Cherry v. Louisiana & A. Ry. Co

• Decision Date: 27 April 1908
• Docket Number: 16,762
• Parties: CHERRY et ux. v. LOUISIANA & A. RY. CO
• Court: Louisiana Supreme Court

46 So. 596

121 La. 471

CHERRY et ux. v. LOUISIANA & A. RY. CO

No. 16,762

Supreme Court of Louisiana

April 27, 1908

Rehearing Denied May 25, 1908.

Appeal from Second Judicial District Court, Parish of Webster Richard Cleveland Drew, Judge.

Action by John F. Cherry and wife against the Louisiana & Arkansas Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Henry Moore and White, Thornton & Holloman, for appellant.

Sandlin & Robertson and Stewart & Stewart, for appellees.

OPINION

PROVOSTY J.

The plaintiffs sue the defendant railway company for the death of their two little boys, one 6 and the other 10 years old, who were killed upon the Cemetery street crossing of the defendant's railway in the town of Minden by being run over by one of the locomotives of the defendant company. Cemetery street is 40 feet wide, and crosses the yard of the defendant company. It runs east and west, and the tracks upon the yard run north and south. There are four of them -- three side tracks and one main track. The two lads at about 2 o'clock in the day were going west upon Cemetery street in a one-mule wagon driven by their grandfather, Mr. Johnson. They were seated on the floor of the wagon at the tail end facing back with their feet dangling, while their grandfather and his 12-year old son were seated upon the spring seat in front. As Johnshon approached the tracks, there was to his right, or north, and flush with the first track, and 20 feet from the crossing, a large warehouse obstructing his view in that direction, that is to say, in the direction from which the locomotive was coming. At the north end of this warehouse, about 500 feet from the crossing, was a planer mill, making the usual noises of such an establishment. When Johnson reached the first track, he stopped, looked, and listened. As he thus stood, with the head of his mule pointing west and within a few feet of the first track, there were cars obstructing his view on both sides of the crossing. On his right, or north, side there were the following: On the first track, some cars, 30 or 90 feet from the crossing; on the second track, some flat cars loaded with logs, beginning about 20 or 30 feet from the crossing; on the third track, that next to the main track, a long train of cars loaded with logs, beginning some 5 feet upon the crossing and extending a long distance north. The testimony conflicts as to the number of cars on the left of Johnson, or south of the crossing. According to Lee Griffin, whose testimony we have adopted in the matter of the number and location of these cars, there was but one car below the crossing, and it stood 20 or 30 feet or more from the crossing. Not seeing and not hearing anything, and thinking the way safe, Johnson ventured upon the tracks. The distance from the outer rail of the first track to the outer rail of the fourth track was 49 feet. He passed the first, second, and third tracks safely; but on the fourth track, on the other side of the long train of cars which stood upon the third track, a locomotive with tender was coming, and was so close to the crossing, when the mule and wagon appeared from behind the cars that stood on the third track, that a collision was inevitable. The locomotive was backing. Johnson says he did not hear it, and we can well believe the statement, as he would not otherwise have cast under its wheels his own life and the other precious lives in his keeping. His not hearing is accounted for by the fact that the planer mill to his right was making some noise, but more especially by the fact that the track was downgrade and smooth, and the locomotive had shut off steam 275 yards back, and was coming almost noiselessly; the only noise being the rumbling of the wheels.

The seriously contested facts in the case are as to the speed of the engine and as to whether the usual signals by bell and whistle were given.

The crew of the locomotive, and one witness who first saw it when within 30 feet of the crossing, say it was going at from 6 to 10 miles an hour; but, if by this is meant that it was not going faster than was usual upon the yard, the testimony stands in opposition to that of a large number of witnesses whose attention was attracted to it. These witnesses lived in the neighborhood or this yard, and were accustomed to the noises and movements upon it, and the speed of this particular engine would not likely have attracted their attention, if it had not been unusual; and the effect upon the wagon shows that the blow must have been quick and sharp. Every spoke was broken in the two hind wheels, where the wagon was struck. One witness, of more than 12 years' experience as a locomotive engineer, says that his attention was attracted to the engine by the rapidity of its exhaust; that it shut off steam about 275 yards from the crossing, and that he continued to observe it until it was about 75 yards of the crossing, and it was still going about 25 miles an hour. How far beyond the crossing the locomotive ran after the collision it is impossible to know definitely from the conflicting testimony.

The occupants of the wagon were hurled in the air and forward how...