Gibbons v. N. O. Terminal Co.

• Decision Date: 05 January 1925
• Docket Number: 8738
• Citation: 1 La.App. 371
• Court: Court of Appeal of Louisiana — District of US
• Parties: WILL J. GIBBONS v. N. O. TERMINAL CO., ET AL., Appellants

1 La.App. 371

WILL J. GIBBONS v. N. O. TERMINAL CO., ET AL., Appellants

No. 8738

Court of Appeals of Louisiana, Orleans

January 5, 1925

Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.

Plaintiff's automobile and defendants' cars collided, resulting in damage to plaintiff and to his auto for which he sues defendants.

Judgment for plaintiff.

Defendants appealed.

Judgment reversed.

Judgment reversed.

Henry Cooper & Westerfield, Scott E. Beer, attorneys for plaintiff appellee.

Monroe & Lemann, W. J. Suthon, attorneys for defendant, appellant.

CLAIBORNE J. Judge Westerfield, being of counsel, being recused.

OPINION

CLAIBORNE, J.

Plaintiff 's automobile and defendants' cars collided, resulting in damage to plaintiff and to his auto for which he sues defendants.

The plaintiff alleged "that on April 9th, 1921, at about 2:25 p. m. he was driving his auto on Bienville street in the direction of the lake; that as he approached the intersection of Bienville and Basin streets, he saw the gates at said intersection, which are controlled and operated by defendants up or open, and without a flagman of either company at said intersection, and without danger signals of any kind being displayed at said intersection, to warn vehicles of the approach of any train on the tracks of said defendant companies which said tracks intersect Bienville street on Basin street; that as the traffic is in the direction of down-town on the river side of Basin street the attention of petitioner, after he saw the gates open and no signals displayed and no flagman giving warning of any danger, was directed up Basin street for the approach of vehicles going in a down-town direction, and seeing no down-town traffic and seeing the gates open, and no warnings of any kind displayed, petitioner although he had come almost to a full stop, did put on speed in order to cross the intersection of Bienville and Basin streets on the Railway tracks thereon; that as petitioner was about to reach the said track he heard some one shout "stop" and on looking down Basin street, he saw a train of passenger cars propelled by an engine of the New Orleans Terminal Co., backing into the Basin street station; that the said train of cars had been coming up very quietly, without warning, and petitioner's first intimation of its approach was the shout of said unknown party to stop; that petitioner as soon as he heard the shout "stop", applied the brakes and did all in his power to bring his automobile to an immediate stop, but without complete success, his automobile coming to a standstill with its front wheels on the track on which said train of cars was backing into the Basin street station; that said train hit the petitioner's automobile and demolished it, and seriously injured petitioner; that the collision was the proximate consequence of the gross negligence of the defendants; that by Ordinance No. 1615 N. C. S. it is made the duty of the defendants to install gates at such crossings and to have at said gates an operator, and to keep said gates closed in case of danger, or to have proper signals of danger at such places; that the open gates and absence of an operator or of danger singals was an invitation to petitioner to pass through said gates. The plaintiff claimed $ 750 for the value of his auto and $ 3,000 for physical injuries to himself.

The defendants admitted the collision but denied all other allegations of the petition, and charged "contributory negligence on the part of the plaintiff, barring his recovery".

There was judgment in favor of the plaintiff against the New Orleans Terminal Company for $ 800 for his auto and for $ 1,750 for himself and defendants have appealed.

Ordinance 1615, is filed in the transcript. It is so long that we can reproduce only excerpts from it. Secs. 7 and 9; route; along Carondelet Walk, "into the neutral ground of Basin street, and thence up said neutral ground to Canal street, with as many tracks as may be necessary to make said neutral ground available for the passenger depot hereafter referred to".

Section 5 "That said Company, its successors, and assign, shall have the right to construct, maintain, and operate a passenger depot in the neutral ground of Basin street, from Canal to the west side of Bienville street, and to that end the neutral ground shall be widened six feet on each side from Canal street to the Basin and the roadway across the neutral ground of Basin, opposite the en trance of Customhouse street, shall be closed with gates or doors, which shall be kept open at all times except when trains are entering or departing from said depot or when trains are standing on said tracks".

The ordinance does not require an operator at the gate, nor that it should be closed in case of danger.

In the transcript there are also photographs of the defendants' railroad station on Basin street.

They represent the River side of the station, from the upper side of Bienville street down to about one hundred feet or more along Basin street towards Conti, being the whole length of the station. From those photographs it appears that the whole of that side of the station is enclosed by an iron railing or bar-fence about two-thirds of the height of a passenger car, and at a distance of three feet from the track nearest the river. The bars of the railway are several inches apart and permit a clear view through them and above them of cars within the bars and within the station.

The plaintiff testifies he saw cars within the station.

The gate is the width of the street and made with the same kind of iron railing.

It also appears that from Bienville street down Basin street in the direction of St. Louis street, two squares below, the view is unobstructed in any manner and that plaintiff could see cars on the track furthest from him as far as Conti street. Ordinance 6173, was also offered in evidence; but as the accident happened on April 9th, 1921, and the Ordinance was adopted April 19th, 1921, it can have no place in this case.

It also appears that plaintiff was not a stranger in that neighborhood. He testifies:

Q. Are you familiar with that neighborhood?

A. No, sir.

Q. Did you ever drive through there before?

A. I have been, and the gates at that time were closed. I have been in and out Iberville street.

Q. Have you ever been there when the trains were passing?

A. Yes.

Q. Were the gates closed or open?

A. Closed.

Q. Have you ever been there when the gates were open and passing through?

A. Yes.

There is no controversy about the facts of the case. The plaintiffs' auto was moving very slowly. It had come almost to a stop on reaching Basin street, and had no distance to pick up speed before it reached the tracks except the width of the street.

When the plaintiff got about the middle of Basin street, some one called out "stop", and he put on the brakes, and his front wheels were on the front platform of the train which hit him, about the middle of the gate and jammed him between a pillar of the gate and the train.

The train of cars, as testified by a companion of plaintiff in his auto, at the time of the accident, "was apparently dragging slowly along", or as stated by other witnesses, at about five or six miles an hour.

The train consisted of four passenger cars, and two baggage cars which were being "headed in", or pushed into the station by an engine. Upon the platform nearest Canal street of the passenger car nearest Canal street were two employees of defendants standing upon the steps on either side of the car.

One was handling the "monkey tail" hose, which is a whistle for stopping the train, called an air whistle; he was blowing it frequently going into the station, all the way from St. Louis street in; when he reached ten feet of the crossing he saw plaintiffs car turned toward Canal street with its wheel on the track; he applied the air on the emergency brake to stop at once; he stopped within thirty feet; the engineer's brake is not as powerful as the air brake. The other man was also acting as guard or watchman and corroborates the testimony of the man handling the monkey tail.

The law makes it the duty of pedestrains and drivers of vehicles, upon approaching railroad tracks to stop, look, and listen.

116 U.S. 366, Nos. 8288-9286, Ct. App., 168 F. 21.

Ellen Murray vs. Pontchartrain Railroad Company, 31 La.Ann. 490.

Mrs. B. Hauch vs. Hernandez, 41 La.Ann. 992, 6 So. 783.

Herman Herlisch vs. The Louisville, New Orleans and Texas Railroad Company, 44 La.Ann. 280, 10 So. 628.

Barber Asphalt Paving Company vs. H. R. Gogreve, 41 La.Ann. 251, 5 So. 848.

Joseph Vincent vs. Morgan's Louisiana and Texas Railroad and Steamship Company, 48 La.Ann. 933, 20 So. 207.

Hoelzel vs. Crescent City R. Company, 49 La.Ann. 1302, 22 So. 330.

Dieck vs. New Orleans City and Lake R. Company, 51 La.Ann. 262, 299, 124, 25 So. 71.

Tatum vs. Rock Island, A. and L. R. Company, 124 La. 921, 50 So. 796.

State vs. Besancon, 128 La. 85, 54 So. 480.

Burke vs. New Orleans Ry. and Light Company, 133 La. 369, 63 So. 51.

Callery vs. Morgan's Louisiana and Texas R and S. S. Company, 139 La. 763, 72 So. 222.

Howell vs. Vicksburg S. and P. Ry. Company, 144 La. 427, 80 So. 613.

Lampkin vs. McCormick, 105 La. 418, 29 So. 952.

Ross vs. Sibley, 116 La. 789, 41 So. 93.

It is not required, that under the jurisprudence of this State, that vehicles should come to a complete stop. In Aymond vs. W. U. Telegraph Co., 151 La. 184, the Supreme Court said on p. 187:

"As to the obligation to stop before crossing a railroad track, that must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position of absolute immobility but...