Levy v. New Orleans & N.E.R. Co.

• Decision Date: 09 January 1945
• Docket Number: 18212.
• Citation: 20 So.2d 559
• Court: Court of Appeal of Louisiana — District of US
• Parties: LEVY v. NEW ORLEANS & NORTHEASTERN R. CO.

20 So.2d 559

LEVY v. NEW ORLEANS & NORTHEASTERN R. CO.

No. 18212.

Court of Appeal of Louisiana, Orleans.

January 9, 1945

Rehearing Denied Feb. 26, 1945.

Benjamin Y. Wolf, of New Orleans, for plaintiff and appellee.

Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans for defendant and appellant.

JANVIER Judge.

This is a suit for damages by Gus B. Levy for the death of his wife and his 21 year old daughter, Dorothea Helene, who were killed when the automobile in which they were riding and which was driven by Mrs. Levy was struck by a locomotive operated by employees of defendant, New Orleans & Northeastern Railroad Company. The accident occurred at about 7:15 p.m well after dark, on October 25, 1943.

Mr. Levy also makes claim for the value of his automobile which he fixes at $2200. It was virtually destroyed. He claims a total of $32,200 including the claims which, as survivor, he makes for the mental anguish, pain and suffering each of the two ladies suffered.

In the district court there was judgment in his favor for $16,300; $7,500 for the loss of his wife, a like amount for the loss of his daughter, and $1,300 for the loss of the automobile. The defendant has appealed and plaintiff, by answer to the appeal, seeks an increase in the award.

The accident took place on Gentilly Boulevard where that thoroughfare crosses the tracks of the New Orleans Terminal Company. At that point Gentilly Boulevard and Bruxelles Street converge and cross the tracks almost together. Gentilly Boulevard is very broad and is paved. It does not cross the tracks at a right angle and as the automobile approached the crossing its occupants, to some slight degree, were facing into the direction from which the locomotive approached. The tracks are on an embankment elevated a few feet. The automobile was being driven by Mrs. Levy out Gentilly Boulevard from the main portion of New Orleans towards the lower portion of the city and the locomotive, with only a caboose attached, was coming towards the city. Thus the locomotive approached from the right-hand side of the sutomobile. With plaintiff's wife and daughter in the car was Miss Rose Stein Phillips who, though injured, was not killed.

There were two railroad tracks, one used by trains coming into New Orleans and the other by out-bound traffic. The train, coming towards New Orleans, was on the inbound track. The Levy car had crossed the other track when it was struck by the locomotive. On the outbound track and to the right of the crossing was a very long freight train of another railroad company which had been standing there for at least 20 or 30 minutes prior to the accident and its rear end, which was its end nearest the crossing, was at a distance estimated by various witnesses as being from a few feet to about 400 feet. Except for this other train, which plaintiff claims to some extent interfered with the view and which defendant maintains had no connection whatever with the accident, there was nothing to obstruct the view between the car and the train after the car had passed a small building to the right, about 149 feet from the nearest rail of the track on which the train was approaching.

The acts of negligence with which plaintiff charges defendant's employees are the following:

(1) That the engine and caboose were operated at an illegal rate of apeed, which plaintiff fixed at 30 miles per hour;

(2) That the defendant company and its employees were negligent in permitting the said engine and caboose to emerge from behind the other parked train without stopping;

(3) That there was negligence in that the engine and caboose were not brought to a stop before going over the crossing;

(4) That the company was negligent in that it did not have a switchman at the crossing at least two minutes before the approach of the train as plaintiff claims is required by Ordinance No. 555 C.S., dated January 25, 1884; and

(5) That the railroad company and its employees were negligent in that they drove the said locomotive over the said crossing without slowing up or stopping and without maintaining a proper lookout in spite of the fact that at this crossing 'thousands of vehicles pass every day' and that over it too 'the New Orleans Public Service, Inc. operates buses, which are street cars carrying passengers and are operated as street cars * * *.'

Defendant denies that its train was being operated at an excessive speed and avers that it was proceeding at a reasonable and safe speed; that its headlight was burning brightly; that its bell was ringing; that its steam whistle was blowing and that at the crossing there were electric automatic red flash lights on both sides and that these were operating perfectly as the automobile approached. Defendant especially denies that there is any ordinance or statute which requires that at that crossing a flagman be stationed at any time. And defendant further avers that the sole cause of the accident was the negligence of the driver of the automobile in failing to take advantage of the various warnings and in failing to stop in spite of the fact that she had ample opportunity to do so.

In the alternative, defendant avers that if there was any negligence on its part or on the part of any of its employees, the contributory negligence of Mrs. Levy, as above set forth, was the proximate cause of the accident and bars recovery, and defendant also charges that each of the other occupants of the car was also negligent in failing to notice the various warning signals and in failing to warn Mrs. Levy of the danger.

While the record is voluminous, a large part of the evidence touches upon facts which are either not in dispute or which are so overwhelmingly proven as to necessitate no discussion by us. For instance, there is no doubt whatever that the bright electric headlight was burning, that the bell and steam whistle were being sounded almost constantly during the several hundred feet which the locomotive traversed before reaching the crossing, and that the automatic flashing red electric warning lights were operating and that they complied with the requirements of an applicable city ordinance.

Counsel for plaintiff argues that in addition to the requirements of that city ordinance concerning those warning lights, there is another ordinance which requires that for at least two minutes before the arrival of any train there shall be a flagman stationed at each crossing in the City of New Orleans at which this railroad or certain other named railroads cross streets 'on which street cars are running.'

Defendant concedes that there was no flagman at this crossing but maintains that that ordinance has no reference whatever to that crossing since there are no street car tracks there and since no street cars are operated over it. We shall consider and dispose of this contention at this time.

It is conceded that there were no car tracks crossing the railroad tracks at that point. The General Traffic Ordinance of the City of New Orleans, No. 13702, C.C.S., describes a street car as follows: 'Street Car. Every device traveling exclusively upon rails when upon or crossing a street, other than cars or trains propelled or moved by steam.'

On behalf of plaintiff it is argued that at crossings over which motor busses operate there is as much necessity for a flagman as there is at those over which street cars operate on rails; that in effect busses are street cars and that since modern urban transportation development is fast substituting the motor bus for the rail street car, we should hold that a reasonable interpretation of the ordinance requires that it be held applicable to such a crossing.

In a Texas case, Patillo v. State, 120 Tex.Cr.R. 568, 47 S.W.2d 847, 848, the court considered whether a statute which referring to 'a train or street car or interurban car', Vernon's Ann.P.C. art. 1659, subd. 4, should be held to apply to motor busses not operated on rails. It was held that the statute did not apply. The court made a statement which we think pertinent here: 'When courts, in construing statutes, depart from the language employed by the legislator, they incur the risk of mistaking the legislative will, or declaring it to exist where, in truth, it never had an expression. The legitimate function of courts is to interpret the legislative will, not to supplement it, or to supply it.'

It would be a dangerous practice indeed for courts to attempt to decide that an ordinance or a statute which by its express wording is limited to a certain thing or subject should be extended to others which, though possibly similar, are not included within the express terms of the statute or ordinance. If there is a necessity that such enactments be amended so as to bring them abreast of modern transportation development the amendments should come from the municipal authorities or the state legislators. They cannot come from the courts.

We next concern ourselves with an effort to determine the speed at which the train approached and we notice at once an admitted fact that by the rules of the railroad company over whose tracks defendant was operating its train, the speed should not have exceeded six miles per hour. It is admitted too that by its own rules, defendant company made this and other rules of the owning company applicable to its trains while on the tracks of the other company. The district judge found as a fact that this train 'was greatly exceeding' this six mile limit. The evidence on this point is irreconcilable. The crew of the train all stated that when the crossing was reached its speed was six miles an hour and that it had been reduced from a higher speed which was veriously estimated at from 10 to 15 miles per hour. Members of the crew of the...