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