Campbell & Co. v. Texas & P. Ry. Co.

• Decision Date: 05 February 1934
• Docket Number: 4724
• Parties: CAMPBELL & CO. v. TEXAS & P. RY. CO
• Court: Court of Appeal of Louisiana — District of US

152 So. 351

CAMPBELL & CO. v. TEXAS & P. RY. CO

No. 4724

Court of Appeal of Louisiana, Second Circuit.

February 5, 1934

Wise Randolph, Rendall & Freyer, of Shreveport, for appellant.

Henry W. Bethard, Jr., of Coushatta, for appellee.

OPINION

MILLS Judge.

Plaintiff, assignee of Paul Jones and Annie French, brings this suit to recover of defendant railway company $ 575, the alleged value of ten head of cattle killed, and $ 25 for injuries to another which was struck by defendant's trains operated in the vicinity of Gahagan, Red river parish La., during the month of October, 1931.

Defendant admits the killing of one cow on October 23d and two on October 28th, but claims that in both instances it was without fault as the cattle came upon the track at too short a distance ahead of its train to permit of stopping or checking it in time to avoid striking them. Otherwise, the allegations of the petition are denied.

Defendant is appealing from a judgment for plaintiff in the sum of $ 425, with interest and costs, which appeal has been answered by the prayer of the plaintiff that the judgment be increased to the amount prayed for.

Its right of way being unfenced, the burden is upon defendant to show that it was without fault as to the animals struck within the time alleged. Act No. 70 of 1886. Plaintiff concedes that it has failed to sustain its demand as to the injured cow. The number of cattle killed is fixed at ten and the time as the fall of 1931, by the testimony of defendant's foreman who saw and buried them. He claims, however, that only 3 were killed during the month of October one on the 23d and two on the 29th. As to these three, defendant's fireman and engineer testify to the proper equipment of the train; that the whistle was blown, the bell rung, and the brakes applied; but that the intervening space was too short to avoid hitting them. In the absence of any proof to contradict this testimony, plaintiff's only hope of recovery, as to these three cattle, depends upon the soundness of its contention that the proximate cause of the killing was the negligence of defendant's employees in running its train past the station of Gahagan at a speed of 55 miles per hour. At this place the company maintains only a merchant agent. The station consists of a cotton gin, some section houses, and about a half dozen residences in the vicinity. At one time, about ten years ago, due to an oil boom, it had been quite a busy place.

It was held in Blackburn v. Louisiana Railway & Navigation Co., 144 La. 520, 80 So. 708, 711, that it was negligence for a railroad company to run its trains through "thickly populated towns and cities, by depots and places where people are known to frequent," at high rates of speed. In that case, the locus was Colfax, in Grant parish, a town of considerable size and importance. Railroad companies could not maintain their schedules and render proper service to the public if required to slow down their trains for all stations or crossings. There is no law, except in cities, regulating the speed of trains. Schexnaydre v. Texas & Pacific Railway Co., 46 La.Ann. 248, 14 So. 513, 49 Am. St. Rep. 321. In the open country outside of city limits, any speed is not excessive which is consistent with the safety of the train. There is no law or reason why a railroad company should be obliged to stop all or any of its trains at all stations. Davis v. Alexandria & W. R. Co., 152 La. 898, 94 So. 436; Franklin et al. v. L. & A. R. Co., 10 La.App. 526, 120 So. 679. Its trains are not required to slow down during rainy or foggy weather. Foster v. Texas & Pacific Ry. Co., 5 La.App. 601; Jeter v. Texas & Pacific Ry. Co. (La.App.) 149 So. 144. It is not negligence for a company to run its train at a speed of 57 miles per hour through a hamlet consisting of three stores, a cotton gin, a potato house, cane derrick or rack, three residences, and five tenant houses. Winfiele v. Texas & Pacific Ry. Co. (La.App.) 150 So. 43.

In view of the above testimony and the above decisions, we can find no negligence on the part of the railroad in the operation of its trains and therefore must reject the demands of the plaintiff as to the three head of cattle. As to the other seven, no proof being offered by defendant to discharge the burden placed upon it by the law, plaintiff must recover if the killing in the month of October, and their value has been reasonably proven.

Paul Jones testified that he saw the ten animals during that month; that they were worth $ 575; and that he put in a claim for that amount. Julius Tyler swears that he saw four cows killed on one occasion in October. Mr. Dickson testified that he saw five killed and that, according to his recollection, it was in the latter part of that month. Rosie Jones saw three killed on October 29th, and other cattle killed on three other occasions during the month of October.

For defendant, the section foreman swears that though ten were killed in the fall of 1931, only three met their death in October. He fails to corroborate this testimony as to dates by offering his reports made at the time, or the claim filed by Paul Jones. He does say that he refreshed his memory from his...