Bailey v. Louisiana & Northwest R. Co.

• Decision Date: 02 January 1912
• Docket Number: 18,540
• Citation: 129 La. 1029,57 So. 325
• Parties: BAILEY v. LOUISIANA & NORTHWEST R. CO. et al
• Court: Louisiana Supreme Court

57 So. 325

129 La. 1029

BAILEY v. LOUISIANA & NORTHWEST R. CO. et al

No. 18,540

Supreme Court of Louisiana

January 2, 1912

Rehearing Denied January 29, 1912.

Appeal from Third Judicial District Court, Parish of Claiborne; J E. Reynolds, Judge ad hoc.

Action by W. Turner Bailey against the Louisiana & Northwest Railroad Company and others. From a judgment for plaintiff defendants appeal. Modified and affirmed.

John A Richardson, for appellant Louisiana & Northwest R. Co.

Barnette, Roberts & Goff, for appellant Athens Lumber Co.

Wimberly & Reeves and McClendon & McClendon, for appellee.

OPINION

MONROE, J.

Statement of the Case.

This is an action in damages against the Louisiana & Northwest Railroad Company and the Athens Lumber Company, sued in solido, for personal injuries, alleged to have been sustained by plaintiff by reason of their negligence. After exceptions of no cause of action, the lumber company denies liability, and imputes contributory negligence and "assumption of risks" to plaintiff, and the railroad company makes a similar defense, omitting the "assumption of risks" plea, and adding the averment that, by contract between it and the lumber company, the latter had assumed liability for all injuries that might be received by "this defendant's employes," and the prayer that, in the event of a judgment against it, a like judgment be rendered in its favor against the lumber company.

We find the facts, as disclosed by the evidence, to be as follows:

Plaintiff was a section foreman in the employ of the railroad company, and his section included four miles of track between the town of Bienville, in the parish of Claiborne, and Bear Creek. On the morning of October 26, 1907, he started from Bienville at about 7 o'clock, on a hand car, with 3 section hands, and, going northward for about 3 miles, was passing through a cut, some 3 feet deep, when the brakeman of the car, who was working (or "pumping," as they call it) on the right side of the car, and could therefore see somewhat farther into a sharp curve (to the left), through a cut 14 or 15 feet deep, some 700 feet in front of them, saw, rapidly emerging therefrom, a train (which, as it turned out, was owned and operated by the lumber company), consisting of 7 flat cars and a caboose, and pushed by a locomotive, moving backward. The hand car was immediately stopped, and plaintiff and his men jumped off and attempted to remove it from the track; but, before they could do so, the train came so near that the men took themselves out of the way, and plaintiff was attempting to do likewise, and was in the act of climbing up the embankment, when the train struck the hand car and, knocking it against him, inflicted the injury of which he complains.

The witnesses differ as to how fast train was moving, plaintiff's witnesses saying "unusually fast," and defendant's that the speed was not unusual. Plaintiff's witnesses say that there was no outlook on the southern, or forward, end of the train. Defendant's witnesses say that the conductor of the train and two of his men were in the caboose, looking ahead through a door, which opened in that direction. Defendant's witnesses -- the engineer, the conductor, and his brakeman -- R. L. say that, before entering the deep cut, the engineer blew his whistle. Plaintiff's witnesses -- himself and his men, and two others who were on the outside, but were in a position to have heard -- say that no whistle was blown; and their testimony appears to be supplemented by that of the fireman on the locomotive. Taking the testimony of the witnesses on both sides, the facts are established, as we think, that, as the train, or, perhaps, we should say, the locomotive, was passing through the deep cut, the engineer turned his face to the rear, and for several minutes was examining the "equalizer bar," on the side of the locomotive, and the fireman was engaged in supplying the furnace with coal, with the result that, when those in the caboose saw the hand car in front of them, and attempted to signal the locomotive to stop, it was quite a little while before they could attract anybody's attention. The conductor testifies that he could not see any one on the locomotive, and did not see the engineer or the fireman until after the accident had happened, though he knew that they must have seen his signal, because the train did eventually stop. One of the men who was in the caboose with the conductor, being asked:

"Now how far did you run, how far did the train go, before you got * * * Mr. Short's, the engineer's, attention?"

-- replied:

"I suppose we went about eight car lengths"

-- which was a matter of, say, 320 feet; it being shown that the cars were 40 feet long. The engineer admits that the first intimation that he had of the danger in front was a signal, or warning, from the fireman, and the following questions were propounded to and answered by him, to wit:

"Q. How far was the hand car ahead when you first discovered it? A. I suppose about half a car length, flat car -- 40-foot car. Q. Who was giving the signals to stop? The fireman gave the signal to you; but who was giving signals from the front end of the train, if any one, to the engine? * * * A. I noticed a couple or three negroes back on the train, about two cars, possibly, from the caboose."

The fireman testifies that when he first saw the flagging from the front --

"the end of train was pretty close to the hand car, maybe two car lengths; that it scared him, and that he 'hollered to him' [the engineer], to stop him, and 'when I [he] knew anything the engine was stopped.'"

He testified at one time that the stop signal was given too late for them to stop, and that he never saw --

"any effort made to stop or check the train until after the man was struck. The train was going at a fast rate of speed."

At another time, speaking of the engineer, he said:

"He stopped as quick as he could, I guess; I know he stopped."

The engineer says that the train ran about six car lengths (240 feet) after striking the hand car. Other witnesses say that, when the train stopped, the locomotive was about opposite to where plaintiff was lying. The testimony, taken as a whole, is fairly conclusive to the effect that the distance from the southern end of the deep cut, from which the train emerged, to the point at which it struck the hand car was 690 feet; that there was nothing to prevent a "lookout" on the front of the train from seeing the hand car as soon as the train emerged from the cut, if not before; and that the train could readily have been stopped in time to have avoided the collision, if the brakes had been applied promptly when the hand car became visible, or even after the train had run as much as two or three hundred feet; and that, even if the train had not been actually stopped in time to avoid striking the hand car, the injury to plaintiff would, in all probability, have been avoided, if it had been slowed down, so that, when it did strike the hand car, it would not have knocked it, as it did, off the track and against the plaintiff. Not only was there delay on the locomotive, however, in taking the signals from the front of the train (delay caused by the fact that both the engineer and the fireman had their backs turned in the direction in which the train was moving), but there was delay at the front of the train in giving the signals. The conductor and his men, who were looking out through the narrow front door of the caboose, had, in order to give the signals, to run back through the caboose (or, at least, that is what they appear to have done), and get outside and wave their arms over the side of the train; whereas, if the caboose had been provided with a cupola, the signal might have been given from there at once, and seen at once on the locomotive; but the caboose was not so provided. Plaintiff had begun to work as foreman of the section in August preceding the accident, and, not having been furnished with any schedules or time-tables, he picked up his information as to movements of the trains as best he could. He learned from the schedule posted in the office at Bienville when the regular trains were to be expected; and, also, that he might...