Hicks v. Texas & N. O. R. Co
Citation | 173 So. 745,186 La. 1008 |
Decision Date | 29 March 1937 |
Docket Number | 34200 |
Parties | HICKS v. TEXAS & N. O. R. CO |
Court | Louisiana Supreme Court |
Writ of certiorari perpetuated, judgments of the district court and Court of Appeal annulled, and judgment rendered.
Alexander C. Granzin and Adam H. Harper, both of New Orleans, for relatrix.
Denegre Leovy & Chaffe and Harry McCall, all of New Orleans, for respondent.
OPINION
This is an action ex delicto to recover damages for personal injuries alleged to have been sustained as a result of the defendant's employee negligently running into the plaintiff with a motor work car. Plaintiff also pleaded the doctrine of last clear chance.
Defendant denied that it was in any way at fault and averred that the plaintiff was guilty of contributory negligence in attempting to cross the tracks without stopping, looking, or listening.
There was judgment dismissing the suit and the plaintiff appealed. The Court of Appeal held that the plaintiff's "own fault was the proximate cause of the disaster" and that the doctrine of last clear chance had no application. 170 So 396. Plaintiff applied to this court for writs, mainly on the ground that the Court of Appeal erred in not permitting recovery as a matter of law on the admitted facts of the case, under the doctrine of last clear chance.
The undisputed facts in the case are as follows:
The defendant has two railway tracks located on its road bed, a north track, which is the main line, and a south track, which is a passing track, both running east and west to the place where the accident occurred in the town of Boutte, St. Charles parish; that at this point there is a 500-foot straightaway in both directions and there is nothing to interrupt one's view; that there is a well-beaten and publicly known foot path across the tracks and the right of way used by people in that neighborhood for several years in going to the post office and the grocery store which are located on the north side of the tracks; that this foot path was not dedicated as a public crossing, the public highway being about 500 feet farther to the east; that defendant's employee was well apprised of these facts, because he states that he lived in the town of Boutte for about six years and that he was familiar with the locus in quo; that on November 1, 1934, at about 4:30 p.m. (a clear, dry evening), plaintiff attempted to cross from the south to the north side of the tracks for the purpose of going to the store located near the post office on the north side of the tracks; that she had crossed the passing or south side track and the space between the two sets of tracks and just as she stepped upon the south rail of the main line or north track, she was struck by a motorcar which had approached from the west, or plaintiff's rear left side, and was going eastward, and she was knocked down between the main and the passing tracks.
Defendant's operator of the motorcar described the accident as follows:
He further stated that from time to time he cut off the motor and let the car coast in order not to get up too much speed so as to be able to examine the wirings attached to the rails controlling the block signals; that from the time he saw the plaintiff stepping on the main line track until the time he cut off the switch, the car ran about 14 feet; that after he applied the brakes, the car continued on, struck the plaintiff, and traveled 6 or 7 feet further.
One of the defendant's mechanics testified that he had examined the car; that the brakes and mechanism were in good order and that under actual test, running between 12 and 14 miles an hour, the car could...
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