Culbertson v. Crescent City R. R. Co.
| Decision Date | 06 April 1896 |
| Docket Number | 12,065 |
| Citation | 20 So. 902,48 La.Ann. 1376 |
| Court | Louisiana Supreme Court |
| Parties | JAMES CULBERTSON v. CRESCENT CITY R. R. CO |
Argued March 27, 1896
Rehearing Refused November 16, 1896.
APPEAL from the Civil District Court for the Parish of Orleans Theard J.
O. B Sansum, for Plaintiff, Appellee.
Farrar Jonas & Kruttschnitt, for Defendant, Appellant.
The plaintiff sued the defendant to recover damages for killing his son James, at the upper crossing of Soraparu street, on the night of Sunday, July 7, 1895, at 9 o'clock. The boy was 6 years and 11 months old.
The plaintiff says that his son was standing on the car track, plainly within view; the car moved slowly down, the projecting fender struck him and threw him across the fender frame, and from it, by the car's motion, he was thrown to the track; the fender passed over him and forced his body under the cars, causing almost instant death; that the motorman of defendant's car knew nothing of the accident until some one near from the street shouted to him that there was a child under the car.
That the motorman did cut off the power and applied the brakes, stopping the car within twenty feet from the point at which he thus applied the brakes.
The complaint further is, had the motorman looked down the street he could have seen the child in time to prevent the accident; that he was not watchful and attentive; that he failed to ring the gong.
The defendant denies that its employee was guilty of negligence. The jury found a verdict for plaintiff in the sum of fifteen hundred dollars.
From the verdict and judgment the defendant appeals.
This is another of the sad accidents, the cause of which this court is called upon to investigate and to familiarize itself with, in order to determine if damages are due.
The questions are principally of facts and no controversy in regard to the law arose in argument at the bar.
We take up the review of the facts (the incidents as they happened) according to the order of time. The gong was sounded and the alarm given as the car came down Chippewa, approaching the corner of Soraparu street. The motorman and the conductor were at their respective places, and the former had the electric power and the car brakes under his control.
We set forth the details of the occurrence as near the language of the witnesses, as possible, in view of the fact that some brevity and conciseness are required.
WITNESSES FOR THE PLAINTIFF.
The first who says he saw the accident, the witness Hyland, was about three-fourths of the way on Chippewa, walking up from Philip toward Soraparu street. The boy was standing on the uptown side of Soraparu street, near the track, the car descending, at the time was about one hundred feet from the corner. He says:
Again he states: "Saw the child moving, could not state positively in what direction.
"He may have run across before my attention was directed to him." He says he was struck by the fender.
The companion of this witness, Murphy, who was walking and talking with him at the time, can't say whether the boy was standing on the car track, between the rails, or near the car track. The first witness, Hyland (with whom he [Murphy] was, as just stated), said nothing to him, although he, Hyland, says he saw the boy as he was struck by the fender and dragged.
This last witness, Murphy, states that he had no intimation that anything had happened before he saw the car stop and everybody run to it.
Another witness, Mrs. Nelson, saw the little boy standing on the little bridge over the small gutter, and afterward saw the fender strike him.
WITNESSES FOR THE DEFENDANT.
About the only testimony of any value of the first witness is, that she heard the car bell ringing the alarm at the moment of the accident.
The second witness was sitting about thirty feet from the place of the accident, and was looking in the direction to which the child was running. He thought the child had collided with the side of the car. Upon discovering that he had not, he gave the alarm; the car was stopped within twenty feet, and the child's body removed from under the car.
He answered:
Another witness, Miss Birmingham, was talking with Mrs. Nelson and looking in the...
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