Broussard v. Louisiana Western R. Co.

• Decision Date: 11 December 1916
• Docket Number: 20791
• Citation: 73 So. 606,140 La. 517
• Court: Louisiana Supreme Court
• Parties: BROUSSARD et al. v. LOUISIANA WESTERN R. CO

73 So. 606

140 La. 517

BROUSSARD et al. v. LOUISIANA WESTERN R. CO

No. 20791

Supreme Court of Louisiana

December 11, 1916

Rehearing Denied January 15, 1917

Denegre Leovy & Chaffe, Harry W. Gueno, Lawrence H. Pugh, and Philip S. Pugh, all of Crowley, for appellant.

Smith &amp Carmouche, of Crowley, for appellees.

MONROE C. J., takes no part.

OPINION

PROVOSTY, J.

John E. Wright, husband of plaintiff, and four other men, were in the act of crossing the track of the defendant company's railroad in an automobile on Eastern avenue in the city of Crowley, on a bright Sunday afternoon in April, when the automobile was struck by a fast passenger train of the defendant company, and he and one of his companions on the back seat of the automobile were killed. Plaintiff sues in damages in her own behalf and that of their minor children for his sufferings and death.

The other three men survived and testified in the case.

It is charged that the proper signals by whistle and bell were not given, and that the fireman was incompetent; but the testimony is conflicting on those points, and need not be gone into, since we find that the speed of the train was excessive, and of itself constitutes negligence which renders the defendant company liable.

The evidence shows a speed of at least 30 miles an hour. The engineer admits 25 to 30, which, we take it, is more likely to mean 30 than less. And the evidence shows that this crossing, although at the boundary line of the corporate limits which the train was entering, and although the closely built-up part of the city does not reach quite that far, is as much used as any other crossing of this city of 6,000 inhabitants.

The city ordinance regulating the speed of trains located the speed limit several streets further inside of the city, and it is argued that this practically amounted to a permission to the railroad to run at ordinary speed at this crossing; but the rules of the defendant company provided that within the limits of Crowley the speed should not exceed six miles an hour; and prudence would dictate that a crossing so near the built-up part of a city as to be used as any other crossing in the city should be approached at a less rate than thirty miles.

The automobile was going in the same direction as the train, and along a road which for some distance before reaching the crossing paralleled the railroad, about 75 feet away from it on the fireman's side of the train. The fireman saw the automobile, and if, when he first saw it, and, indeed, for some time afterwards, he had suspected that it would attempt to cross ahead of the train, he could have stopped in time; but, when he did realize that it was going to cross, it was too late. Defendant contends that it would equally have been too late even if the speed had been the 15 miles fixed in the ordinance, and that therefore the proximate, or, in other words, the sole legal, cause of the accident was the act of the automobile in coming upon the track; and for showing that the accident would equally have been unavoidable if the speed of the train had been less, defendant adduces computations of seconds and number of feet. But that argument takes into consideration only what was possible to be done by the fireman and engineer; it loses sight of what was possible to be done by the occupants of the automobile. Non constat but that even a shade less of speed would have afforded Wright an opportunity of safety such as that which three of his companion availed themselves of, whose knowledge of the imminent danger preceded his by perhaps but the twinkling of an eye. The slower either the train or the car had been going, the greater would have been the margin of safety.

Of course, the automobile was grossly negligent in not looking and listening before attempting to cross, and, of course. Wright must be disconnected with that negligence before plaintiff can recover.

He is so disconnected if he was a passenger for hire, and had reason to assume that the chauffeur was competent. Roby v. Kansas City R. R., 130 La. 880, 58 So. 696, 41 L. R. A. (N. S.) 355; Wachsmith v. Baltimore & Ohio R. Co., 233 Pa. 465, 82 A. 755, Ann. Cas. 1913B, 684; 29 Cyc. 547.

There is no suggestion that the chauffeur was inexperience; but it is contended that the five men were a party of friends engaged in a common enterprise, each having equal control over the car, and equally responsible for its management. The facts in that connection are that Wright, Bonin, Andrus, and St. Germain, desiring to go from Lake Arthur, where they lived, to Rayne, distant some 40 miles, where the Lake Arthur baseball team was to play the Rayne team,...