Hebert v. Louisiana Western Railroad

• Citation: 104 La. 483,29 So. 239
• Decision Date: 01 January 1900
• Docket Number: 13,724
• Court: Supreme Court of Louisiana
• Parties: MARIE HEBERT v. LOUISIANA WESTERN RAILROAD

29 So. 239

104 La. 483

MARIE HEBERT v. LOUISIANA WESTERN RAILROAD

No. 13,724

Supreme Court of Louisiana

January 1, 1900

APPEAL from the Fifteenth Judicial District, Parish of Calcasieu -- Miller, J.

Paul A Sompayrac, for Plaintiff, Appellant.

Denegre Blair & Denegre and Pujo & Moss, for Defendant, Appellee.

OPINION

NICHOLLS C.J.

STATEMENT OF THE CASE.

The plaintiff, widow of Vilier Hebert, seeks judgment for ten thousand dollars against the defendant company for damages caused her by the killing of her husband, alleged to have been caused by the fault of the said company.

She alleges that, on February 10th, 1900, her said husband was sitting on the track, or right of way of said above named company, at, or near the town of Welsh, in Calcasieu parish, Louisiana, with his head down apparently under an influence that deprived him of the exercise of his senses and strength; that the engineer in charge of and running passenger train No. 9, west bound, operated by said company, had notice of the condition and position of the deceased, on that occasion, when said train was fully six hundred yards from him, and that he could easily have stopped said train and obviated killing her husband, but that he carelessly and in utter disregard of the preciousness of human life, ran said train onward -- struck her husband with same, fracturing his skull, from the effects of which he died within a very short time.

That her husband was guilty of no contributory negligence and that his death was caused by the fault of the employees of said company, their negligence and want of skill.

Defendant, after pleading the general issue, admitted that plaintiff's husband came to his death by accident on February 10th, 1900, while seated on defendant's track, but denies that said accident was due to fault or negligence on the part of the defendant, or any of its officers, agents or employees, and avers that said accident was contributed to and caused by the deceased's own gross negligence in voluntarily and unnecessarily placing himself in a position of obvious danger on defendant's track, and in failing while there, to exercise proper or any care or caution, to avoid being run over by a passing train.

Judgment was rendered in favor of defendant.

Plaintiff appealed.

OPINION.

This suit is brought by Marie Hebert, as widow of Vilier Hebert, claiming damages from the defendant company for the death of her husband. It is claimed that the husband was killed by being struck on the head, by some part of a train which was being operated by defendant's employees, and that the injury was received as the result of gross fault and negligence on the part of those employees.

The evidence shows that the deceased, Vilier Hebert, lived about two and a half miles west of the village of Welsh, in the parish of Calcasieu; his residence being about a quarter of a mile to the south of defendant's tracks. He had lived in this same place for many years and must therefore have been familiar with the whole local situation. The testimony shows that he made a practice of going to Welsh every Saturday morning and returning home in the afternoon. That he made the trip along the defendant company's track, both ways, by walking along the track.

On February 10th, 1900, he made his customary Saturday visit and started homeward in the afternoon. When he had reached a position on defendant's right of way almost opposite his own house, he sat down on the outer edge of the ties or between the ends of the ties, which cross the track. He had been seated at this place about half an hour when defendant's regular west bound passenger train approached him from the direction of Welsh, running at a speed of forty or forty-five miles an hour, struck him on the head...