Lampkin v. McCormick

• Decision Date: 01 January 1900
• Docket Number: 13,801
• Court: Louisiana Supreme Court
• Parties: GEORGE W. LAMPKIN v. J. H. McCORMICK, RECEIVER OF VICKSBURG, SHREVEPORT AND PACIFIC RAILROAD COMPANY

29 So. 952

105 La. 418

GEORGE W. LAMPKIN v. J. H. McCORMICK, RECEIVER OF VICKSBURG, SHREVEPORT AND PACIFIC RAILROAD COMPANY

No. 13,801

Supreme Court of Louisiana

January 1, 1900

Rehearing refused.

APPEAL from the First Judicial District, Parish of Caddo -- Land, J.

Sutherlin & Hall, for Plaintiff, Appellant.

Wise &amp Herndon, for Defendant, Appellee.

OPINION

NICHOLLS C.J.

STATEMENT OF THE CASE.

In the petition filed by the plaintiffs they averred that J. H. McCormick in his capacity as receiver of the Vicksburg, Shreveport and Pacific Railroad Company, was indebted to them in the sum of ten thousand and thirty-eight dollars and ten cents, for which they prayed judgment.

They alleged that said corporation with all its property was placed by judicial decree of the Circuit Court of the United States for the Fifth Circuit and the Western District of Louisiana, at the said city of Shreveport, rendered on the 21st day of April, A. D. 1900, in the hands of said J. H. McCormick as receiver, with the authority and directions to him to take possession of all the property of said corporation and operate and cause to be operated the said line of railroad as it had theretofore been operated by the said corporation; and that in the operation of said railroad by said receiver under his said appointment in said receivership, through his servants and employees, their son, Norman A. Lampkin, was struck, knocked down and run over, and thereby injured and killed by a moving train of freight cars of said railroad, in said city of Shreveport, on or about the 26th day of June, A. D. 1900, by reason of the torts, faults, wrongs, carelessness, omissions, and gross negligence of the servants and employees of said receiver in charge of and operating the said train of freight cars; and that said accident happened on Cotton street in said city between Commerce or Levee and Market streets.

They entered into a minute description of the locality where the accident occurred and the circumstances connected with the same.

The defendant answered, pleading the general denial and averring contributory negligence on the part of the plaintiff.

The jury returned a verdict in favor of the defendant and judgment was rendered accordingly.

Plaintiff appealed.

OPINION.

The evidence shows that the railroad of defendant company enters the city of Shreveport from the east over a bridge spanning the Red river. The west end of the bridge rests upon the edge of Levee or Commerce streets, which runs along the river front, between the city and the river. The bridge is opposite to the mouth of Cotton street and the tracks of defendant's road run from the Red river bridge, across Commerce street and up Cotton street, for several blocks; its freight depot being on the side of Cotton street between Commerce street and Spring street, the next cross street back; the passenger depot being several blocks further up in the city. Spring street crosses Cotton street on a high overhead bridge, supported by wooden posts and sills resting upon the ground. The bridge has several spans through which there are open spaces and railroad tracks.

The Shreveport and Red River Valley Railroad also approaches the city over the same railroad bridge, over the Red river, and uses the tracks of the defendant company, back as far as Spring street. At that point, the trains are stopped, switched off and backed down to its own depot on Red river, just below the railroad bridge.

There are at Spring street two or three tracks of the defendant company, which run parallel to each other, the main track being in the center, and the side tracks being alongside with intervening spaces. The evidence shows that many persons go to Spring street when the passenger trains of the defendant company and those of the Red River Valley Railroad reach that point, in order to see or meet passengers or to board the trains, and that passengers frequently leave the trains at that point to go into the city. The point in question is not one provided by either company for the receiving or landing of their passengers; there are no platforms placed there nor other arrangements made for the convenience of passengers. The companies are much opposed to their passengers getting on or getting off at that point and have tried, but in vain, to prevent it.

On the morning of June 26, 1900, a young colored man named Norman Lampkin, living with his parents in Shreveport, left his home and went down to the overhead bridge at the corner of Cotton and Spring streets and sat down there. As the passenger train of the Red River Valley road was approaching Spring street, on the main track of the defendant company, he rose from his seat and walked to meet it, when it should make its usual stop. What his object or purpose was in going to the train the record does not disclose. He was not an employe of either company, nor were there any contractual relations between them.

As the Red River Valley train was reaching its switching point at the corner of Spring and Cotton streets, from the Red river railroad bridge, a freight train of the defendant came backing down opposite to it, moving east towards the railroad bridge. The sides of the cars of each company projected on each side about two and a half feet beyond the rails on the tracks. As the freight train passed down it struck and immediately killed Lampkin, who was then in the space between the two tracks which the trains occupied, and so near to the rail of the sidetrack of the defendant company as to be reached by a projecting corner of one of the cars on the track. The freight train consisted of about sixteen or eighteen cars. Its engine was at the end of the train farthest from the direction in which the train was being moved. The train was moving slowly, at a not greater rate of speed than two or two and a half miles per hour. There was no person on the car at the end of the freight train to keep an outlook upon the track ahead, nor upon the spaces between the tracks to give warning of the approach of the train; nor was there any person stationed for the same purposes at the point where persons were likely to be found, in the spaces between the tracks, when the passenger trains came in or out. A brakeman on the top of the third car from the end of the freight train, was the employe of the defendant nearest to the scene of the accident.

Defendant claims that there is no such street as Cotton street in the city of Shreveport; that what is called Cotton street is an open space appropriated for the tracks of its company by the City Council; that there are no sidewalks upon the so-called street, and no paths or ways for either footmen or vehicles; that it is occupied by a network of railroad tracks; that there is no indication to any one of the locality being other than a railroad track yard; that there is no place for the travel of either vehicles or foot passengers along the street and it is in fact not traveled.

Cotton street, so called, is in fact during a part of its length almost exclusively used for railroad purposes -- tracks with spaces between the tracks covering almost the whole width of the streets, but the fact remains that from a legal standpoint the tracks are laid in the public street of the city, and that from a legal standpoint the general public have a legal right of passing along and over the street.

The right of occupation granted to the defendant company by the City Council, along the street, was granted subject to, and was received subject to the rights of the public, along and over the same, but the rights and obligations of the latter were modified to some extent by the grant to the railroad company. We can not deal with the accident under inquiry in this case, from the standpoint of Lampkin's having occupied when he was killed the position of either a trespasser or a licensee. Defendant introduced a number of witnesses to prove the fact that the getting on and off the train of passengers at or about the Spring street bridge was in opposition to the wishes of the railroad companies, and contrary to the instructions given to their conductors, but that fact is an irrelevant one in this particular case, where the party who was killed had not been a passenger on their trains, nor was he attempting to become such. The important question is whether persons were accustomed, rightly or wrongfully as a fact, to congregate at this particular place and by so doing, made it a point of danger to life and limb. We think the evidence establishes that it was a danger point and that the parties operating trains had every reason to believe and know that it was such, and that they were called upon to govern their actions accordingly.

Defendant urges that it would be unreasonably onerous to force it to place flagmen or policemen on the streets, or to place a brakeman at the rear end of each backing car or train, as it is constantly making up or breaking trains and moving them at all hours in different directions; that there is no conventional or statute requirement upon it to do so.

It may be true that the city, in granting defendant its right to lay its track upon the street, did not impose upon it these obligations and that they were not imposed on it by general ordinance or statute, but there are certain obligations upon railroad corporations which exist independently of convention or ordinance or statute. There is a duty imposed upon every one, whether natural persons or artificial persons, to avoid by proper care doing injury to others through their fault. (C. C. 666-2315.)

In Hamilton vs. Railroad Co., 42 Annual, 824, this court said: "that in running a train backward through streets the engineer should see that the brakeman is at his post and keep a...