Jones v. Mackay Telegraph Cable Co.

• Decision Date: 26 April 1915
• Docket Number: 20157
• Citation: 68 So. 379,137 La. 121
• Court: Louisiana Supreme Court
• Parties: JONES v. MACKAY TELEGRAPH CABLE CO. et al

68 So. 379

137 La. 121

JONES v. MACKAY TELEGRAPH CABLE CO. et al

No. 20157

Supreme Court of Louisiana

April 26, 1915

SYLLABUS

(Syllabus by the Court.)

One who suffers personal injury by risking his life to save the lives of others in danger is not to be charged with contributory negligence for failing to exercise his best judgment in the emergency.

A railroad company is liable in damages for personal injuries resulting from the negligence of its engineer, who had the last clear chance to avoid the accident, even if the person injured was originally guilty of negligence in creating the situation of danger to himself and others.

Dufour & Dufour, of New Orleans, and Andrews, Hakenyos & Scott, of Alexandria (George Janvier, of New Orleans, of counsel), for appellant Texas & P. Ry. Co.

Sam S Mims, of Alexandria, for appellee.

OPINION

O'NIELL, J.

This is a suit for damages for personal injuries inflicted upon the plaintiff by a passenger train of the Texas & Pacific Railway Company while he was employed with a construction gang of the Mackay Telegraph Cable Company. He prayed for judgment against both companies in solido for $ 20,000. The trial was had in the district court without a jury, and resulted in a judgment in favor of the plaintiff for $ 4,000 against the railway company and in favor of the railway company for the same amount against the telegraph company on a contract of warranty. The defendants prosecute this appeal.

A crew of about 25 men, under the direction of a foreman, was constructing a telegraph line along the north or northeast side of the railway, 22 1/2 feet from the main track. The work was proceeding in a western or northwestern direction, towards Alexandria. The poles were distributed at proper distances along the track. A crew of men attached the cross-arms; another crew followed, dug the holes, and erected the poles; and the linemen came after, stringing the wires. The plaintiff was working as a laborer with the crew stringing the wires on the poles. They were using two hand cars; one carrying the reels of wire, and the other following with the blocks and tackle, which were used for tightening the wires on the cross-arms.

On the morning of the accident, the plaintiff was getting the blocks and tackle from one of the poles on which they had been used and was putting them on the hand car to be brought up for use on the wires that were being strung out from the other hand car half a mile ahead. The plaintiff was working alone. The linemen were putting up the wires on the poles further west, and the other members of the crew were with the front hand car, except one, Ike Johnson, who stood on the railroad track, about midway between the two hand cars, giving signals to the linemen on the poles and the men on the ground. The foreman came up the track, walking towards the west, and, according to his testimony and that of Ike Johnson, he had passed by the plaintiff and had gone about a hundred yards past Ike Johnson, when the accident occurred. The train that struck the plaintiff, or struck the hand car which he was handling, was going west, to Alexandria.

The foreman testified that when he passed the hand car, near which the plaintiff was working, he had just seen the smoke from the approaching train, about four miles away, and he then warned the plaintiff to get the car off of the track. He says there was a switch or siding a few hundred feet east from the hand car. He first estimates this distance at 500 to 600 feet, and then says it might have been only 200 or 300 feet away. He says he warned the plaintiff of the approach of the train five or ten minutes before the accident, and that he also warned Ike Johnson when he passed him on the track. The foreman did not know that an accident had occurred until the train had passed and Ike Johnson came running to him and told him that Jack Jones had been killed.

The plaintiff testified that the train was within a mile from the hand car when the foreman ordered him to get the car off of the track; that he ran immediately to the car, shoved it a short distance, then jumped upon it, and propelled it with the hand beam to the switch, which, he says, was only about 16 feet from where the car had stood. Just before he got the car to the switch, Ike Johnson came to his assistance. The switch being closed and locked, the two men ran to the front of the car, lifted the front wheels over the rails, and pulled the car partly onto the siding, then ran around behind the car and shoved it onto the switch track; but, before they could get it far enough from the main track, the passenger train was upon them. The pilot on the locomotive struck the rear end of the hand car and knocked the plaintiff senseless.

Ike Johnson, who was a witness for the defendants, testified that, when he first saw the train approaching, it was about two miles away, and he was about a quarter of a mile from the hand car. He ran to assist the plaintiff in getting the car off the track and met the car just before plaintiff got to the switch with it. The train was then so close upon them and coming so fast that he suggested trying to take the car off of the track without going onto the switch, but plaintiff preferred to run it onto the switch. He said it seemed to him that they could have got the car off in less time without running it onto the switch; but he admits that they worked as fast as they could and got the car onto the switch as quickly as it could have been done.

Two disinterested colored witnesses testified that they were on the porch of a house about 50 feet south from the track, diagonally opposite the scene of the accident. Before they saw or heard the train approaching, their attention was attracted by the plaintiff's running to the hand car and struggling to get it off of the track. They then saw the train about a mile away, coming so fast that one of these witnesses said to the other. 'That train will catch him before he gets off there.' They corroborate the plaintiff's and Ike Johnson's statement that they worked as fast as possible but could not get the car out of the way of the train before it overtook them.

The defendants contend that the plaintiff was guilty of negligence in failing to follow the suggestion of Ike Johnson to lift or throw the car off of the track instead of taking it to the switch. There is no proof, however, nor reason to believe, that two men could have lifted or otherwise removed the car from the track in less time than it required to shove it to and upon the switch. The evidence is that it required four men to lift the car bodily off the track, and that two men could get it off by lifting one end and then the other over the rails; but it does not appear that this was such a quick and easy way for the two men to remove the car that the plaintiff should have jumped at the suggestion. There was no time for him to stop and calculate whether he and Johnson could lift the car off, one end at a time, more quickly than they could shove it to and upon the switch. Perhaps many human lives depended upon the accomplishment, in a limited time, of what the plaintiff and Ike Johnson were risking their lives to accomplish. A lack of judgment, under such circumstances, cannot be regarded as negligence on their part.

The defendants also contend that the plaintiff did not begin to move the car off of the track immediately when he was warned by the foreman that the train was approaching. There is a conflict in the evidence on this question, which we are not called upon to decide on this appeal. The plaintiff did not perfect his appeal from the judgment, absolving the defendant telegraph company from any liability to the plaintiff. Nor has he, as appellee in this court, prayed for an amendment of the judgment. The issue presented in the appeal, therefore, is whether the engineer on the passenger train was negligent, and, if we conclude that he was at fault, then the question arises whether the plaintiff was also guilty of negligence, contributing to the accident; and, if we find that they were both negligent, we come then to the final issue whether the plaintiff or the engineer on the passenger train had the last clear chance to avoid the accident.

It occurred on a bright morning between 8 and 9 o'clock. The track was straight at the scene of the accident and for a distance of two miles or more each...