Gibbens v. New Orleans Terminal Co.

• Decision Date: 22 June 1925
• Docket Number: 27107
• Citation: 159 La. 347,105 So. 367
• Court: Louisiana Supreme Court
• Parties: GIBBENS v. NEW ORLEANS TERMINAL CO. IN RE GIBBENS

105 So. 367

159 La. 347

GIBBENS v. NEW ORLEANS TERMINAL CO.

IN RE GIBBENS

No. 27107

Supreme Court of Louisiana

June 22, 1925

Rehearing Denied. July 13, 1925

Affirmed.

Scott E. Beer and Henry & Cooper, all of New Orleans, for applicant.

Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for respondent.

THOMPSON J. ROGERS, J., dissents. ST. PAUL, J., concurs.

OPINION

THOMPSON, J.

This suit grows out of a collision between a Dodge roadster, owned and operated by the plaintiff, and a cut of cars coupled to a locomotive of the defendant, and in charge of the latter's employees.

The demand of plaintiff is two-fold -- for personal injuries and for damages to his automobile. There was judgment in plaintiff's favor on both demands, aggregating $ 2,550. The judgment was reversed by the Court of Appeal, and plaintiff's entire demand rejected. The latter judgment is before us for review.

There is but slight discrepancy in the evidence, and no serious disagreement as to the vital and important facts.

The collision occurred at the station crossing on the intersection of Bienville and Basin streets. The terminal station of defendant is located at this point on the neutral ground of Basin street. The depot, platforms, and train shed extend from Canal street to Conti street. On the river side of Basin street there is an open iron or bar picket fence which extends from the rear end of the depot, where the train shed begins, to Conti street, where it ends. The railway tracks, four in number, are within this inclosure; the first track on the river side of Basin street is laid within approximately three feet of the iron fence.

The city, in granting the defendant the right to construct its depot and passenger station facilities and to lay its tracks, exacted that the roadway across the neutral ground of Basin street, opposite the entrance of Customhouse street, be closed with gates or doors which should be left open at all times except when trains are entering or departing from said depot, or when trains are standing on said tracks.

Accordingly, at the intersection of Iberville or Customhouse street with Basin street, the defendant erected an iron picket gate similar in design and height to the fence. The gate operates on rollers, and is opened and closed by hand. When the company extended the train shed, platforms, and iron fence down to Conti street a block beyond Bienville street, though not required by ordinance to do so, it placed a similar gate at the intersection of Bienville street with Basin street.

The plaintiff, accompanied by a friend, was going out Bienville street from the river towards the lake in his Dodge roadster. When the car crossed Rampart street a short block from Basin street, the plaintiff observed that the gates of the crossing were open. He also noticed an automobile about a half square ahead of him pass through the gate and across the tracks. As the plaintiff approached the Basin street crossing, he slackened the speed of his car, but did not stop. He looked, he says, up Basin street towards Canal street for right of way traffic coming down Basin street, and, seeing none, he then looked towards Esplanade, and, seeing no train approaching and hearing no signals or bells, put on power and started across Basin street through the open gate.

At that time the train of the defendant, consisting of four passenger coaches, two baggage cars, and a locomotive, was slowly backing into the station on the first or river side track. When the plaintiff got about midway of Basin street he heard some one call out, "Stop!" and he put on his brakes, but it was then too late -- the collision was inevitable. As the front wheels of the roadster got on the track the train struck the car and jammed it between the gate posts and the side of the coach.

The evidence establishes that when the plaintiff got within 50 feet of the crossing there was no obstruction of his view from either side of Bienville street, and there was no obstruction of his view down Basin street towards St. Louis street for at least two squares, except the iron fence. This fence is about two-thirds of the height of a passenger coach, and the bars are several inches apart and permit a clear view of an approaching train on the inside of the fence.

There was, therefore, no excuse for the plaintiff not to have observed the train after he got within 50 feet of the crossing, if he had turned his eyes in that direction. The rule of law is that a person is held to have seen that which he could have seen and should have seen.

Upon the platform of the front coach of the train as it was backing in were two employees of defendant. One was handling the "monkey tail" hose, which is a whistle for stopping the train called an air whistle. This was being blown frequently all the way from St. Louis street into the station. When the train reached a point within 10 feet of the crossing, the man on the platform of the incoming coach observed for the first time the plaintiff's car turned towards Canal street with its wheel on the track. He immediately applied the air on the emergency brake and stopped within 30 feet, but after the coach had struck the automobile.

There is no negligence imputed to the defendant or to its employees in the handling or operation of the train. The only negligence charged is the fact that the gate at the crossing was left open at a time when it should have been closed, thereby, as claimed, justifying the plaintiff in assuming that the crossing was clear, and that he could go over in perfect safety in so far as moving trains were concerned.

It was 2:30 o'clock in the afternoon. The day was clear, and the atmospheric conditions normal. The plaintiff did not stop at the crossing. He did not look, and he did not listen, at a time when the proper exercise of the two senses would have been effective, and would have avoided the injury to himself and to his automobile.

The plaintiff was familiar with the situation and surroundings. He had been there before. The location of the station, the numerous railway tracks, and the iron fence which inclosed the tracks were of themselves outstanding signals of danger sufficient to have suggested to the plaintiff the duty and the necessity of looking and listening for an approaching train before going upon the track. He should not have closed his eyes and stopped up his ears as it were and ignored altogether the silent but prominent warnings we have mentioned and accepted the mere fact that the gate was open as a license authorizing him to proceed.

Without observing any precaution whatever and with utter indifference to his own safety and that of his friend he "stepped on the gas," and with accelerated speed heedlessly, blindly, and deafly proceeded across the street, through the open gate, and onto the track of the defendant.

The main facts as we have stated them are substantially as found by the district judge and by the Court of Appeal. The trial judge in his written opinion said:

"I am also satisfied that if the plaintiff had stopped, looked, and listened, with the thought in the back of his head of trains, he would have seen this train approaching him and would not have been injured."

The Court of Appeal, in the course of its opinion, said:

"The trial judge, in an elaborate opinion, found as a fact that the plaintiff did not look or listen, because if he had the accident would not have happened. But he concluded that by leaving the gate open the defendant had tacitly told the plaintiff that there was no danger in passing, and had invited him to pass, and was therefore guilty of negligence.

" We are of the opinion, however, that the plaintiff was guilty primarily of such negligence as precludes him from recovery."

As we agree with the trial judge and the Court of Appeal on the ultimate facts as found by both of said courts, we come to the real question in the case, and that is: Does the fact that a gate at a railroad crossing, known to be dangerous and extrahazardous, which is left open at a time when it is required to be closed against traffic, relieve one intending to cross the track from the charge of contributory negligence, when by looking and listening, or by the exercise of ordinary care and prudence, he could have seen or heard an approaching train in time to have avoided a collision with such train?

Or, to state it differently: Is an open gate, under the circumstances stated, to be accepted by one intending to effect a crossing as an invitation to proceed, or an assurance by the railroad company that he can proceed across the track with perfect safety?

It must be observed in the instant case that the crossing was at the station, and the railway tracks were within the inclosure. The railway company was not required to keep a flagman at the crossing, nor to give any signs, signals, or other warnings of the approach of trains than such as were customary and usual in backing trains into the station yards.

There was no omission of duty in this respect, for, as found by all the courts, two men were on the platform of the leading coach as "lookouts," and the whistle of the "monkey tail" was sounded at frequent intervals. Nothing more could have been done by the defendant to advise the plaintiff of the approach of the train except to have closed the gate.

The jurisprudence of this state is uniform to the effect that a pedestrian or a driver of a vehicle upon approaching railroad tracks and public railway crossings must, at his peril, stop, look, and listen before proceeding on the track or to make the crossing, and if he does not do so he is guilty of contributing to any injury which he may suffer, and cannot recover therefor.

In Callery v. Morgan's L. & T....