Hollinquest v. Illinois Cent. R. Co.

• Decision Date: 01 December 1954
• Docket Number: No. 8156,8156
• Citation: 76 So.2d 568
• Parties: Hardy HOLLINQUEST et al., Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 568

76 So.2d 568

Hardy HOLLINQUEST et al., Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.

No. 8156.

Court of Appeal of Louisiana, Second Circuit.

Dec. 1, 1954.

Fred W. Jones, Jr., Ruston, for appellants.

Thompson, Thompson & Sparks, M. C. Thompson, Sr., Monroe, A. K. Goff, Jr., Ruston, for appellee.

AYRES, Judge.

Plaintiffs, father and mother of John Lee Hollinquest, about 16 years old, brought this tort action to recover of the defendant $40,150 damages alleged to have been sustained by them as the result of the death of their son.

They alleged that on the night of July 24, 1953, about 11:40 o'clock P. M., their son was lying on defendant's railroad line between and parallel to the rails, and that while in this position he was struck and instantly killed by one of defendant's trains. They also alleged that their son was in such a physical condition due to causes unknown to them that he was neither aware of the danger of his position nor cognizant of his peril and that he was unable to get off the track by his own power of locomotion before defendant's train struck him. Plaintiffs charged defendant with the following acts of negligence.

1. Failure to so regulate the speed of its train as to be able to stop it on the sudden appearance of a person in an incapacitated condition on its track;

2. Failure to give proper signals, and

3. Failure to keep a proper lookout for objects on its railroad line.

In the alternative, plaintiffs invoked the discovered peril or last clear chance doctrine on the theory that defendant's train crew saw or should have seen decedent's position and peril in time to stop the train before striking him.

Defendant denied that it was negligent in the operation of its train. It averred that John Lee Hollinquest was dead when struck by its train, and if not dead at the time of the accident, the proximate cause of his death was his own gross negligence in failing to use his own sense of sight or hearing to protect himself from harm or injury and in placing himself voluntarily and unnecessarily in a position of peril and danger on defendant's railroad or between the rails of its main line track. Contributory negligence of decedent was specially pleaded.

In rejecting the demands of plaintiffs, the trial court said:

'This case presents a rather unusual situation of facts, but the undisputed facts are that the boy, John Lee was lying some 120 or 150 feet East of the Grambling crossing, parallel with the railroad ties, and wearing dark clothes, that he was seen by the engineer operating the train some 200 feet before the train ran over and destroyed his body, and from the testimony of the expert witnesses and the jurisprudence, the train could not have been stopped within that distance, nor could it have been stopped in less than 1,200 feet. The engineer or brakeman could not see a person standing erect until they reached within 800 feet of said person, and it is to be recognized that a person lying along the rails could not have been seen within that distance, or possibly less than half that distance. The Court is convinced that the plaintiffs have failed to make out their case by a preponderance of evidence, even though there exists certain elements which might show the defendant liable, but this evidence is not sufficient to overcome the burden that rests upon the plaintiffs.'

From the judgment, plaintiffs appealed.

Defendant's railroad line extends generally east and west through Lincoln Parish and through the unincorporated Village of Grambling therein. A state asphalt topped highway runs north and south, constituting the main street of the village, and crosses the railroad in a northern section of the village. About 100 feet east of the aforesaid crossing begins a deep railroad cut of an average depth of approximately 10 feet, with an average width from 50 to 60 feet. Within the cut on the north side of the track is a drainage ditch about 4 feet deep and 15 feet wide in the immediate vicinity of the spot where decedent's body was first struck. This ditch increases in depth and in width to approximately 30 feet as it extends about 500 feet east of the crossing.

Two houses are located on the north bank of the aforesaid railroad cut and two others on the south side of the railroad tracks, all of which are inaccessible to the railroad except by first proceeding to the aforesaid highway and entering the cut at or near the crossing. These four are the only houses in the immediate vicinity of the cut; however, others are more distantly removed. There are four stores in the village on the south side of the track, the nearest about 30 feet from the railroad right of way, and one store on the north side.

The community making up the Village of Grambling centers around Grambling College, the campus of which is located 900 feet south of the railroad right of way. Grambling College has an enrollment of 1735, 1100 of whom live on the campus and another 150 in the immediate community, and exclusive of these, the village has a population of 675. Notwithstanding, however, the immediate scene of the accident was not in a densely populated community (being to the north of the principally populated area) within the rule requiring railroads to exercise a high degree of care in the operation of their trains and to have their trains under such control as to be able to bring them to a stop should an emergency arise. The evidence does not show frequent and extensive use of defendant's tracks as a footpath. The few houses alongside the embankment can not be reached by use of the tracks due to the railroad cut and the ditch.

An analysis of the testimony warrants the conclusion there was no well beaten path on or along the railroad tracks and that the accident did not happen in a thickly populated or suburban area. The findings here as to the physical surroundings of the scene of the accident are similar to the facts found and described by this court in Neal v. Louisiana & Arkansas Ry. Co., 17 So.2d 374, 376, wherein it was stated:

'* * * there are no foot-paths or trails along or across the railway tracks in the vicinity of the accident, nor is there any conclusive evidence which would indicate that the tracks were used to any material extent or degree by pedestrians. Indeed, there is no evidence there was any reasonable or practical necessity for the use of the tracks in proceeding from one given point to another, even in the nature of shortcuts between any defined points'.

Defendant's railroad track was straight for a considerable distance from the west, from which defendant's train approached, and for approximately a quarter of a mile east of the...