Johnson v. Texas & Pac. Ry. Co

• Decision Date: 09 April 1931
• Docket Number: 3059
• Citation: Johnson v. Texas & Pac. Ry. Co, 133 So. 517, 16 La.App. 464 (La. App. 1931)
• Parties: JOHNSON v. TEXAS & PAC. RY. CO
• Court: Court of Appeal of Louisiana

133 So. 517

16 La.App. 464

JOHNSON v. TEXAS & PAC. RY. CO

No. 3059

Court of Appeals of Louisiana, Second Circuit, Second Division

April 9, 1931

Rehearing Refused June 11, 1931.

Writs of Certiorari and Review Refused by Supreme Court June 24 1931.

Appeal from the Tenth Judicial District Court, Parish of Red River. Hon. J. F. Stephens, Judge.

Action by Susie Johnson, individually and as tutrix, against Texas &amp Pacific Railway Company.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Henry W. Bethard, Jr., of Coushatta, attorney for plaintiff appellant.

Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.

OPINION

TALIAFERRO, J.

This suit is brought by Susie Johnson, surviving widow of Charley Johnson, deceased, and as natural tutrix of their seven minor children, to recover damages against the defendant for $ 25,000, for the death of the husband and father, on December 18, 1925.

It is alleged that deceased was wantonly and negligently killed by a through freight train of defendant, operated by its agents and employees, at a dangerous and unlawful rate of speed, a short distance west of Williams station in Red River parish; that deceased was of unsound mind, addicted to temporary partial insanity, and when thus afflicted was oblivious to his surroundings and totally or partially deaf, dependent upon the degree of insanity; that when killed he was partially demented over some business matter of his own; that deceased was traveling in the same direction as the train, and that the defendant's track, at and about the point where deceased was killed, is straight for some two miles and the view unobstructed; that the train crew saw deceased when a mile or more from him and observed his condition, but, notwithstanding this, they continued to operate the train at a high, unlawful and negligent rate of speed until deceased was run down and killed; that there was ample opportunity to have stopped the train, after discovering the perilous condition of deceased, but no effort was made to do so.

It is further alleged that defendant's tracks in the vicinity of Williams station, to the knowledge and with the acquiescence of defendant's officers, agents, and employees, are constantly used by pedestrians in going from place to place; that the community there is thickly populated; that said Charley Johnson was not at fault; but his death was solely due to the fault of defendant company, its officers, agents, and employees.

The answer of defendant is a general denial of plaintiff's allegations, excepting those relating to the mental lapses to which deceased was subject and impairment of hearing when so afflicted, which are admitted. For further defense, defendant avers that the accident resulting in the death of Charley Johnson was occasioned solely by his own fault and negligence in being and walking on defendant's tracks without exercising the required precaution to learn of the probable approach of trains, and remaining thereon in the face of an approaching train and not heeding alarms and warnings given for him to remove; that his contributory negligence in thus conducting himself bars recovery.

Defendant filed a supplemental answer wherein it is averred:

"That while said decedent was of unsound mind and addicted to temporary flights or partial insanity, at which times he was oblivious of surrounding objects and was also at such times deaf, and that on the day he was killed he was so partially demented, these facts were not known to defendant's employees and agents in charge of its train."

The case was tried in the district court without a jury and plaintiffs' demands were rejected. They have appealed.

We do not find any serious differences between the evidence of both sides. With little or no exception, it is all reconcilable.

The train that killed decedent was a through freight, making the run from Marshall, Tex., to Boyce, La. It consisted of 70 cars, 55 loaded and 15 empty, plus locomotive, tender, etc., carried a load of 2,973 tons, and was moving at the rate of from 25 to 28 miles per hour. These cars averaged 40 feet long, thus making the entire train over 2,800 feet in length.

Charley Johnson was on defendant's track traveling easterly, and the train was moving in the same direction. He was about midway between Williams station and Cupples crossing when struck down. The distance between the station and crossing is about one-half mile.

When the train rounded the curve, about two miles west of the station, its whistle was blown. Several witnesses farther distant than decedent testified to having heard it. A short distance before reaching the crossing, the whistle was again sounded--two long and two short blasts--followed, in a very short interval of time, by a succession of shrill blasts, in an effort to attract decedent's attention to the train moving down upon him.

The engineer of the train testified that, when about 150 yards of deceased, he realized that the warnings were not having any effect on him; that he was making no effort to get off of the track, and it was then that he shut off the engine throttle and began making preparations to stop. This evidence is corroborated by that of other members of the crew. The engineer stated that he first discovered deceased on the track when about three-fourths of a mile from him. All of the witnesses who were observing deceased immediately prior to and at the time of the accident agree that he was walking slowly down the track apparently absorbed in the study or reading of a paper he held in his hands and at no time made any move or did any act that indicated he was conscious of the train's approach.

The train was making about 20 miles per hour when deceased was struck, and 28 cars passed over his body before a stop could be made. Assuming that the engineer began to check the train when 450 feet from point of accident, it required over 1,600 feet to bring the train to a stop. The brakes of the train were in good condition. It usually requires 2,400 feet to stop a train of this kind, according to the evidence.

Counsel for plaintiffs, after recounting the facts of the case, submits that the principal question of fact before the court is: Could the engineer have avoided the accident?

There is no doubt that the engineer could have brought his train to a dead stop within the three-fourths of a mile that intervened between him and the deceased, had he begun taking steps to do so immediately after recognizing deceased on the track. He could, also, have brought the train under such control within said distance as to have stopped it within 450 feet. The question arises: Under the circumstances, was the engineer required to do either of these acts?

Counsel for plaintiffs, after stating that this case turns upon the doctrine of the "last clear chance," says: "We admit that it seems to be the settled doctrine of the State of Louisiana that persons in full possession of their faculties who walk along a track in front of an approaching train and do not avoid the accident by stepping off the track, that such negligence bars recovery"--citing Harrison v. La. W. Ry. Co., 132 La. 761, 61 So. 782; Wells v. M. L. & T. Ry. & S. S. Co., 147 La. 58, 84 So. 493.

In the Harrison case, the court, after finding that the railway train had been run through the city of Lake Charles, where persons habitually walked on its tracks, at a rate of speed twice that permitted by ordinance, and without any lookout by the engineer, was culpably negligent, yet denied recovery for death of a pedestrian where the evidence showed that deceased was guilty of contributory negligence in failing to keep any lookout for train, which he knew was due, and could have avoided the accident at any time by stepping of the track.

In the Wells case, the facts were that deceased flagged an approaching train in order that his friend might get aboard, and, assuming that the train would respond to the hail and stop before it reached him, proceeded to walk down the track and was killed. His contributory negligence barred recovery.

The syllabus of this case, in part, is:

"The engineer of a train has the right to assume that a man who knows of its approach will not remain on the track and be run over."

In the course of examination of the engineer in charge of the train that killed Charley Johnson, the following questions were asked and answered by him:

"Q. When you sounded that alarm, what did you expect him to do?

"A. I expected him to take some notice of my train approaching and get off the rails.

"Q. Did you know this negro?

"A. No, sir, I did not.

"Q. Did you know that at the time he was insane?

"A. No, sir, I did not.

"Q. Did you know he was deaf?

"A. I did not.

"Q. You assumed him to be a normal man in possession of his faculties?

"A. I did.

"Q. As you continued to approach him, did you give him warning again?

"A. I did.

"Q. About how far were you from him when you gave this series of short blasts?

"A. I'll say about 150 yards from where he was struck.

"Q. Then you realized--when you saw that he did not pay attention to that one, what did you do?

"A. I shut my engine throttle off, and began making preparations to stop.

* * * *

"Q. Then when you really did begin to try to stop, it was too late to do any good?

"A. Impossible to stop after I realized he was not going to get off.

* * * *

"Q. Don't people usually on the track, when you sound a whistle, turn around or give some indication of having heard it?

"A. Some of them do and some of them don't.

"Q. Don't you become suspicious and alarmed that something might happen if they do not give any indication of not having heard your alarm?

"A. I do not,...