Churchill v. Texas & Pac. Ry. Co

• Decision Date: 01 May 1922
• Docket Number: 24838
• Citation: 151 La. 726,92 So. 314
• Parties: CHURCHILL v. TEXAS & PAC. RY. CO
• Court: Louisiana Supreme Court

92 So. 314

151 La. 726

CHURCHILL v. TEXAS & PAC. RY. CO

No. 24838

Supreme Court of Louisiana

May 1, 1922

Rehearing Denied by Division A June 10, 1922

Appeal from Thirteenth Judicial District Court, Parish of Rapides J. A. Williams, Judge.

Action by Arnold L. Churchill against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Spencer Gidiere, Phelps & Dunbar, of New Orleans, and Peterman, Dear & Peterman, of Alexandria, for appellant.

Blackman, Overton & Dawkins, of Alexandria, for appellee.

DAWKINS, J. PROVOSTY, BAKER and LECHE

OPINION

DAWKINS, J.

Defendant appeals from a judgment in plaintiff's favor upon an action for the death of the latter's father alleged to have been caused through the fault of defendant.

Plaintiff answers the appeal, and asks that the sum allowed be increased to the amount originally demanded.

Opinion.

Plaintiff's said father, John M. Churchill (called "Sam" Churchill), and one V. B. Hayslip, on the afternoon of July 12, 1920, between 3 and 4 o'clock started for a pleasure ride from the city of Alexandria in a direction which led to what was called Seip's spur, or crossing. The automobile in which they were riding belonged to Hayslip, and deceased, as an invited guest, was sitting on the right side of the front seat. The road upon which they were traveling crossed the railroad track of defendant practically at right angles, was graveled, and the car was traveling at a rate of speed of between 12 and 15 miles per hour. On the right, as they approached the crossing, a view of the track was entirely obstructed by a field of green corn until the machine reached a distance of about 50 feet of the track. Hayslip continued to drive at the same rate of speed until they were nearly upon the crossing, when Churchill, discovering the train approaching from his right, called to Hayslip to "look out." The latter, having seen the train about the same time, says that he thinks he speeded up a little in the hope of getting across before being struck, but the pilot of the locomotive struck the front of the car about where Churchill was sitting. The train was running between 25 and 30 miles per hour, the automobile was thrown several feet from the crossing, turned upside down, its occupants were knocked clear of it, and fell some distance beyond the machine. Churchill was knocked unconscious, and died some two or three hours afterwards, while Hayslip was injured, subsequently recovered, and testified on the trial of this case.

The first knowledge the engineer, who was sitting on the opposite side of his engine from which the automobile came, had of its approach was an excited alarm given by the fireman just about the time of the collision. The engineer's view was obstructed by the boiler of the locomotive, and the fireman had been engaged with other duties until an instant before, when he climbed upon his seat in the cab of the engine and discovered the peril of the automobile.

Defendant's Negligence.

The negligence charged to defendant was that the train was traveling at an excessive rate of speed, and no warning of its approach was given. The first ground, i. e., excessive speed,...