Barnes v. Red River & Gulf R. R

• Decision Date: 02 June 1930
• Docket Number: 3828
• Citation: 14 La. App. 188,128 So. 724
• Parties: BARNES v. RED RIVER & GULF R. R
• Court: Court of Appeal of Louisiana — District of US

128 So. 724

14 La. App. 188

BARNES v. RED RIVER & GULF R. R

No. 3828

Court of Appeals of Louisiana, Second Circuit

June 2, 1930

Rehearing Refused July 5, 1930.

Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.

Action by Mrs. Loula Barnes against Red River & Gulf Railroad.

There was judgment for plaintiff and defendant appealed.

Judgment amended and affirmed.

Hawthorn Stafford & Pitts, of Alexandria, attorneys for plaintiff appellee.

Jackson & Smith, of Shreveport, attorneys for defendant, appellant.

OPINION

DREW, J.

The district judge has handed down a well-prepared written opinion in this case, and to a great extent we have adopted it as the opinion of this court.

Plaintiff sued for damages arising out of the death of her husband John C. Barnes, on June 24, 1929, due to an accident on June 22, 1929, caused by a train of defendant's lessee running into him while he was walking across a trestle over Bayou Boeul on the track of defendant near Lecompte, Rapides parish. Deceased was at the time of the accident employed by defendant as section foreman and was on his way home for the noon dinner. The train that ran into him and caused his death belonged to and was operated by the Gifford-Hill & Company, Inc., over the tracks of defendant with the knowledge and consent of defendant under a contract of lease granting the right and privilege to Gifford-Hill & Company, Inc., to use said track in the operation of its trains to haul gravel from its pit to Lecompte, La.

The right and privilege granted to Gifford-Hill & Company, Inc., under said lease agreement was for the sole and only purpose of hauling gravel over defendant's tracks and was limited to one train a day each way unless special permit was given for other trains. It was required to operate under orders given by defendant's dispatcher.

On the occasion of the accident, Mr. Barnes was on his way to his home for dinner and was walking the track, it being the shortest and most convenient way for him to reach his house. He had been in the habit of walking the track in going to and from home for several years to the knowledge of his superiors, the roadmaster, and other officials; when he arrived at the trestle, which was more than three hundred feet long, there was no train in sight, and he proceeded to walk across the same; just how far he had gone on the trestle when he was struck no one knows; however, the greater part of the evidence is that he was near the east end, that is, had nearly gotten across the trestle when he was struck; the trestle was very little wider than the train and no chance for him to step to one side and let the train pass; the trestle was very high and over water, which prevented him from jumping off the trestle.

The train had some time previous gone into Lecompte with a load of gravel and was at the time on its way back to the pit with twenty empty cars; it had no regular schedule and there was no way for the deceased to know when it was coming. There was no train in sight when the deceased entered on the trestle, and he proceeded to walk across with his head down, undoubtedly watching his step to prevent falling through the trestle; the train came out of Lecompte headed west, and on reaching the highway, some two hundred or more feet from the trestle, gave its usual signals for highway crossings but did not give any other signals. At the time there were two other trains in the yards at Lecompte, both of which were making the usual noise that goes with operating a train, all of which easily accounts for deceased not giving notice if he heard it to the oncoming train. The engineer, due to a curve in the track, could not see the trestle until he had nearly reached it, but the fireman had a plain view of the trestle and did see it and the deceased, whom he recognized for more than two hundred feet before the train reached the trestle.

Deceased was a man seventy years of age and therefore not very fast in his pace; the train was traveling at a rate of speed of from eight to ten miles an hour, and according to the testimony of trainmen could have been stopped within a distance of eighty or ninety feet. When the fireman saw deceased on the trestle he did not notify the engineer; neither did he ever give any signals for the deceased, his reason being that he thought deceased had sufficient time to reach the east end of the trestle before the train would get there. He testified that the deceased never looked up and was not aware of the presence of the train until it was right on him, and that when the train was nearly onto the deceased, he (the fireman) notified the engineer, who attempted to stop the train but was too close to the deceased to escape striking him. When the deceased saw the train, it was in the act of striking him, and the only thing for him to do in an effort to save his life was to step upon the pilot, which he did, and rode the engine across the trestle, where the train was slowed down and he got off. In hopping on the moving train he was struck in the abdomen and received internal injuries that brought on his death within about sixty hours.

Plaintiff first claimed compensation under the Employers' Liability Act of Louisiana (Act No. 20 of 1914, as amended). Upon defendant answering, alleging that deceased was engaged in interstate commerce, and that both defendant and Gifford-Hill Company, Inc., and their employees were engaged in interstate commerce just before and at the time of the accident, plaintiff filed a supplemental petition with an alternative plea that in the event the court held the case to come within the interstate commerce rule, she asked for judgment under the Federal Employer's Liability Law in a total sum of $ 45,476.50, itemizing said claim.

The testimony shows conclusively that the case is one coming under the provisions of the Federal Employers' Liability Act (45 USCA secs. 51-59), and in this court both cousel for plaintiff and counsel for defendant admit that to be the case.

Plaintiff sued, in her alternative plea, as administratrix of her husband's estate, alleging negligence upon the part of Gifford-Hill Company, Inc., and that the defendant, the lessor, is legally responsible for said negligence. She also prays for financial support for an adopted daughter living with her, for whose support a portion of her deceased husband's earnings were used. We will dispose of that matter at this time. There were no children of the marriage of plaintiff and her deceased husband, and no one but plaintiff herself can be considered in estimating the amount of the award. She cannot recover for or on account of the adopted child.

Defendant filed an exception of no cause of action, based upon the reason that the contract between defendant and its lessee Gifford-Hill Company, Inc., is for a limited purpose, that of hauling gravel from its pit to Lecompte, and not a general use of the road, and that holding one person responsible for the acts of another is a well-recognized legal fiction, and that in such cases responsibility must be clearly established, and that the rule of law that the owner of a railroad is responsible for the acts of the lessee is a rule always dependent upon the local law, and that the law of this state does not allow recovery of the lessor for acts of negligence of the lessee where the lessee's right of use of the railroad is limited to a specific purpose, such as hadling of gravel or logs and not allowed to use said railroad for any other purpose.

Counsel for defendant relies upon the case of Johnson v. Louisiana Railway & Navigation Company, 129 La. 332, 56 So. 301, 36 L. R. A. (N. S.) 887. We do not think the case in point. In that case the plaintiff was riding on the train of lessee by invitation of one of the lessee's employees and fell off when the train was suddenly stopped. The lessee was operating under a lease that only authorized it to haul logs and not passengers. The syllabus of the case correctly sets out what the court held.

"1. A railroad company which has leased to a lumber company the right to use its tracks only for logging trains, under the superintendence of the lessee, cannot be held liable for the death of one who was riding on a logging train belonging to the lumber company.

"2. A corporation operating a train for the purpose of carrying logs cannot be held liable for the death of one who accepts an invitation of the crew to ride on the train, especially when it was apparent to him that there was danger in so doing.

"3. It is not negligence for an engineer of a logging train, not intended to carry passengers, to suddenly stop his train on getting an emergency signal.

"4. Where one is warned that the position which he has taken upon a logging train is a very dangerous and insecure one, and he is thrown off by the sudden jolting of the train in coming to an emergency stop, and killed, the owner of the train will not be held responsible."

The case was decided upon the facts of the case, and the court held that the logging company was not negligent.

The general rule of law is that a railroad company is liable for injuries to persons by the wrongful and negligent operation of the cars upon the road, whether operated by itself or by any other corporation, to which it has leased it.

This rule has been adopted by the Supreme Court of this state and is the law governing in all cases arising under the Federal Employers' Liability Act in Louisiana.

In the case of Taylor v. Louisiana & Northwest Railroad Company, 129 La. 113, 55 So. 732, the court said:

"Where a railroad company leased a portion of its track to a lumber company, which subleased to a logging company, a workman injured by collision of a hand car...