Cowden v. Shreveport Belt Railway Company

• Decision Date: 01 January 1901
• Docket Number: 13,902
• Court: Louisiana Supreme Court
• Parties: F. H. COWDEN v. SHREVEPORT BELT RAILWAY COMPANY

30 So. 747

106 La. 236

F. H. COWDEN v. SHREVEPORT BELT RAILWAY COMPANY

No. 13,902

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the First Judicial District Court, Parish of Caddo -- Land, Judge.

Shepherd & Pleasants, for Plaintiff, Appellee.

Wise &amp Herndon, for Defendant, Appellant.

OPINION

PROVOSTY, J.

The plaintiff's wife and daughter, and another lady and plaintiff's eighteen-year-old son, were returning home about nine o'clock at night, in an ordinary farm wagon drawn by two horses at a brisk trot, in the City of Shreveport. They drove down Marshall street and straight on to cross the track of the defendant company on Crockett street, when one of the electric cars of the defendant company struck the wagon between the front and hind wheels, dragged it about thirty feet, upset and broke it, and threw the occupants to the ground, injuring the plaintiff's wife and daughter.

Plaintiff sues for damages for these injuries, but he cannot recover. It is but another case of people venturing to attempt to cross a street car track without looking to see whether a car is coming. Measurements and experiments as to the reliability of which there can be no question, show that a person standing in the center of Marshall street, thirty-four and one-half feet from the track, on Crockett street, can see one block up Crockett street, and that a person standing on the property line of Crockett street, thirty and one half feet from the track, can see two blocks up Crockett street, and that a person standing on the line of the outer edge of the sidewalk can see four or five blocks up Crockett street. The same experiments show that the view from the outer edge of the sidewalk is unobstructed, and that from the inner edge of the sidewalk, or the property line, it is practically unobstructed. Bearing this in mind, it is impossible to read the testimony of the inmates of the wagon without coming to the conclusion that they attempted to cross the track without looking to see whether a car was coming, and this, under our settled jurisprudence, is contributory negligence, which precludes recovery. Snyder vs. Railroad, 48 Ann. 1; Hoelzel vs. Crescent City Railroad Company, 49 Ann. 1302; Webster vs. N. O. C. & L. R. R., 51 Ann. 299; Farrar vs. R. R. Co., 52 Ann. 410; Dieck vs. Railroad Company, 51 Ann. 265; Posano vs. St. Charles Street Railway, 52 Ann. 245.

(Extract from the testimony of Mrs. Cowden): --

"Q. -- Who was the first to discover the approach of the car?

"A. -- We all discovered it at the same time.

"Q. -- Was or not the car lighted up?

"A. -- It was lighted up.

"Q. -- You knew that the railroad cars ran there constantly and that it was a dangerous place?

"A. -- We frequently crossed the track at the place and knew it was a dangerous place, so checked up.

"Q. -- And knowing it was a place of danger, the horses were checked before you got on the track, into a walk?

"A. -- Yes, sir.

"Q. -- You could not see any car and then you went across?

"A. -- Yes, sir.

"Q. -- In what gait?

"A. -- We went just in a walk across the track.

"Q. -- The car was just a car length away when you started to cross the track?

"A. -- I should think so, because you cannot see the car there; it was just a short distance."

(Extract from the testimony of Miss Grace Cowden): --

"Q. -- Do you know whether his horses' heads were near the track or on it?

"A. -- The horses' heads were close to the track or over it when I saw the car."

(Extract from the testimony of Owen Cowden): --

"Q. -- How far did you say the car was from you when you first saw it?

"A. -- Ten or fifteen feet.

"Q. -- Where was your wagon?

"A. -- The horses heads were on the track.

"Q. -- Before the horses' heads got to the track how far were you from the car?

"A. -- I didn't see the car at all before they were on the track."

Plaintiff argues that granting contributory negligence, defendant had time in which to discover the danger and by ordinary care avoid it; and ought to have done so, under penalty of full responsibility, notwithstanding the contributory negligence. Between that doctrine and the total nullification of the doctrine of contributory negligence, the middle ground is so narrow that it seems difficult to occupy it without a straddle; and the query is whether courts had not better take up apothecary's scales and weigh the respective negligence of the parties, as is done in France and in admiralty, or else firmly apply the broad doctrine of contributory negligence. But this is said merely in passing, for even under this mild form of nullification of the doctrine of contributory negligence, the defendant in this case is not responsible.

Given two streets intersecting at right angles, wide sixty-six feet from property line to property line, and forty-two feet from curb to curb, the sidewalks being of twelve feet, and an electric car moving in the center of one of the streets at a speed of ten miles an hour, and a wagon coming down the center of the other street at a speed of not less than five miles, and probably much more, an hour, and keeping straight on its course, and the car and wagon meeting at the...