Brown v. Tex. & Pac. Ry. Co

• Decision Date: 09 December 1931
• Docket Number: 4007
• Citation: 138 So. 221,18 La.App. 656
• Parties: BROWN v. TEX. & PAC. RY. CO
• Court: Court of Appeal of Louisiana — District of US

138 So. 221

18 La.App. 656

BROWN v. TEX. & PAC. RY. CO

No. 4007

Court of Appeals of Louisiana, Second Circuit, Second Division

December 9, 1931

Rehearing Refused January 14, 1932.

Appeal from Tenth Judicial District Court, Parish of Natchitoches. Hon. J. F. Stephens, Judge.

Action by Francis Brown against Texas & Pacific Railway Company.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

J. A. &amp J. H. Williams and C. H. McCain, of Colfax, attorneys for plaintiff, appellant.

Spencer Gidiere, Phelps & Dunbar, of New Orleans, and Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.

OPINION

CULPEPPER, J.

Plaintiff brought this action for damages as the alleged sister of Ernest Henderson who was struck and killed on the morning of July 8, 1928, by the defendant railway company's passenger train, a short distance south of Cypress Station, but within its yard limits, in the parish of Natchitoches.

It is alleged that the deceased was a single man, never married, 31 years of age, had no ascendants nor descendants, and no collateral relations other than petitioner, who was his sister and only legal heir at law. Plaintiff further alleged that the deceased was a devoted brother, a good provider, and his death has deprived her "of his support, maintenance, companionship, love, affection, advice and society." She prays for $ 4,000 for loss of support, $ 2,000 for loss of love and affection, $ 2,000 for loss of advice, and $ 2,000 for loss of society.

It is alleged that decedent's death was due solely to the gross fault and negligence of the defendant company, its agents and employees, for the following reasons: That at the time deceased was killed he was lying on or near defendant's railroad track, in plain view for several hundred yards in either direction; that he could have easily been seen by the engineer and fireman in ample time for the engineer to stop the train before reaching deceased, but he failed and neglected to do so; and that the deceased "had a right to be there and was not a trespasser."

Defendant, in answer, admitted its passenger train struck and killed the deceased on the day and at the place alleged, but denies that same was negligently done. Defendant avers that Ernest Henderson, a trespasser, wandered upon defendant's right of way and laid down upon the ground with his head on the end of a cross-tie and his body stretched away from the railroad track, and apparently went to sleep; that the engineer, as the train approached, did not discover that it was a human being until too late to stop the train, due to a cattle guard nearby obstructing his view, and to the fact that the body was clear of the track.

Defendant denied plaintiff's alleged relationship to the deceased, her dependency upon him for support, and otherwise entered general denial.

There was judgment rejecting the demands of plaintiff, and she has appealed.

Plaintiff's right to recover is based upon article 2315 of the Civil Code. She alleges that the deceased left no ascendants nor descendants, no brothers, was never married, hence left no widow, and that plaintiff was his one and only sister. These allegations were denied by defendant. In the interpretation of the codal article relied on, the courts of this state have many times held that same applies to actual and legitimate relatives, and that its provisions cannot be extended to reach other persons to whom they do not expressly apply. It is also the law that the burden rests upon those who claim to be actual and legitimate relatives to prove same. This is particularly true where the allegations of the existence of such relations are denied, as has been done in this case. Green v. New Orleans, S. & G. I. R. Co., 141 La. 120, 74 So. 717, 719; Spillman v. Texas & Pacific Ry. Co., 17 La.App. 473, 135 So. 66.

The evidence as to plaintiff's relationship to the deceased consists alone in her testimony as a witness on the stand in her behalf. There is no other testimony in the record, either by document or parole, upon the question of plaintiff's kinship to decedent, except mere references in certain portions of the testimony to plaintiff as the sister of the deceased, or reference to him as her brother. Plaintiff testified that the deceased was her whole brother, that they had the same father and mother, and that her father and mother were both dead. Asked if her father and mother were married by law, plaintiff answered:

"I guess so, I cannot tell what happened in those times, she been dead 21 years."

She testified that she did not know how long her father had been dead; that her father and mother had been separated before her mother died. She testified that she was a small girl when the deceased was born, and that her father and mother were, at the time, living together as man and wife, and that no one disputed that they were married. She also testified that her father and mother had lived together "in that country down there" as long as she could remember before deceased was born, and continued to live together until they separated a few years later.

Ernest Henderson, the deceased, was, so plaintiff testified, 31 years of age at the time of his death, and plaintiff was a few years his elder. We gather from plaintiff's testimony that the home of her father and mother, for many years, was in the locality where plaintiff resides. If they were ever married, in all probability the records of Natchitoches parish would disclose that fact. Yet plaintiff has produced no evidence of any such record as existing, or that any such record ever existed and was later lost or destroyed. No witness was tendered to the court to testify that a marriage...