Brown v. The Texas And Pacific Railway Co.

• Decision Date: 01 April 1890
• Docket Number: 10,496
• Citation: 42 La.Ann. 350,7 So. 682
• Court: Louisiana Supreme Court
• Parties: EYMA BROWN ET AL. v. THE TEXAS AND PACIFIC RAILWAY COMPANY

7 So. 682

42 La.Ann. 350

EYMA BROWN ET AL. v. THE TEXAS AND PACIFIC RAILWAY COMPANY

No. 10,496

Supreme Court of Louisiana

April 1, 1890

APPEAL from the Twenty-Third District Court for the Parish of Iberville. Talbot, J.

R. N Sims, G. A. Gondran and A. Talbot, for Plaintiffs and Appellees.

Howe &amp Prentiss, for Defendant and Appellant.

OPINION

POCHE, J.

This is an action in damages by the father and the mother of one Elize Brown, for the death of the latter, which resulted from a collision between a passenger train of the defendant company and a plantation cart driven by the deceased.

The defence is a general denial, and the plea of contributory negligence.

The railroad company appeals from a judgment of $ 10,000, based on the verdict of a jury.

The accident occurred on the 6th of March, 1889, at about 2 o'clock P. M., on a large sugar plantation situated on the Mississippi river, extending to the rear between lateral lines, and which is crossed from one of said lines to the other by the road bed.

There are on the plantation several roads, extending from the front to the rear thereof, which cross the railroad, and which are elevated at each intersection to a height sufficient to reach the level of the road bed, so as to facilitate the passage over the same.

On that day the deceased, Elize Brown, who was a laborer on that plantation, was engaged in hauling seed cane from the front to the rear of the field, and in that work he had to use one of the roads which intersected the track as hereinabove stated. The cart which he drove was hitched to four mules two leading together, and two together as wheel mules, one of the latter being ridden by the driver.

As a special passenger train, running from New Orleans west, at the rate of thirty miles an hour, approached that plantation, Brown, the deceased, was driving his empty cart from the rear or swamp side of the railroad to the front or river side of the plantation, and, as his team was in the act of crossing the track, the collision occurred, by which three of the mules were killed outright, and by which he received the injuries which caused his death some fifty hours later. Plaintiffs' theory of the case is that the accident is attributable exclusively to the fault of the company and of its employes, and that the deceased is entirely free of any charge of negligence or want of proper care in the premises.

Their contention is that it was gross negligence on the part of the engineer to have failed to blow his whistle at one-quarter of a mile before reaching the crossing, as he was required by the rules of the company, and for failing to give any other warning of the approach of his train, which was an extra train, running and passing at that point at an unusual hour, at which time no trains of any description, or in any direction, were due according to schedule.

They further contend that for these same reasons the deceased, whose work necessitated his frequent crossing of the railroad track, and who knew no train was to be expected from New Orleans before late evening, and that the first train due on that day was to come from an opposite direction, on its way to New Orleans, and would be due only at 3:30 in the evening, was not held to a greater degree of care and caution than that which he had exercised on the occasion.

On many of the questions of fact involved in that contention the evidence is very conflicting.

But the preponderance of the testimony in the record is to the effect that as Brown approached the railroad track he was driving his team at a slow trot, but as he began to ascend the elevation leading to the crossing, his mules moved at a walk, which was their gait when struck by the engine.

He was looking straight ahead, and he did not see the train or hear its noise.

When he was at a short distance from the track he was seen by the fireman, who had just then taken his seat on the same side of the engine as that on which the team was moving, having a moment before been engaged in putting coal in the furnace.

As soon as he saw Brown he began to ring his bell, and observing that the latter was still approaching the track, he sang out to the engineer that a team was approaching, but Brown was then only about ten feet from the track.

The engineer, who sat on the opposite side of the engine, the regular place of that employe, did not, and says that he could not, see Brown on account of the intervening boilers, and he saw only the two lead mules, and that only at the moment of the collision. On the warning of the fireman, the engineer at once sounded his whistle, applied the air brakes, and reversed his engine. But it was too late, and the collision occurred.

It is admitted by the engineer in his testimony that he did not sound his whistle one-quarter of a mile before reaching the crossing at which Brown was struck, and that his only alarm whistle was sounded at about half a mile distant from that point, and that it was really the whistle for a platform on the adjoining plantation.

That testimony therefore goes a great way to fasten proof of negligence on the engineer, who is thus shown to have neglected or failed to comply with the rule of the company itself, by which he was required to have sounded his whistle at a quarter of a mile before reaching the crossing at which the accident occurred.

But the question is yet open as to the contributory negligence charged to the deceased.

It is in proof that the road bed was elevated about four feet above the level of the surrounding fields, that at that season of the year there were no plants growing or grown, no weeds or undergrowth of any kind, or other obstacle to obstruct the view of the road, which laid high and clear, open to uninterrupted view for at least half a mile either way from the crossing. The whole scene was in a large, open field in full cultivation, without the slightest obstacle to noise or sound, and it was on a clear day, with sunshine, at about 2 o'clock P. M., that the accident occurred.

It is therefore clear and unquestionable that the deceased was in no way deprived of every facility to see the approaching train, or to hear the loud noise made by it in its rapid motion at the rate of thirty miles per hour.

But it is in proof, and it is not denied by plain...