Callery v. Morgan's Louisiana & T. R. & S. S. Co.

• Decision Date: 09 May 1916
• Docket Number: 20365
• Citation: 72 So. 222,139 La. 763
• Parties: CALLERY v. MORGAN'S LOUISIANA & T. R. & S. S. CO
• Court: Louisiana Supreme Court

72 So. 222

139 La. 763

CALLERY v. MORGAN'S LOUISIANA & T. R. & S. S. CO

No. 20365

Supreme Court of Louisiana

May 9, 1916

Rehearing Denied June 30, 1916

SYLLABUS

(Syllabus by the Court.)

'Because of the fact that a collision between a railroad train and an automobile endangers, not only those in the automobile, but also those on board the train, and also because the car is more readily controlled than a horse vehicle and can be left by the driver, if necessary, the law exacts from him a strict performance of the duty to stop, look, and listen before driving upon a railroad crossing, where the view is obstructed, and to do so at a time and place where stopping looking, and listening will be effective.' See syllabus 168 F. 21, 22, 93 C. C. A. 413, 21 L. . A. (N. S.) 794. This doctrine approved and applied to a case where the auto driver did not stop, or even check his speed, before he collided with a passing locomotive.

The rule of 'last clear chance' does not apply where the negligence of the person injured and of the defendant are concurrent, each of which, at the very time the accident occurs, contributes to it. See Castile v. O'Keefe, 138 La. 479, 70 So. 481, and authorities there cited.

Denegre, Leovy & Chaffe, of New Orleans, and Weeks & Weeks, of New Iberia, for appellant.

Foster, Milling, Saal & Milling, of New Orleans, for appellee.

MONROE, C. J., takes no part.

OPINION

LAND, J.

The following statements are taken from plaintiff's brief:

'J. A. Callery, has instituted this action in the district court of the parish of Iberia, to recover damages arising from the destruction of his automobile and injuries occasioned to his person by a train of the defendant company. From a judgment rendered in favor of plaintiff in the sum of $ 1,900, the defendant has appealed, and the plaintiff has asked for an amendment of the judgment so as to allow him damages in the sum of $ 3,500.'

'In this case, the contention of the plaintiff is that he was approaching a blind crossing; that, before he reached the crossing, he stopped, looked, and listened, heard no train approaching, and proceeded across, when he was struck by a train being backed from his left, which consisted of an engine, with a tender in front, and four box cars attached. The answer is that the defendant gave all legal warnings, did everything in its power to avoid the accident; that the accident occurred through the carelessness of the plaintiff, and consequently it pleads contributory negligence.'

Defendant says in its brief:

'The issues in the case are those arising from plaintiff's attempting to cross a railroad spur track in an auto at considerable speed, without either stopping, looking, or listening, with his body leaning forward, his head down, his hand on the speed clutches, and his attention riveted thereon, while the defendant's train was backing over the crossing with the engine and tender forward, and at the rate of possibly four miles or less.'

Plaintiff's statement discloses that the train and the auto were approaching, at the same time, a street crossing, at a point where the view was obstructed by a house and trees. Such a situation demanded more than ordinary care on the part of the plaintiff and of the train crew in approaching the crossing.

The petition alleges that the plaintiff stopped his car at a distance of 60 or 70 feet from the spur track, and, not seeing any flagman at the crossing or hearing a train approaching, drove his automobile upon said crossing, when the engine and cars ran down upon him, without signals or warnings of any description.

According to plaintiff's testimony, he stopped his car at Bergeron's blacksmith shop to have some minor work done on the machinery, and, after the car was delivered to him, got in the car and looked ahead, and did not see or hear anything; he then started the car on first speed, and drove off, and reached the railroad crossing. In answer to the question what occurred after he reached it, the witness answered:

'That is all I remember. I must have been changing the gear.'

And in answer to the further question, what then occurred, the witness replied:

'The locomotive tender hit me.'

Plaintiff further testified that the distance between the point he started the car and the point where he was hit was, he supposed, about 100 feet; that he was driving about 5 or 6 miles an hour, did not see or hear anything, did not see anybody at the crossing, or hear any bell rung or whistle blown; that after starting his car, he never stopped at all until the engine stopped him.

On recross-examination, the plaintiff was asked the following question:

'Now, please tell me what you remember happening from the time you got in your auto until you were struck.'

To which he replied:

'I got in the auto and started off, and when I got 50 or 70 feet I was in the manner of shifting gears, and whether I finished doing it or not I don't remember; that is all I remember.'

In answer to another question, the plaintiff stated:

'After that, the collision took place, but it was so sudden.'

Plaintiff testified in substance that, in changing the gearing, he had to lean over and look down, and would have had to look up to throw on the power. As the witness stated repeatedly that he did not remember whether he had finished shifting gears when the collision took place, he certainly could not remember looking up and around after the gears had been shifted.

Boiled down, the plaintiff's testimony shows that he got in his car, started off, commenced shifting the gearing of his auto, and was so engaged when the collision took place.

Mr. Bergeron testified as to plaintiff's actions, after his auto was fixed, as follows:

'He started of down the street, and he went, I suppose, i guess about halfway from where I was to the railroad, about 50 or 60 feet, and aimed to shift on the second gear, and, just a little while after he did that, I think he had it in the second gear, and, just as I looked down, the train backed out and he was about the same distance from the track as the train was from the center, and they hit right in the center.'

The same witness testified that a man, who was standing on the step of the tender, had to jump to save himself. The same witness testified that plaintiff started his machine from a point about 200 feet, or a little more than 100 feet, from the railroad track; that plaintiff was leaning over putting on the second speed, and not raise up until he was about 15 or 20 feet from the track; that witness would not say that plaintiff tried to stop, and in fact did not stop at all.

The same witness testified that, on account of trees and bushes it was impossible for a person to see down the railroad track until within a few feet of it. He further stated that the crew did not stop the train, which got off the track and pushed the auto against a gate and destroyed the...