Herlisch v. Louisville, New Orleans & Texas Railroad Company

• Decision Date: 01 March 1892
• Docket Number: 10,729
• Citation: 10 So. 628,44 La.Ann. 280
• Parties: HERMAN HERLISCH v. THE LOUISVILLE, NEW ORLEANS & TEXAS RAILROAD COMPANY
• Court: Louisiana Supreme Court

10 So. 628

44 La.Ann. 280

HERMAN HERLISCH v. THE LOUISVILLE, NEW ORLEANS & TEXAS RAILROAD COMPANY

No. 10,729

Supreme Court of Louisiana

March 1, 1892

Rehearing refused.

APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

Henry L. Lazarus and Lionel Adams, for Plaintiff and Appellee.

Farrar Jonas & Kruttschnitt, for Defendant and Appellant.

OPINION

WATKINS J.

This is an action in damages for serious permanent injuries, sustained by the plaintiff, by reason of his having been struck by one of defendant's locomotives through the gross and culpable fault and neglect of its servants and employes.

The occurrence is alleged to have happened on the evening of the 20th of August, 1889, at the intersection of Clara and Poydras streets, in the city of New Orleans, as the plaintiff was crossing the former, the said locomotive moving westward from the company's depot at the time.

Petitioner charges that from the injuries inflicted he suffered great pain in mind and body, and has, thereby, been rendered unable to perform any labor, or earn the means necessary to support himself and family since the occurrence.

He further charges that the injuries he sustained were the direct result of the gross and culpable negligence of defendant's employes in failing to observe the requirements of law, to properly flag the crossing, to ring the bell, or to blow the whistle, on the approach of the locomotive; also in failing to have a gate, or adjustable bar, or other device to warn pedestrians and prevent their crossing the company's track when same is approaching.

He further specially charges that "the engineer was grossly and wilfully negligent in driving said engine * * * and was reckless in handling same, in utter disregard of the obligations imposed upon him, both in humanity and law."

The amount demanded of the defendant as compensation for injuries thus received by the plaintiff, is $ 30,000.

Defendant's answer is that the plaintiff was injured by and through his own gross fault and negligence, and not by or through the fault and negligence of its servants or employes, plaintiff being a trespasser on its track at the time of the accident.

The case was submitted to and tried by a jury, who rendered a verdict in favor of the plaintiff for $ 5000, but upon rule taken for a new trial, the court awarded the defendant a new trial, and thereupon the jury found for the plaintiff a verdict of $ 10,000. Upon this verdict, defendant failing to obtain a new trial, a judgment was accordingly entered up and it has appealed.

Our only province, therefore, is to determine between the parties the question of negligence vel non, there seeming to be from the general purport of the answer but little doubt of the plaintiff having suffered injury and none of the happening of the accident.

And, in the determination of the question of the defendant's negligence, as well as that of the plaintiff's contributory negligence vel non, the principal and much mooted fact is that of the precise location of the plaintiff when he was overtaken by the defendant's train, the plaintiff's contention being that he was immediately on the crossing, or intersection of Clara and Poydras streets; while that of the defendant is that he was in its yard, which is situated between Magnolia and Clara streets, between the tracks numbered four and five, near the north side of the yard, and a distance of about sixty-five feet from the crossing of Clara and Poydras streets.

On this contention of the defendant, it is claimed that the plaintiff was a mere trespasser, and, therefore, at fault primarily, and guilty of negligence per se, because the whole of the property situated between North and South Poydras streets, adjacent to Clara street, is its private property, acquired by purchase and expropriation -- it having been at one time filled with buildings, since demolished and replaced and overlaid with its tracks and their switch connections, uniting them with its various yards and squares of ground and depots.

To these are superadded others of minor importance which need no particular mention now.

From the record we glean the following salient facts, viz.:

On the morning of August 20, 1889, the plaintiff started from his place of business on Front street, near the corner of Lafayette street, between Prieur and Johnson streets, at the intersection of Poydras and Howard streets.

When he had arrived at this place he found the banquettes were flooded with water from a recent heavy shower of rain, and the waiting rooms of the depot being closed, he passed on the outside and under the shed, which extends west from the depot to the intersection of Freret and Poydras streets, and continued his walk down the north side of the neutral ground between North and South Poydras streets, and had either reached or neared the crossing, or intersection of Clara and Poydras streets -- a distance of three blocks from the end of the shed.

At this point the defendant had in use, on the space intervening between North and South Poydras streets -- which is its private property -- four parallel tracks, numbered, respectively, one, two, three, and four; and, also, another track which extends transversely across the other four, whereby switch connections are formed by the various engines and trains of the company with the several depot yards adjacent to the depot.

While the plaintiff was thus proceeding, he being crippled of one foot slightly, and the night being dark, a switch engine of the defendant shifted its position from the straight track No. 4 to the diagonal cut-off track, and struck him on the left side of his back, inflicting a severe blow at the base of the spine and upon his hip, whereby he sustained serious injuries.

The reason assigned by the plaintiff for his being in that situation was that he was at the time a sufferer from a sore heel, as above stated, and sought to escape the water on the flooded banquettes by resorting to the dry grounds of defendant's location and property, over which he had just walked to the intersection of Clara street when he was thus overtaken.

To this statement both parties substantially agree.

On the disputed question, i. e., the exact point on the defendant's track at which Herlisch had arrived when he was overtaken by its engine and violently knocked down, there is a very great disparity of statement on the part of the witnesses pro et con, those of the plaintiff emphatically asserting that he was manifestly overtaken on the crossing, while those of the defendant are just as emphatic in asserting that the accident happened at a distance of ninety (90) feet from the crossing on the river side of Clara street.

As a witness, plaintiff states that while he was in the act of crossing Clara street, at the intersection with Poydras street, endeavoring to pass obliquely from the north to the south side of Poydras in order to reach a dry banquette on that side, and, having just reached track No. 3 on the south side, he was struck by the locomotive and thrown about ten (10) feet into the...