Harvey v. Louisiana Western R. Co
| Decision Date | 30 January 1905 |
| Docket Number | 15,296 |
| Citation | 114 La. 1065,38 So. 859 |
| Court | Louisiana Supreme Court |
| Parties | HARVEY v. LOUISIANA WESTERN R. CO |
On Rehearing, June 20, 1905. Rehearing Considered.
Appeal from Eighteenth Judicial District Court, Parish of Acadia Conrad De Baillon, Judge.
Action by Emmie Harvey against the Louisiana Western Railroad Company. Judgment for plaintiff, and defendant appeals. Modified.
Laurent Dupre and Denegre & Blair (Farrar, Jonas & Kruttschnitt, of counsel), for appellant.
Medlenka & Taylor (Carleton Hunt, of counsel), for appellee.
BREAUX C. J. PROVOSTY, J., not having heard the argument, takes no part.
This suit was instituted by plaintiff to recover damages in the sum of $ 10,000, arising from an accident in which her husband, W. T. Harvey, lost his life. Originally plaintiff brought suit for $ 25,000 damages. The jury rendered a verdict for the amount claimed. A remittitur of $ 15,000 was entered. The judge of the district court after the remittitur granted a new trial. On the second trial a verdict was returned for plaintiff for the sum of $ 10,000, amount asked by plaintiff. On the second trial the judge rendered a judgment based on the jury's verdict.
From this judgment defendant prosecutes this appeal.
The deceased husband of plaintiff was a night expressman employed by the Wells-Fargo Express Company on the night of February 9, 1903, at Crowley.
There is no reason to infer that he (deceased) was lacking in experience as an expressman, nor that he was not familiar with the location, the track, or the movements of the railroad. On meeting the train with his truck, he was required by the duty incumbent upon him to deliver his packages or to receive the freight consigned to his company from the train and put it on his truck. On the night in question he left his home about the usual hour, and went to the depot to meet the train coming from New Orleans and going west. The train was late. As the train was nearing the depot, he pulled his truck alongside the track and continued to walk, at the same time pulling the truck, in the westerly direction in order to arrive in time at the place where his packages would be received or where he would receive freight. This truck measured four feet wide by ten feet in length. While thus going on his way, he pulled the truck onto the track, or so near that it was struck by the front part of the engine, or pilot beam of the train, and thrown some distance; and while thus hurled it (the truck) struck him a hard blow on the right side of the body, crushed in his ribs, and fractured his legs, which resulted in his death a few hours afterward. The truck was shattered to pieces. In his suffering condition after the accident he was, we infer, unable to give any account of the accident, and gave none.
Plaintiff charges in her petition that the adjacent grounds to the depot and along the track -- that is, between its track and depot -- were dug out, the surface lowered, and that it remained open for a number of weeks, thus reducing the width of the passageway to a dangerous degree.
The second charge of plaintiff is that one of defendant's employes placed a truck loaded with baggage at the end of the obstruction, and left insufficient space between the said obstruction and the railroad company's track for the late expressman to pass with his truck, and that in attempting to pass he could not avoid pulling the truck to and on the track. The insufficiency of light at and about the depot is another cause of plaintiff's charges.
The speed of the train is adverted upon as another cause of the accident.
An ordinance of the municipality of Crowley limits the speed to six miles an hour. The engineer, it is urged by the plaintiff, did not have the train in hand. It is said by witnesses for plaintiff that it ran a number of feet beyond the station before the engineer made the usual stop. Plaintiff also seeks to account for the accident by the statement that on the night of the accident the train passed the water tank without stopping to fill its water tank, and that it came into the depot ground sooner than it otherwise would have done. These are the grounds which, according to plaintiff, constitute the fault and negligence of defendant. Defendant company, on the other hand, says that the deplorable accident was not due to fault or negligence on its part, and that the late Harvey was heedless and negligent in pulling his truck, as he did, too near the track, on which he must have known that the train behind him was coming and was about to pass.
The locality of the accident requires our special attention. The following sets forth features in that direction which do not seem to be disputed by either plaintiff or defendant; such as that the depot is on the north side of the track, and extends from Parkerson avenue east to Avenue F west; that the main line of the railroad passes in front; that there is a platform at about 40 feet from the east end of the depot, and at right angles to this platform that there is a small platform for unloading; that there were two trucks on the passage -- one stationary, left there by some person unknown, and the other pulled by the deceased at the moment of the accident.
The closely contested case leaves only a few uncontested facts regarding the locality and the appliances provided for the workmen.
The disputed facts are the rate of speed at which the train was running; whether the bells were struck and the usual warning given; the place at which the late expressman met with the accident; the light, or rather want of light; the obstruction at the place of the accident; the excavation in front of the depot, which the company had made; the rate of speed of the train after it came within the corporate limits; passageway over which the deceased was pulling his truck; the stopping place of the train, and the place to which it ran on the fatal night to Harvey; and the duties of a night expressman.
With reference to the warning, there is testimony of witnesses for defendant that at the whistling post the steam was shut off and the usual signal given; the speed was reduced, and that the train came into Crowley at the usual rate of speed; that the engine and train were under perfect control; that it stopped at the usual place -- that is, about the west end of the freight depot. The train had a bright light -- acetylene light. The engineer testified that he saw a man pulling a truck right beside the track at a distance of about 70 feet ahead of the engine, near the freight depot, and about 50 feet west of the negro waiting room. He (the expressman) was on the passageway between the track and the depot.
Morgan, a witness for defendant, employe of the Wells-Fargo Express Company, testified that the late express man was "right alongside of the railroad track, by the baggage truck"; that is, when the train was coming in.
This truck, we are informed by other testimony, was there loaded for train No. 8, going east, which was late.
Another of defendant's witnesses (Haley) testified that the stationary truck to which we have before referred as being on the passageway near the unloading platform was about 12 or 14 feet from Harvey when he was picked up. We take it that this was west of the unloading platform, where there was no room for Harvey to pass with a loaded truck standing on the passageway without pulling to and on the railroad track. These were the "obstructions" which, according to a deal of testimony, caused the deceased to veer to his left and onto the track in order to avoid it (the stationary truck or loaded truck), and pass beyond to the place where the train usually stopped. Whether this veering was intentional is not known. It is only known that there were not the usual number of lights, that there was an obstruction on the way.
There were three station lights, and it seems beyond question that one of them was out (burnt out) at the time. The width of the passageway is controverted. We infer that it was not sufficiently wide for two trucks to pass each other in front of the unloading platform, which projected out from the depot to the track, to which we have before referred.
The testimony informs us that the late...
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