Doyle v. Thompson

• Decision Date: 08 February 1951
• Docket Number: No. 3337,3337
• Parties: DOYLE et al. v. THOMPSON et al.
• Court: Court of Appeal of Louisiana — District of US

Page 505

50 So.2d 505

DOYLE et al. v. THOMPSON et al.

No. 3337.

Court of Appeal of Louisiana, First Circuit.

Feb. 8, 1951.

Murray Anderson, Lake Charles, for appellants.

Milling, Godchaux, Saal & Milling, New Orleans, J. R. Stewart, Lake Charles, J. B. Nachman, Alexandria, for appellees.

DORE, Judge.

As the widow of Curtis Doyle and natural tutrix of four minor children born of her marriage to him, plaintiff has sued Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, and E. D. Higdon, engineer on one of the Missouri Pacific's trains, asking for damages because of Curtis Doyle's accidental death on the night of July 29, 1950. For herself plaintiff seeks $64,460 and for the benefit of the minor children she seeks $76,460. The petition sets out that Doyle was 48 years of age, with a life expectancy of 22 years; that he was employed by Penton Lumber Company of DeQuincy as a boiler fireman at a salary of approximately $55 per week; and that he was the only means of support for petitioner and the four children. After stating in paragraph No. 11 that at a point about 1/2 mile east of DeQuincy the Missouri Pacific tracks runeast and west between State Highway No. 7 on the north and the properties of Penton Lumber Company on the south, with approximately one hundred feet between the highway and the lumber company properties, the petition then states in paragraph No. 12, 'That on the night of July 29, 1950, at approximately 10:55 P.M. the said deceased, Curtis Doyle, was walking in an easternly direction along the South side of the aforesaid railroad tracks owned and operated by defendants at a point directly North of the said property of the Penton Lumber Company; that as the aforesaid deceased reached a spur switch and spur track that led into the properties of the said Penton Lumber Company, the deceased saw an oncoming train which was proceeding towards the town of DeQuincy, Louisiana, and in a westernly direction; that deceased stepped as far from said tracks as possible so as to permit the aforesaid train, owned and operated by defendants, to pass safely to the North of deceased; that while said train was in the act of passing deceased, some object protruding from the side of said train struck deceased and caused him to fall underneath the wheels of the passing train.'

In the following paragraphs it is alleged that deceased was found beside the track some 30 minutes afterward, that both legs were severed near the knees, and that he died about seven hours after the accident. Paragraph No. 17 then recites:

'That the aforesaid accident which took the life of the said Curtis Doyle was caused exclusively and solely by the negligence of said defendants in the following, but not exclusive respects:

'1. In not keeping a proper look-out of the road bed ahead of said train.

'2. In permitting an object of sufficient length and of such nature to protrude from said train which might foreseeably cause great personal injury or death to any persons standing near said train.

'3. In not properly checking each box car at each station for defects.'

In Paragraph No. 20 it is alleged on information and belief that 'E. D. Higdon was the engineer running the aforesaid train or engine, and that he was acting in the course and scope of his duties * * *.'

The two paragraphs above were copied verbatum here because there are no other allegations of negligence in the petition. Nor is there any allegation to show why or by what authority the deceased was walking along the side of the railroad track.

The defendants were represented by separate counsel, but exceptions of no right or cause of action were filed on behalf of each of them. After trial of these exceptions the lower court, for oral reasons assigned, found that the plaintiff had no cause or right of action under the allegations of her petition and maintained the exceptions of both defendants.

There is no difficulty in upholding the trial court's decision that plaintiff did not allege a cause or right of action against the engineer, Higdon. There is no showing that he had any supervision over the loading or inspection of the train or any control over any part of it other than the engine. Nor is it alleged that he had any responsibility for seeing that the train was safe and free from defects. We feel that the statement in 51 Corpus Juris 417, under the title 'Railroads', Sec. 37, that the conductor is 'the general agent of the company so far as concerns the direction and immediate management of the train when it is out on the road,' is a correct statement concerning the supervisory responsibility of the various railroad employees, and that if an obstruction was protruding from the side of the train it was the fault of the conductor and not the engineer. At any rate, there is no allegation that the engineer was in any way responsible for the presence of the alleged obstruction.

While it is alleged that there was negligence on the part of the engineer in not keeping a proper look-out of the road bed ahead of the train this charge is negated by other allegations to the effect that the decedent saw the train coming and stepped as far from the track as possible so as to permit the train to pass safely. Assuming those allegations to be true, then if the engineer was looking he saw the decedent step aside, so there was no cause for him to slow or attempt to stop the train. We fail to see how his action or inaction could have contributed to the accident.

Whether plaintiff has stated a right or cause of action against Guy A. Thompson, Trustee, has been more difficult to decide. Defendant has argued that the only allegations of fact applying to the cause of action are found in paragraph 12 of the petition; that paragraph 17 contains only conclusions of the pleader rather than allegations of fact. With this we cannot agree. Paragraph 17 might contain conclusions of the pleader, but they are nevertheless allegations of fact and cannot be disregarded. Defendant has further argued that the plaintiff has failed to allege that defendants were guilty of any negligence whatsoever; but in the face of paragraph 17 and the last clause of paragraph 12 the argument is without strength. Likewise we are not impressed with defendant's argument that the petition affirmatively states that the deceased was guilty of gross contributory negligence. It is not necessarily negligence to walk along a railroad track; and the petition states that the deceased stepped as far from the tracks as possible so as to permit the train to pass safely.

Although plaintiff has not cited the article, her action is predicated generally on the principle set out in Civil Code Article 2315, that 'Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it * * * .' The main and only real basis for the exceptions filed by defendant is that the petition indicates that the deceased was a trespasser on defendant's track and that the only duty owed to him was not to wantonly or willfully injure him, and that there were no allegations indicating willful injury.

The defendant has cited five Louisiana cases and one paragraph from Corpus Juris. In Morris v. Great Southern Lumber Co., 132 La. 306, 61 So. 383...