Cavallo v. New Orleans Public Belt R.R. Commission

• Court: Court of Appeal of Louisiana
• Writing for the Court: SAMUEL
• Citation: Cavallo v. New Orleans Public Belt R.R. Commission, 124 So.2d 419 (La. App. 1960)
• Decision Date: 14 November 1960
• Docket Number: No. 21370,21370
• Parties: Petero CAVALLO v. NEW ORLEANS PUBLIC BELT RAILROAD COMMISSION.

Page 419

124 So.2d 419

Petero CAVALLO v. NEW ORLEANS PUBLIC BELT RAILROAD COMMISSION.

No. 21370.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 14, 1960.

Rehearing Denied Dec. 5, 1960.

Certiorari Denied Jan. 9, 1961.

Burglass & Burglass, Harry A. Burglass, Metairie, for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, A. J. Waechter, Jr., New Orleans, for defendant-appellee.

SAMUEL, Judge.

Plaintiff-appellant, Petero Cavallo, instituted suit against the New Orleans Public Belt Railroad Commission under LSA-Civil Code, Article 2315 for damages for the death of Mabel Fitch, whom the plaintiff claims was his wife by reason of an alleged common-law marriage in Texas. The defendant admitted the death but denied the marriage and the plaintiff's right to being suit thereunder, denied any negligence on the part of the railroad, and alternatively pleaded contributory negligence on the part of both the plaintiff and the decedent. Judgment was rendered in favor of the defendant dismissing the plaintiff's suit. From this judgment the plaintiff has appealed, resting his case here on the doctrine of last clear chance or discovered peril.

Our conclusion on the question of liability, based solely on the facts involved in the death, is such that a determination of the validity of the common-law marriage and its recognition or non-recognition by the Courts of Louisiana has become unnecessary and, accordingly, those questions are pretermitted.

The death occurred in the City of New Orleans on August 21, 1957, at about 1:15 a.m. On that date and shortly before that time the decedent, who suffered from a severe mental illness, attempted to kill herself with a knife. She was prevented from doing so by her brother and the plaintiff but managed to escape from them and fled into the streets. She was bareheaded, with her hair in some disarray, barefooted and wore only a skirt and blouse, with the blouse out from the skirt.

The train involved, owned and operated by the defendant and consisting of a diesel engine pulling a 'cut' of thirty freight cars with the front of the engine facing the first car, was on its main-line track near the Erato Street wharf and moving in the direction of Thalia Street, less than one block away. It had just stopped to allow another train to clear and was to stop again at Thalia Street in order to throw the switch preparatory to leaving the main-line. The train was traveling very slowly at a speed of approximately two or three miles per hour. The engineer was on that side of the engine cab opposite from the controls, which were being operated by the fireman. The area, occupied only by train tracks, warehouses and industrial stores was one in which women pedestrians were practically unknown and was fairly well lighted.

The movements of the decedent could be seen only from that side of the train occupied by the engineer whose testimony is the only evidence in the record as to her actions. He first saw the decedent when she was about seventy-five feet away from him and did not see her at any closer distance until after her death. She came around a shed, turned into a roadway, and walked a short distance in the direction...