Candiff v. Louisville, New Orleans & Texas Railway Co.

• Decision Date: 01 April 1890
• Docket Number: 10,543
• Citation: 7 So. 601,42 La.Ann. 477
• Parties: DANIEL CANDIFF ET AL. v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY
• Court: Louisiana Supreme Court

7 So. 601

42 La.Ann. 477

DANIEL CANDIFF ET AL. v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY

No. 10,543

Supreme Court of Louisiana

April 1, 1890

APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

Branch K. Miller, for Plaintiffs and Appellees.

Farrar Jonas & Kruttschnitt, for Defendant and Appellant.

OPINION

FENNER, J.

This is an action by a father and mother to recover damages for the killing of their minor son by a servant of the defendant company.

The discrepancy between the facts alleged in the petition and those appearing on the evidence is very wide.

The petition discloses that, on May 6, 1889 their son, "took passage for Point Houmas, La., on a train of said company, and duly paid his fare to the conductor of the train;" that at Burnside station, while the train was stopping, he descended from the train; that while thus being at said station, an alarm was raised that a freight car of the train was being broken open and robbed by thieves; that the conductor, brakeman and other employees ran to said car to drive off and capture the thieves, and that the conductor or one of the other employees, mistaking the son of petitioners for one of the thieves, shot him with a pistol, etc.

The evidence discloses a very different state of facts.

Plaintiffs' case rests entirely upon the testimony of a single witness, a colored youth named Esteve, who is contradicted on nearly every important point by other witnesses, and who contradicted himself by inconsistent statements made at different times.

His story is that he and the boy, Candiff, got on top of a car of a freight train of defendant at New Orleans to ride to Kenner; that they gave one of the brakemen of the train 15 cents to let them ride; that before reaching Kenner they called the brakeman, and wishing to go further, gave him a dollar; that, when the train stopped at Burnside station they descended to ease their limbs; that, as they were so quietly standing there, no alarm or excitement existing, the conductor came up to them and shot Candiff, and then putting his pistol at witness' face accused him of breaking into the car, and ordered him to get back into the car. He says distinctly that there was no alarm or excitement, and he heard nothing about a car being broken into until after the shooting.

It is very clear, under this statement, even if true, that Candiff and Esteve were not passengers. They were simply engaged in stealing a ride on defendant's train with the corrupt connivance of a brakeman.

The brakeman of a freight train has no implied authority to bind the company by contracts of passage.

The train had a conductor, as Esteve admits he knew, who had charge of the train, and who alone, if any one, could have accepted these parties as passengers. Reavy vs. R. R. Company, 40 An. 33; Patterson Railway Acc. Law, Sec. 209.

But the brakeman denies the whole of Esteve's story; says he never consented to their riding, and was not aware that they were on the car until just before the train stopped at LaPlace Station, when he discovered them standing on the draw-heads between two cars, and that, at LaPlace, he ordered them off the train, and supposed they had left.

The...