Burke v. New Orleans Ry. & Light Co.
| Decision Date | 09 June 1913 |
| Docket Number | 19,277 |
| Citation | 63 So. 51,133 La. 369 |
| Parties | BURKE v. NEW ORLEANS RY. & LIGHT CO. et al |
| Court | Louisiana Supreme Court |
[Copyrighted Material Omitted]
SOMMERVILLE, J., takes no part.
This case was tried twice before a jury. On the first trial, the jury by a vote of 10 to 2 found a verdict for $ 750 in favor of the plaintiff. The trial judge set the verdict aside, and on the new trial the jury found an unanimous verdict in favor of the defendants.
The rehearing was granted mainly on the question of the alleged contributory negligence of the plaintiff, acting as motorman at the time of the accident. Plaintiff admits that he ran his street car into a freight train of the Louisiana Railway & Navigation Company, while it was slowly backing across his front towards the company's bridge over the New Basin Canal. The collision took place at 11:03 p. m. of September 10, 1910. Plaintiff admits that his car was about 35 feet from the railroad crossing before he saw the moving train. Plaintiff evidently did not know that he was near the crossing, and has assigned several reasons for his failure to realize the situation in time to avert a collision. Assuming that the defendants were negligent in not taking proper precautions to guard against collisions with street cars at the crossing, the question remains whether the plaintiff himself could have avoided the accident by the use of ordinary care on his part. Plaintiff knew that the crossing was not lighted, and that no flagman or watchman was there maintained to give warning of the approach of trains over the line of the railroad company.
Plaintiff had served as motorman more than five months, and on the street car line in question had made three separate runs. The accident happened on the fifth day of the last run. In making each trip plaintiff's car crossed the railroad track in going towards Metairie Cemetery, and again in returning therefrom. He crossed and recrossed about once every hour during the evening and night of each day of his run. On the night of the accident he made the return crossing three times after darkness had supervened. On the same night and under the same weather conditions, plaintiff in making his return trip about 11 p. m. ran his car into the freight train on the railroad crossing. If plaintiff saw the crossing at 8, 9, and 10 p. m. and stopped his car as required by city ordinance and the regulations of the street railway company, what prevented him from seeing the crossing at 11 o'clock of the same night? His explanation is that the cars of the freight train passing across his front hid the lights in Tulane and Carrollton avenues, and the darkness prevented him from seeing other landmarks near the street car track. On the first trial of the case, five witnesses, experienced street railway men, testified that a motorman on a car approaching the railroad crossing at night from the direction of Metairie Cemetery could use as landmarks several houses and other objects near the track, and a cross-over switch 330 feet from the crossing. One of these witnesses also testified that the plaintiff was specifically instructed that a stable, two houses, and the cross-over switch were good landmarks to use to locate the crossing.
Some of the witnesses testified that a motorman under such conditions could also see lights in Tulane avenue and Carrollton avenue some two or three blocks on the far side of the railroad crossing. During the second trial a practical experiment was made, in the presence of some of the jurors, and of counsel for all parties, to show the conditions which confront motormen on a dark night when approaching the railroad crossing in question from the direction of the Metairie Cemetery. As far as possible the conditions existing at the time of the...
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