Jones v. Texas & P. Ry. Co

• Decision Date: 08 May 1934
• Docket Number: 1327
• Citation: 154 So. 768
• Parties: JONES v. TEXAS & P. RY. CO
• Court: Court of Appeal of Louisiana — District of US

154 So. 768

JONES v. TEXAS & P. RY. CO

No. 1327

Court of Appeal of Louisiana, First Circuit.

May 8, 1934

Dubuisson & Dubuisson, of Opelousas, for appellant.

Peterman Dear & Peterman, of Alexandria, for appellee.

OPINION

LE BLANC, Judge.

On January 4, 1933, just a minute or two before midnight plaintiff's husband, Hebert Hoskins Hill, drove his Ford automobile into a box car of the Texas & Pacific Railway Company on Landry street in the city of Opelousas. The train of which the box car formed a part had just started to move forward slowly, and the automobile was dragged a few feet across the street. Either the impact itself or the dragging of the automobile caused the latter to catch fire, and, as a result, a woman who was a guest passenger with Hill died before she could be rescued from the flames, and Hill himself, although taken out alive, was so severely injured that he died early the following morning at St. Rita's Hospital in Opelousas.

Mrs Hill has instituted this suit against the defendant railroad company for damages for the death of her husband, claiming $ 25,267.82 for herself and $ 25,000 on behalf of her minor son, Hebert Hoskins Hill, Jr.

In her petition she charges negligence against the defendant in three particulars: (1) In letting one of its trains obstruct a street crossing for a longer period of time than was permitted by municipal ordinance of the city of Opelousas; (2) in permitting its train to remain on a grade crossing that was peculiarly dangerous to automobile traffic at night, in that the lights of the car passed underneath the box cars or coaches, and this to the knowledge of the railroad company, as a similar accident had happened a few months before at this same place; and (3) in having violated an ordinance of the city of Opelousas which required it either to install at the crossing a signaling device or else maintain a flagman to warn the public of the presence of its trains on the tracks. Whilst a specific violation of section 1 of Act No. 12 of 1924, which requires the ringing of the bell and the blowing of the whistle by a train approaching a crossing, is not charged in the petition, there is nevertheless an allegation from which the same may be implied.

The defendant for answer denied all charges of negligence and pleaded that the fatal injury sustained by the decedent was due either wholly to his fault or negligence, or that he materially contributed thereto, and in consequence thereof there is no liability on its part. Counsel for plaintiff contend that, if defendant meant to plead contributory negligence on the part of the decedent, the plea as made in its answer is insufficient for lack of specific allegations. Of course the character or insufficiency of the plea will only have to be inquired into should it be held that the defendant was negligent on any of the grounds set out in plaintiff's petition.

There was judgment below in favor of the defendant dismissing the plaintiff's suit at her costs. The trial judge assigned no written reasons for judgment, and we therefore are not informed as to whether he held the defendant free of negligence or found that the decedent had been guilty of contributory negligence. From the judgment rendered, the plaintiff took this appeal.

The decedent was a young man engaged in the sawmill business, having been yard foreman for the Turner-Farber Lumber Company at Lemoyen, La. On the afternoon of January 4, 1933, he drove to Opelousas, taking with him the lumber company's negro cook who was to buy some groceries and later wait for him to pick her up at a small store not far from the railroad crossing where the accident took place, for their return to Lemoyen. The negro woman, whose name is Lena Patterson, says that it was about 8 o'clock when they got to Opelousas. From that hour until 11:55 no one testified as to the movements of Mr. Hill, but shortly before the time mentioned he drove in front of, and stopped at, the De Luxe Restaurant, where he spoke to Mr. Howard De Jean. He and the woman who was with him were both seated on the front seat of the automobile. De Jean sat in the back and had a cup of coffee with them. They stayed there about ten minutes when De Jean got out of the car and they drove off. The next he heard of them was when the accident happened not more than three minutes afterwards.

It is shown by the testimony of the conductor and others of the crew that the train, which was a mixed train running between Crowley and Melville, arrived at Opelousas at 11:55 that night. It is also shown that the accident happened about 11:58, just as the train had been put in motion. It is apparent therefore that the box car which the automobile ran into had not occupied the crossing for a longer period of time than three minutes, if that long, and the first question to determine under the issue raised by counsel for plaintiff is whether it is negligence on the part of a railroad train to permit one of its cars or coaches to obstruct a crossing for three minutes. In her petition plaintiff alleges that such obstruction was for a longer period than permitted by municipal ordinance of the city of Opelousas adopted June 3, 1890, but, as far as the record discloses, no such ordinance was offered or produced in evidence, and we are therefore unable to say whether or not there was a violation, assuming that such ordinance is any longer in existence. Other than this, we have been referred to and know of no law, rule, or regulation which would justify a finding of fault or negligence on the part of a railroad for permitting its trains to remain on a crossing for not more than three minutes. It may very well be that there are regulations or city ordinances, which require trains to open up a crossing after a certain period of time so as not to unduly delay traffic on the street or highway, but these would have no connection with the issue of negligence that is here raised by the plaintiff.

To sustain her second charge of negligence against the defendant company, that is, that the crossing was peculiarly dangerous to automobile traffic at night, and this to its knowledge plaintiff, in order to show knowledge, must rely on the testimony of witnesses who claim to have had experiences similar to that of her husband, except that they were more fortunate, in that the accidents they were in did not result fatally. Strenuous objection was made to the offer of such testimony on the ground that it was...