Erslew v. New Orleans & Northeastern Railroad Company

Decision Date14 December 1896
Docket Number12,272
Citation49 La.Ann. 86,21 So. 153
PartiesWILLIAM ERSLEW AND WIFE v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY, NEW ORLEANS CITY & LAKE RAILROAD COMPANY AND NEW ORLEANS TRACTION COMPANY
CourtLouisiana Supreme Court

Argued December 2, 1896

Rehearing Refused January 4, 1897.

APPEAL from the Civil District Court for the Parish of Orleans. King, J.

Benjamin Rice Forman, for Plaintiffs, Appellees.

Harry H. Hall, for N. O. & N. E. R. R. Co., Defendant, Appellant.

Denegre Blair & Denegre, for N. O. Traction Co., Ltd., and N. O. C. &amp L. R. R. Co., Defendants, Appellants.

OPINION

WATKINS J.

This action is for the sum of twenty thousand dollars damages, brought by plaintiffs for the reparation of the injuries suffered and inherited by them in the death of their son, through the fault, negligence and want of due care on the part of these defendants -- their claims being made against the three defendants in solido.

The cause having been submitted to and tried by the judge, there was a decree rendered in favor of the plaintiffs and against the defendants in solido for the sum of five thousand dollars, and the latter have appealed -- the plaintiffs having answered the appeal, and prayed for the amount of the judgment to be raised to the full sum demanded in their petition.

For the purpose of being exact, and correctly stating the issues, we have extracted from the brief of counsel for New Orleans & Northeastern Railroad Company, the following summary of the pleadings (Brief, pp. 1 to 4), viz.:

"The petition avers:

"'Petitioners are informed, and believe, and so aver, that the New Orleans City & Lake Railroad Company owns the franchise, track and equipment of the electric line of street cars, usually known as the Levee and Barracks Line, running along Levee and Enghien streets, and other public streets and highways in New Orleans, and it and the Traction Company (aforesaid) have a common management and control, and jointly operate said line, and have a joint interest therein, and the Traction Company, with the consent and under the direction of the said New Orleans City & Lake Railroad Company negligently and unskilfully put up and erected a guy wire across the public street and public levee, and across the tracks of a steam railroad company, lawfully laid along the public levee and and along Levee street, a public street and highway at the foot or intersection of Enghien street, with the levee and Levee street, so close to the ground as to obstruct the free passage of cars and vehicles with high load, and so close to the ground as to be dangerous to the life of brakemen on freight cars passing under it. The said steam railroad track had been there on the public highway and was itself a public highway for a long number of years, and it was negligence to place a strong guy wire across the said highway and track where large freight cars loaded with furniture and bulky articles were well known to be constantly passing, and so close to the ground as to be a constant source of danger to brakemen, who, in the discharge of their duties, are obliged to be on the top of the cars.

"'The New Orleans & Northeastern Railroad Company is liable, because it was its duty to its employees and all others in like situation to prevent the said wire being stretched in a dangerous position over its track, and to compel its immediate removal. The wire had been there a sufficient time for the said railroad company to compel its removal, and it was negligence in said company to run freight cars under said wire, with brakemen on top of said cars.

"'The said Traction Company is liable, because it placed the wire across the public highway in so dangerous a manner, and is interested and joins in the operation and use of the line of electric railway, of which the said guy wire is a part.

"'And the New Orleans City & Lake Railroad Company is liable, because it owns the said franchise and line aforesaid, procured the Traction Company to erect it, as its agent. The servants and agents of the defendant were warned of the dangers of the guy wire several weeks before it resulted in the death of petitioner's son, who, on or about 18th February, 1896, was in the performance of his duties as brakeman on a freight car of the New Orleans & Northeastern Railroad Company, and in its service, which was being propelled rapidly along Levee street when, just as he arose from his brake, his head struck this guy wire above described and knocked him off the car, and he was horribly mangled; and after suffering great pain of body and mind, he died. He contributed to the support of his parents, and they had a legal right to be supported by him. He was a steady, faithful, industrious boy, or young man. For his suffering, pain and agony of body and mind petitioners claim fourteen hundred ($ 1400) dollars; for funeral expenses, one hundred ($ 100) dollars; for their own loss of the comfort and support of their son, eighteen thousand five hundred ($ 18,500) dollars.'

The answer of the N. O. & N. E. Ry. Co. is as follows:

"'And now into court comes, by its president, C. C. Harvey, the N. O. & N. E. R. R. Co., made one of the defendants herein, and for answer to the plaintiff's petition, denies all and singular the allegations thereof, except in so far as may be hereinafter admitted.

"'It admits that Ernest Erslew, on or about the time stated in plaintiff's petition, lost his life by falling from a train of freight cars being operated by this respondent, and which cars passed over the said Erslew, thereby killing him.

"'But your respondent specially denies that said accident and resulting death was caused in any manner by its fault, unskilfulness or negligence, or that of its servants or employees.

"'And further specially answering, respondent avers that the guy wire referred to in plaintiff's petition was perfectly visible, that said Ernest Lewis Erslew knew of its location and had been frequently warned in respect thereto.

"'That he knew of the danger due to the location of said wire, both actually and presumptively, by reason of the patent and visible nature of the risk; that he had been frequently warned not only concerning the location of said wire, but of the danger to which said location exposed him and others.

"'That he had many times, both on the day that he lost his life and many days prior thereto, frequently passed under said wire; that said wire and its location came within the risk assumed by him in virtue of his employment, and that he contributed to the injuries resulting in his death by his own negligence and imprudence.'"

The following is a brief summary of the points made and relied upon by the Traction Company and the City & Lake Railroad Company, as the following extracts from their counsel's printed argument will show, viz.:

"1. -- GENERAL STATE OF THE CASE.

"To justify a judgment for plaintiff in this case two things must occur: Negligence on the part of defendant causing the accident; absence of negligence on the part of the deceased contributing to the accident. No matter how gross the fault or negligence of defendants, plaintiff can not recover if the evidence shows that the accident could have been avoided by the exercise of ordinary care and attention by the deceased, or if the evidence shows that the accident was due, in any degree, to heedlessness or inattention on the part of the deceased.

"These defendants mainly rely upon the fact, established by the uncontradicted evidence, that the deplorable death of young Erslew was due, in part, to his inattention to a danger which was patent and visible; to his forgetfulness of a danger with which he was familiar, and of which he knew and had been warned -- a danger he could have easily escaped had he not been inattentive and forgetful. This defence is wholly independent of the fault or the negligence charged against these defendants. It would suffice to defeat recovery, though we admitted, or the court found to have been established, every fault or negligence which plaintiff has charged us with.

"The case is a very simple one. There is little or no conflict of evidence, and little or no room for controversy over the law applicable thereto.

"In September or October, 1895, the New Orleans Traction Company, Limited, one of the defendants, strung a guy wire across some railroad tracks on the levee. The height of this wire was such that a man standing on the top of certain kinds of freight cars, in frequent use on the Northeastern Railroad, would have to duck his head in order to avoid being knocked off the car.

"This wire was a half inch in diameter, and was plainly visible for some distance. One of the plaintiff's witnesses said that it could be plainly seen nearly a hundred yards off. All of his witnesses saw it plainly at the time of the accident while standing across the street a considerable distance off.

"The accident occurred in February, 1896. During the whole period of the existence of the wire across the Northeastern track plaintiff's son had been in the employ of the Northeastern Railroad Company. His duties required him to stand on the top of cars and to pass daily under the wire. He knew of the location of the wire and was familiar with the necessity and means of avoiding it by ducking his head, not only because it was patent and visible, but because he had been specially warned and cautioned in respect thereto. The uncontradicted testimony of two train crew foremen, under whom the deceased had worked at different times, established that his attention had been called to the danger of the wire and that he had been warned in respect thereto. The danger was obvious; the means of avoiding were also obvious and easy to observe."

Pages 1 and 2 of brief....

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