Gragnon v. City of New Orleans

• Decision Date: 04 June 1928
• Docket Number: 10,646
• Citation: 118 So. 791,9 La.App. 76
• Court: Court of Appeal of Louisiana — District of US
• Parties: GRAGNON v. CITY OF NEW ORLEANS

118 So. 791

9 La.App. 76

GRAGNON v. CITY OF NEW ORLEANS

No. 10,646

Court of Appeals of Louisiana, Orleans

June 4, 1928

Rehearing Refused July 7, 1928.

Writ of Certiorari and Review denied by Supreme Court October 3 1928.

Appeal from Civil District Court, Div. "E." Hon. Wm. H Byrnes, Judge, and a jury.

Action by Mrs. Amelia Gragnon, wife of Stanley Thomas Rodick against City of New Orleans.

There was judgment for plaintiff and defendant appealed.

Judgment affirmed.

Eugene Saunders, G. B. Harrison, Jr., of New Orleans, attorneys for plaintifff, appellee.

W. McL. Fayssoux, McCloskey and Benedict, of New Orleans, attorneys for defendant, appellant.

OPINION

WESTERFIELD, J.

Plaintiff, an elderly lady who resided in Algiers, was injured in crossing the tracks of the Public Belt Railroad operated by the City of New Orleans. A jury awarded her $ 8675.00 as damages for personal injuries and the City of New Orleans, defendant herein, has appealed.

The accident occurred at the foot of Canal Street at about 5.30 p.m., January 19, 1922. Plaintiff, in company with her daughter, was walking toward the ferry landing intending to cross the river to Algiers. It appears that there is a plank walk crossing the several tracks on the river front for the use of pedestrians and that as plaintiff and her daughter neared the tracks a slowly moving train of the Public Belt was approaching and that plaintiff found herself in a position of peril and either fell down or was knocked down by being struck by the side of the engine, which was pulling the train. It is not clear as to exactly how she was injured, but, it is immaterial, because, if plaintiff's dilemma was due to the fault of defendant, the responsibility for the consequences of a fall caused by terror and excitement would be as great as if the injury were due to a fall caused by striking the engine.

There is the customary conflict in the evidence. Plaintiff and her daughter testify that there was no warning of the approach of the train and no flagman, where a flagman should have been. The train crew assert that the flagman was at his post and warning bells were ringing continuously.

On one point all are agreed. There was a box car parked on the crossing. Plaintiff says there were three box cars and that their presence obscured her view and caused the accident. Defendant concedes the presence of one box car but denies that it would have caused the accident and insists that it was plaintiff's duty to peer around the box car before attempting to cross. Citing Barnhill vs. Texas & Pacific R. R. Co., 109 La. 43, 33 So. 63; Sutton vs. Lee Logging Co., 121 La. 557, 46 So. 649; 33 Cyc. p. 1018.

The cases cited, if they be pertinent in other respects, deal with the question of contributory negligence. We quote from the Bornhill case, a case which is closest in analogy:

"If the box car upon the switch was in close proximity to the crossing it was Barnhill's duty to have peered around its side cautiously before venturing upon the main track, and had he done this there was nothing to have prevented his observing the approaching train."

"To have stepped suddenly from behind the box car on the main track was the height of imprudence."

"A plaintiff who has contributed proximately to an injury cannot recover even if he succeeds in proving fault on the part of another."

But in the case at bar there is no plea of contributory negligence, consequently we are only concerned with defendant's negligence vel non.

Whether proper signals were given or not, we are unable to determine from the evidence, all of which is given by interested parties. But defendant accepts full responsibility for the presence of the box car where it served to obscure the view of the approaching train. It may be that plaintiff should have exercised greater caution and perhaps she should have "peered around its side cautiously before venturing upon the track" but we are relieved from considering her contribution to the accident, since we are convinced that defendant was...