Houpy v. M. L. & T. R. R. & S. S. Co.
| Decision Date | 21 January 1929 |
| Docket Number | 10,977 |
| Citation | 119 So. 750,10 La.App. 100 |
| Parties | HOUPY v. M. L. & T. R. R. & S. S. CO |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing Refused February 25, 1929.
Decree Supreme Court, Writ of Certiorari and Review Refused March 26, 1929.
Appeal from the Civil District Court for the Parish of Orleans Division "D". Hon. Porter Parker, Judge.
Action by Mrs. Myrtle Schulingkamp Houpy, dative tutrix of the minors Stephen J. Schulingkamp and Daniel Schulingkamp against Morgan's Louisiana and Texas Railroad and Steamship Company.
There was judgment for plaintiff and defendant appealed.
Judgment reversed.
Suthon Zengel and Daigle, of New Orleans, attorneys for plaintiff appellee.
Denegre, Leovy and Chaffe, of New Orleans, attorneys for defendant, appellant.
STATEMENT OF THE CASE.
This is an action wherein Mrs. Myrtle Schulingkamp Houpy, dative tutrix of the minor children of John Louis Schulingkamp, seeks to recover from the defendant corporation the sum of $ 24,500.00 for damages growing out of the death of the father resulting from his having been killed by a switched car of defendant corporation about 12:45 p. m. on March 26, 1926, on the second main line of the Public Belt Railroad of the City of New Orleans on the river front between Madison and St. Ann Streets. It is alleged that the car was switched by what is commonly known as being "kicked", and that it was left unattended by a brakeman, ran down the plaintiff's father, and that, had the car been attended by a brakeman, he could have prevented the accident.
The defendant alleges that the process of kicking a car for switching purposes in the location where the accident happened was a common practice adopted not only by defendant corporation but by all railroads; that the father of the plaintiff minors was a brakeman for a long period of time working for the Public Belt Railroad; that he was familiar with this practice, assumed the risk of his employment, and, in the alternative, if they were guilty of negligence, that the deceased was guilty of contributory negligence which precluded a recovery.
A jury was prayed for but waived, and the matter was tried before the district court. Judgment was rendered for the benefit of each minor in the sum of $ 5,000.00, and with recognition of the subrogation of the Public Belt Railroad to the sum of $ 1708.76, representing the amount of compensation paid the heirs of the deceased. From this judgment, defendant appealed.
OPINION.The location where the accident happened is on the river front of the City of New Orleans between where St. Ann and Madison Streets, if prolonged across the river front and beyond Decatur Street, would extend. At this location, there is a series of twelve tracks, and the location between the prolongation of St. Peter Street and Governor Nicholls Street is used by the various railroads, including the Public Belt Railroad, for whom the father of the plaintiffs worked as a switchman, and the M. L. & T. R. R. & S. S. Co., as a railroad yard in which switching is done during the entire twenty-four hours of the day.
In the discussion of this case, we are concerned only with the tracks of the M. L. & T., the Public Belt and the two L. & N. tracks. The first M. L. & T. track, if taken at a prolongation of Madison Street, is nearer to the river and adjoining the two tracks of the Public Belt Railroad, which adjoin each other, and then follows the through tracks of the L. & N. Railroad, and then a number of tracks of the M. L. & T. From about midway of the prolongation of Madison and St. Ann Streets, a track of the M. L. & T. crosses over from its track nearest to the river on an angle towards downtown, and crosses into what is known as the "scale house" of said railroad, situated on the inner track and near the corner of the prolongation of St. Philip Street.
At the time of the accident, the switching crew of the M. L. & T. had moved a train of cars from the track nearest the river over across the Public Belt tracks and across the L. & N. tracks to the scale house, and were on their way back for the purpose of diverting one of the cars ahead of the engine to the inner or woods side track of the Public Belt. This is known as the exchange or delivery track whereat the M. L. & T. always delivers cars to be belted by the Public Belt Railroad.
The train to which Schulingkamp was assigned was the Public Belt switching or delivery train on the Public Belt track nearest to the river and adjoining the one upon which the car was switched. He had made, in conjunction with his crew, deliveries of certain cars below the point of Dumaine Street, and had returned with the engineer, he being then on the engine, to the cars which had remained on the Public Belt delivery track, for the purpose of coupling up the engine to the remaining cars and then proceeding downtown. At this juncture, the engine of the Public Belt Railroad was about fifty feet or more on the uptown side of what is known as the "double slip switch." That is a switch situated at the junction of the crossing between the M. L. & T. track, which runs on an angle, as we have afore-described, and the inner Belt track or hop-leg track, as it is called in railroad parlance. In order to execute the delivery of this car of pipe which caused the injury to the hop-leg Public Belt track, it was necessary to divert it at the double slip switch situated at the junction of the Public Belt and the M. L. & T. as afore-described. The process used on this day, and one which the testimony shows has been universally practiced, was to kick the car from the engine, have it take the switch as it reached the junction, which then diverted it from the M. L. & T. to the hop-leg or Public Belt delivery track. At this time, and at the time the Public Belt Railroad engine returned for the purpose of picking up its parked cars, the switchman of the M. L. & T. was approaching the switch for the purpose of throwing it preparatory to the deflection of the car. The foreman of the crew of the Public Belt Railroad engine (the crew in charge of Schulingkamp's switching program) was standing between the L. & N. and the Public Belt tracks about fifty or sixty feet below the switch. He was looking in the direction of downtown, from which the switched car was coming, as he says, watching the car to be switched. The foreman of the other switching crew was standing opposite him between the L. & N. tracks watching these tracks, because they were through tracks, so as to be sure they were clear.
Roberts, the foreman of the Belt crew, testifies that he watched this car until it passed him, and that, as it passed him, as can readily be seen by the angle of the track, it hit the switch, was deflected to the Public Belt track to its ultimate destination, and, from the moment the car passed him, his vision was obscured, and he could not possibly see where Schulingkamp was. Therefore he was clearly not in a position to see where Schulingkamp was from the time the car was kicked until after Schulingkamp was killed.
The switchman who threw the switch for the M. L. & T. testified that he saw Schulingkamp pass on the engine just prior to his throwing the switch, and that Schulingkamp either saw him or should have seen him, as he was obviously going to throw the switch.
Under any circumstances, Schulingkamp had been a brakeman engaged in traffic in this yard for eight years or more and was thoroughly familiar with the processes used, and it was either clear to him, or should have been clear to him, that the maneuver being made could have had for its purpose only one object and that was to deflect the car onto the Public Belt Railroad.
While there is testimony going to show that, had the car not been deflected onto the Public Belt, it would have continued on the oblique line of the L. & N. until deflected by a curve onto the straightaway of the M. L. & T., we do not consider this circumstance of special importance. The important fact is that Schulingkamp either knew or, from his experience should have known that that car was...
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