2d 491, 495 (La. 1998)


      1
          Both parties agreed that Louisiana law is controlling in this diversity case.

                                                2
                                  No. 08-40796

(finding no fault on the part of the railroad where an ambulance with its lights
flashing failed to yield). Only when “the vehicles’s approach is so unusual as to
place an ordinarily prudent man on notice the vehicle cannot be brought to a
stop in time to avoid a collision” does the train crew have a duty to do
“everything in its power to avert the collision.” Id. (quoting Thibodeaux v.
Carlock, 392 So. 2d 1084, 1086 (La. App. 1980).
      Appellants have produced no evidence that there was anything in
Vanzandt’s approach that should have put the train’s crew on notice that he did
not hear or see the train approaching. Therefore, the only issue is the time
between when the train’s crew realized, while 400 to 500 feet away, that the
truck was not going to stop and the time when the crew applied the full
emergency brake, 150 to 200 feet away from the truck. Appellants submitted no
evidence that the crew breached its duty by acting unreasonably under the
circumstances. Appellants also offered no evidence to contradict Appellee’s
expert who stated that the 1.5 second reaction time by the train’s engineer was
reasonable.
      As there was no breach of duty, there could be no finding of liability on the
part of the Appellees. The judgment is AFFIRMED.




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