Harrison v. Louisiana Western R. Co

• Decision Date: 20 January 1913
• Docket Number: 18,910
• Citation: Harrison v. Louisiana Western R. Co, 61 So. 782, 132 La. 761 (La. 1913)
• Court: Louisiana Supreme Court
• Parties: HARRISON v. LOUISIANA WESTERN R. CO

61 So. 782

132 La. 761

HARRISON v. LOUISIANA WESTERN R. CO

No. 18,910

Supreme Court of Louisiana

January 20, 1913

On Rehearing, April 28, 1913

L. A Goudeau, of Lake Charles, for appellant.

Denegre & Blair, of New Orleans, and Pujo, Moss & Williamson, of Lake Charles, for appellee.

MONROE J., concurs in the decree.

OPINION

PROVOSTY, J.

In the afternoon, at about 6 o'clock, in July, on a bright day plaintiff's husband, an old negro about 65 years old, was walking into the city of Lake Charles on the right of way of the defendant railroad company on his way home from his farm about a quarter of a mile out from the city on the railroad with a sack of watermelons on his back, and had reached a point some 300 feet inside of the limits of the city, and within 200 feet of the first street crossing, when defendant's fast passenger train, coming from the rear, struck and killed him.

This right of way has five tracks and is inclosed by wire fences at the sides and cattle guards and fences, with steps over them, at the street crossing. The tracks go east and west. The old man and the train were going west.

The engineer's version is that the old man was walking on the cinder path between the track on which the train was and the track on its right, at a perfectly safe place, but that, when the train was within 60 or 80 feet of him, he turned to the left and stepped upon the track, too late for the accident to be avoided.

Defendant's learned counsel call attention to the fact that the old man's home was south of the track which he thus fatally stepped upon, and that therefore, to reach his home, he would have had to cross this track sooner or later, and they suggest that he was probably attempting to do it then.

We think, however, that plaintiff has established that the old man had walked upon the ends of the cross-ties a distance of some 80 feet before he was struck, and that the reason of his deviating from the cinder path and stepping upon these cross-ties was not as suggested by defendant's learned counsel, but was in order to give a wider clearance to a switch engine which was standing upon the track to his right.

And we think that plaintiff has further established that the engineer failed, as the train came nearer, to give any alarm whistle to warn the old man of his danger; and we agree with plaintiff's learned counsel that this was most probably due to the fact that just at the time when he should have done so, which was when he was yet about 800 feet from the old man, he had concentrated his attention upon the switch engine, which was standing on the side track, and which had caused the old man to step out of the cinder path and upon the ends of the crossties.

This failure on the part of the engineer to look ahead was culpable negligence. Especially that this place was much used by pedestrians, there being no other way along there, and he must have known this, and the defendant company was also culpably negligent in the excessive speed of the train which was going at some 30 or more miles an hour, although by ordinance of the city the speed of trains within the city limits was restricted to 15 miles an hour.

The sole question must therefore be whether there was not such contributory negligence on the part of the old man as to preclude recovery.

That he was negligent in going upon this track without looking and in thus remaining upon it unmindful of the danger, there can be no question. He was possessed of all his faculties. His sight and hearing were good. Had he looked, he would have seen this fast-coming train about 1,000 feet away, for the track was straight and level for miles in that direction and unobstructed. That he did not hear is accounted for by the fact that this train was coming with steam shut off, of its own momentum, and, therefore, almost noiselessly, while the switch engine which was passing and a local passenger train which stood upon the track to the left of the incoming train were making more or less noise. Doubtless this same switching engine is responsible for the attention of the old man not having been roused by the whistle of the incoming train at the city limits, for the train did whistle at the city limits; he may have thought that the whistle was that of this switch engine. He remained upon this track,...