Aaron v. Martin

• Decision Date: 02 November 1937
• Docket Number: 34393
• Citation: 177 So. 242,188 La. 371
• Court: Louisiana Supreme Court
• Parties: AARON v. MARTIN et al

177 So. 242

188 La. 371

AARON v. MARTIN et al

No. 34393

Supreme Court of Louisiana

November 2, 1937

Writs recalled and judgment affirmed.

A Sidney Burns, of Lake Charles, for appellant.

J. H Inman, of Ponchatoula, for appellee Edward B. Martin.

Carroll Buck, of Amite, Lemle, Moreno & Lemle, of New Orleans, E. C Craig, of Chicago, Ill, and C. N. Burch, H. D. Minor, and C H. McKay, all of Memphis, Tenn., for appellee Illinois Cent. Ry. Co.

ODOM Justice. HIGGINS, J., takes no part.

OPINION

ODOM, Justice.

This is a suit prosecuted by plaintiff to recover from the defendants Martin et al. damages for personal injuries sustained by him when an automobile in which he was riding as a guest of the driver collided with a box car at a point where a railroad switch track crosses a public highway. Plaintiff's demands were rejected by the trial court and his suit dismissed. On his appeal to the Court of Appeal, First Circuit, the judgment of the lower court was affirmed, and he applied for writs, which were granted.

The case was before the Court of Appeal twice, first on appeal from a judgment sustaining defendant's exception of no cause of action, and later on appeal from a judgment against plaintiff on the merits. The latter judgment is before us for review.

In each of its opinions, the Court of Appeal stated clearly the issues involved, as set forth in the pleadings. Its first opinion is published in 167 So. 106. Its second is reported in 172 So. 840.

Because the issues involved are so clearly and correctly stated in these opinions, we shall not restate them here, other than to say that plaintiff charges in his pleadings and now contends that the collision between the automobile in which he was riding and the box car was due solely to the fault and negligence of the defendants, and that he was guilty of no negligence at all. Defendants in answer alleged that they were guilty of no negligence, and, in the alternative, if they were, plaintiff cannot recover on account of his own contributory negligence.

The Court of Appeal (172 So. 840, 842) held that the train crew, which was under the defendant Martin's supervision, "did not take proper precautions to protect the crossing during these switching operations" (see its opinion on the merits), but held that "the plaintiff and the driver of the automobile were guilty of such contributory negligence as to bar a recovery." This holding was grounded upon its findings that:

"The freight cars were on the crossing before plaintiff and Brock reached it. The crossing was practically, if not completely, blocked as they approached. The train was moving much more slowly than the automobile. The highway is perfectly straight at this crossing. There was nothing to prevent plaintiff and the driver of the automobile from seeing a freight car across the highway. If the driver was going at a proper rate of speed and had his car under control, there is no reason why he could not have stopped in ample time to avoid running into as large an object as the side of a freight car. From the position and condition of the automobile after the collision, it is evident that it struck the side of the box car with a violent impact indicating that it was traveling at a good speed."

Plaintiff was riding on the front seat of an automobile owned and driven by his friend, Brock. He says he was Brock's guest, and that even though it be held that Brock was guilty of such contributory negligence as would bar his recovery in case he should sue for damages, he, plaintiff, is not precluded from recovery on that account. The Court of Appeal (172 So. 840, 843) disposed of that contention, using the following language:

"Plaintiff was sitting on the front seat with Brock and had a better opportunity of seeing the train at the crossing than Brock, yet he admits that he did not see it until within 30 or 40 feet of the crossing, too late for the driver to stop; that he did not warn the driver of this sudden and unexpected danger which loomed up in the highway before them."

We have reviewed the testimony and given due consideration to the points of law involved, and our conclusion is that the judgment of the Court of Appeal, affirming that of the district court, is correct. And in this connection we take occasion to say that we have not given as much attention to the question whether defendants were guilty of negligence as we have to the other points involved, but have assumed, as found by the Court of Appeal, that defendant Martin and the train crew "did not take proper precautions to protect the crossing during these switching operations" and were, therefore, guilty ofnegligence.

Even so, plaintiff is barred recovery. Both plaintiff and Brock were guilty of the grossest kind of contributory negligence. Brock, the driver of the car, was not only negligent; he was reckless. The accident happened at night, but the headlights and brakes of the automobile were in perfect condition. The highway was straight, paved, and its surface was dry. And yet, he ran the automobile against the side of a box car which blocked the crossing. The condition of the automobile after the wreck shows that it hit the box car with terrific force. Plaintiff so alleges in his petition. It was not a head-on collision. Brock saw the box car just before striking it and swerved to the left, so that the damage to the automobile was on the right-hand side. He says the box car was moving across the road and dragged his car. But it is evident that the damage was not caused by the dragging of the car, if there was any dragging of it, but by the impact. Brock says that the reason he ran into the box car was that when he first saw it he was so close to it that he could not stop. Plaintiff testified that although he was riding on the front seat with Brock, he did not see the box car until the automobile was so close to it that it would have been impossible for the driver to avoid the collision, and he thought he saw it about the time Brock did.

This being true, the question why they did not see the box car naturally arises. Plaintiff in his petition and in his testimony avows that neither Brock nor he was guilty of negligence. In paragraph 9 of his petition, plaintiff alleged that "at the time hereinafter complained of the said locomotive was in the act of moving a freight car, or several freight cars, of the defendant * * * on said spur track," and in paragraph 14, that the automobile "was being operated on said Highway in a lawful manner approaching the said spur track which crosses said road as herein above alleged." Paragraph 15 of the petition reads as follows:

"That the aforesaid train, consisting of said locomotive and the said freight cars was being operated on said spur track at said point just below Ponchatoula in Tangipahoa Parish, Louisiana, in the act of crossing the said road, as said automobile was approaching said spur track."

As to why neither Brock nor the plaintiff saw the box car, it is alleged in paragraph 17 of the petition that:

"The color of said freight cars is dull and drab, and such as does not reflect the light from an oncoming automobile."

In paragraph 18 it is alleged that "the said spur track is seldom used, and the danger resulting from said acts of said defendants was not apparent to your petitioner or to the operator of said automobile."

Paragraph 19 of the petition reads in full as follows:

"That by reason of the foregoing facts the said automobile in which petitioner was riding collided with said freight car of said defendant Illinois Central Railroad Company with a violent impact, by reason of which your petitioner received the injuries hereinafter complained of." (Italics throughout are the writer's.)

The "foregoing facts" alleged as to why plaintiff and the driver of the car did not see the box cars, were that they were not lighted and that the color was drab and did not reflect the light from the on-coming automobile.

By this we do not mean to say that the plaintiff did not allege that the crossing was not guarded by a flagman with a lantern as it should have been. He did allege that there was no flagman, no lantern, noother warning signal there. Hence defendant's negligence in not guarding the crossing. Then he states the reasons why the box cars were not seen. They were not lighted and were of a drab color.

Nowhere in his petition is it alleged that the box cars suddenly emerged out of darkness on to the road, and for that reason could not be seen in time to avoid the collision. But in one paragraph it is said that the locomotive "was in the act of moving a freight car, or several freight cars * * * either to or from the said veneer plant on said spur track," and in another, that the train "was in the act of crossing the said road as said automobile was approaching said spur track."

We have read with care and much interest the brief filed by counsel for plaintiff-appellant. We find that he does not contend that the failure of Brock and the plaintiff to see the box car in time to avoid striking it was due to its sudden and unexpected emergence on to the highway. But he seems to concede that the box car with which the automobile collided was on the highway and that the reason it was not seen was that it was of a drab color, for he says on page 6 of his brief:

"The preponderance of the evidence shows that the box car was of a dull drab color which did not reflect the light of an oncoming automobile. That it was on the track which is nearer to parallelling the highway than running straight across. The angle at which the box car was on the highway, as shown by the blue print in the record, was such that if any light from the automobile was reflected, it would not have been reflected...