O'Connor v. Illinois Central Railroad Company

• Court: Louisiana Supreme Court
• Writing for the Court: WATKINS, J.
• Citation: O'Connor v. Illinois Central Railroad Company, 10 So. 678, 44 La.Ann. 339 (La. 1892)
• Decision Date: 01 March 1892
• Docket Number: 10,913
• Parties: NICHOLAS O'CONNOR v. ILLINOIS CENTRAL RAILROAD COMPANY

10 So. 678

44 La.Ann. 339

NICHOLAS O'CONNOR v. ILLINOIS CENTRAL RAILROAD COMPANY

No. 10,913

Supreme Court of Louisiana

March 1, 1892

Rehearing refused.

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

T. J Gilloly and Branch K. Miller, for Plaintiff and Appellee.

Girault Farrar, for Defendant and Appellant.

OPINION

WATKINS J.

The father institutes this action for the recovery of $ 25,000 damages, as compensation for injuries inflicted upon his minor child, which resulted in the amputation of his left leg, causing great pain and suffering.

The case was tried by the judge, who found $ 7500 for the plaintiff, and defendant has appealed.

Plaintiff's counsel claims that the case made out by the evidence is that the accident happened on a square of ground belonging to the defendant, bounded by Magnolia, Clio, Locust and Calliope streets, in the city of New Orleans, and which the company used for the storage of old freight cars of sundry kinds, trucks and wheels not in service.

That amongst other things usually stored in this yard were what are called coal-dumps or cars of a peculiar construction, being composed of only two wheels attached together by an axle, and on which is placed a wooden frame-work which extends fore and aft, and may be seesawed on either side of the axle. That this square is surrounded by a plank or board fence, "which, for years, has, at all times, been full of holes, caused by missing planks," through which the children of the neighborhood would pass in and out in going to and returning from play, and where they frequently resorted, being attracted there by the coal-dumps, on which they would amuse themselves; some riding, while others pushed them along the rails. That, in accordance with the established usage of the neighborhood, plaintiff's child went into the yard, in company with a party of children to play, and, while riding on one of these coal-dumps, which was pushed along the track by others, he fell off and was run over by the car, receiving injuries necessitating the amputation of his leg.

It will be observed from the foregoing that plaintiff's reliance is, solely and exclusively, for proof of defendant's negligence, upon the customary and long protracted bad condition of its fence, enclosing the premises above described, which operated an invitation and inducement to children of the neighborhood to resort to the dangerous proximity of these coal dumps, to play.

This theory is combatted by defendant's counsel on the ground that the evidence shows that the employes and agents of the defendant used every reasonable precaution to keep children out of its yards; and that the proximate cause of the accident was the act of the child's companions and older boys, who accompanied him into the yard -- one of whom was an elder brother.

That the whole front of the company's yard, fronting on Locust and Clio streets, is protected by a high, close board fence about seven (7) feet in height, except where it is intersected with public streets, through which there are openings, so as to allow cars to be switched across said streets into other and adjoining squares belonging to the company.

That on the evening of the 23d of July, 1890, the plaintiff's minor child went into the yard, with a party of little comrades, and commenced playing with the wheels on the defendant's tracks, when the accident happened, and injury resulted as stated above.

Taking the statements together, the solitary question of fact mooted, seems to be whether the customary bad condition of the defendant's fence was such as to offer inducement to children of the neighborhood to enter their yard for purposes of amusement and play; and this being determined favorably to plaintiff, the question of law thereon raised is the negligence vel non of defendant under the circumstances related.

In this, as in kindred cases, there are, apparently, many incompatible statements of fact, which we shall not attempt to traverse in detail and reconcile, but rest contented with the announcement of our conclusions on this particular question, after recapitulating the evidence.

The plaintiff introduced several witnesses residing in the immediate vicinity of the place where the accident happened, and who were supposedly familiar with the defendant's premises, from frequent and personal observation; and from their testimony we extract the following synopsis, viz.:

One of them testifies that near the corner of Locust and Clio streets there were two or three of the planks broken off of the company's fence at one place through which he saw persons frequently passing. That it was afterward repaired by the company's employes, and then broken again. That that was the only opening he saw at that time -- there being no openings in the fence on the Clio or the Calliope street side.

This witness was the gentleman who heard the child's cry of alarm, and ran to his relief, and removed the truck-wheel from his broken limb.

Another one -- a little fellow of thirteen years of age, who was one of the companions of the injured boy -- confirms the statement of the witness just referred to, and says that it was through this opening they entered the defendant's yard on the evening of the accident.

Another speaks of two or three openings in this fence, several months previous to the occurrence -- two or three big openings, and about four little ones; the larger ones being about two (2) feet wide. But there was an opening on the Magnolia street side to allow cars to be switched across the street into the adjoining yards.

Another testifies, in a general way, that the fence was "always (at) one time or another broke;" that he frequently "passed through the yard for a short cut;" that he passed through the hole in the fence at the corner of Clio and Locust streets. He only refers to one other hole.

Another describes the same two holes.

Another, one place only, where there was a single plank off. Another speaks of two places; and another of "three or four places where there were planks knocked off."

This is a fair summary of plaintiff's testimony on the subject.

With regard to the length of time these holes remained continuously open, the witnesses differ widely -- some stating for a few weeks, and others for one or two years.

But, on the contrary, defendant's witnesses, while admitting the existence of holes in the fence, deny that same existed for any considerable length of time, and affirm that the fence was frequently repaired, and as frequently broken down again; and, while admitting that children and boys often congregated in defendant's yard -- climbing over the fence, or passing through the holes -- they were just as repeatedly driven out, and warned against trespassing again.

One of the company's employes, a car inspector, states that he has seen boys knock the fence down. He has seen them climb over the fence many a time; and that to keep them out has been a matter of great trouble to him. Has frequently seen the switchman and others drive them out of the yard. He says that he could see no possible way of keeping them out, except by the company detailing a man for that special purpose.

Another, the yard foreman, states that he has frequently driven the children out of the yard, and just as soon as he was out of sight they would come in again. He says it would "require an army of policemen steadily (employed) to keep them out." He states further "that when the fence was fixed, they would get in by way of Magnolia street, where there is a gate, through which the cars pass to and fro, and in and out of the yard. We had locks, and every time they were fixed on the gates, they would break them."

Another, the night watchman, states that he has frequently driven children out of the yard, and has himself nailed up the hole in the fence at the corner of Clio and Locust streets. "They kept me busy getting nails all the time, to keep the planks up. Whenever I saw one down I nailed it up again." Has often seen boys climb that fence, and has thrown them off of it.

Another witness, who lives opposite the corner of Clio and Locust streets, states that he has seen the hole in the fence at that place repaired frequently. Saw it open and then closed; and then saw the boys knock it down again.

Another witness fully corroborates his statement.

The section foreman, whose duty it is to keep the fence in repair, states that he has been engaged in that capacity for twenty (20) years, and during that period of time has resided within a block of defendant's yard, and that he has repeatedly closed the hole in the company's fence at the corner of Clio and Locusts streets; and that he closed it once in May, and again in June, prior to the happening of the accident, on the 23d of July, 1890. That he had occasion to mend it ten (10) or fifteen (15) times a year, on account of boys knocking it down. Says he would repair it on one day and go back on the following day and find it down again.

Another witness, a master mechanic, says that on the identical evening on which the accident occurred, he chased a party of children out of this yard.

On this state of facts was the defendant guilty of negligence, or did the company's agents and employes exercise due care and caution?

It must be borne in mind that the plaintiff is an utter stranger to the railroad company, claiming damages ex delicto, with whom neither the child or its parent had any contractual, or even quasi contractual relations at time of the accident.

And just here we may, with propriety, advert to the views entertained by the judge a quo in respect to the testimony, and which grounded his judgment in plaintiff's favor.

In recapitulating the evidence he...