Buchanan v. C. R. I. & P. Ry. Co.

• Decision Date: 21 January 1929
• Docket Number: 3374
• Citation: 9 La.App. 424,119 So. 703
• Parties: BUCHANAN v. C. R. I. & P. RY. CO. and BURTON
• Court: Court of Appeal of Louisiana — District of US

119 So. 703

9 La.App. 424

BUCHANAN v. C. R. I. & P. RY. CO. and BURTON

No. 3374

Court of Appeals of Louisiana, Second Circuit

January 21, 1929

Appeal from the Eighth Judicial District Court, Parish of Winn. Hon F. E. Jones, Judge.

Action by Frederick Buchanan and Wife against Chicago, Rock Island and Pacific Railway Company, and A. P. Burton.

There was judgment for defendants and plaintiffs appealed.

Judgment affirmed.

T. A Carter, of Alexandria, attorney for plaintiffs, appellants.

A Leonard Allen, of Winnfield, attorney for defendant appellee, A. P. Burton.

Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellee, Chicago, Rock Island and Pacific Railway Company.

OPINION

STATEMENT OF THE CASE

REYNOLDS J.

The plaintiffs, Frederick Buchanan and his wife, Mrs. Irma M. Buchanan, sue the defendants, A. P. Burton and Chicago, Rock Island and Pacific Railroad Company, to recover damages for the death of their child, Verna Marion Buchanan, aged between three and four years, caused, it is alleged, by the negligence of the defendants, or either of them.

Both defendants filed exceptions of no cause and no right of action, which were sustained by the trial court, and plaintiffs' demands were rejected and their suit dismissed, and they have appealed.

OPINION

The material allegations of the petition are as follows:

"That A. P. Burton, . . . is a citizen and resident of Winn Parish State of Louisiana, and that the Chicago, Rock Island & Pacific Railway Company is a railway corporation engaged in the business of a common carrier . . . that in due course of the Chicago, Rock Island & Pacific Railway Company's business, under a contract with one A. P. Burton, certain cross-ties . . . were placed upon the right of way of the Chicago, Rock Island & Pacific Railway Company . . . in the town of Winnfield, Winn parish, Louisiana . . . That the ties were either the property of the said A. P. Burton or . . . of the Chicago, Rock Island & Pacific Railway Company. That your petitioner is unable to ascertain whether the Chicago, Rock Island & Pacific Railway Company owned the ties or whether the said A. P. Burton owned the ties. Your petitioner shows that there was a trail or path used by the public in going to and from the ice house, which was located near the Chicago, Rock Island & Pacific Railway Company's tracks, and that it was the custom of families residing in certain sec...