Mire v. East Louisiana Railroad Co.

• Decision Date: 01 April 1890
• Docket Number: 10,406
• Citation: 42 La.Ann. 385,7 So. 473
• Court: Louisiana Supreme Court
• Parties: J. C. MIRE v. EAST LOUISIANA RAILROAD COMPANY ET AL

7 So. 473

42 La.Ann. 385

J. C. MIRE v. EAST LOUISIANA RAILROAD COMPANY ET AL

No. 10,406

Supreme Court of Louisiana

April 1, 1890

APPEAL from the Civil District Court, Parish of Orleans. Monroe J.

Alfred Roman and Branch K. Miller, for Plaintiff and Appellee.

Harry H. Hall and Farrar, Jonas & Kruttschnitt, for Defendants and Appellants.

WATKINS J. FENNER, J., concurs. Poche, J., dissents from the opinion and decree of the majority and will file his reasons later.

OPINION

WATKINS, J.

On the 24th of May, 1888, the plaintiff was employed and actually engaged in the performance of duty as fireman on a locomotive of one of the trains of the East Louisiana Railroad Company running on the road from Covington, in the parish of St Tammany, to the city of New Orleans.

On that morning the company's train, on which Mire was os employed, left Covington for New Orleans on schedule time, and en route had passed Pearl River station, running at the usual rate of speed, and had taken the track of the Northeastern Railroad Company and made a distance of one and one-half miles from said station, when, just as the locomotive was in the act of going over a dirt-road crossing, it struck a plank or board, which was loose, and lying partly on the track and very near the crossing, and was, thereby, thrown suddenly from the track. By this sudden shock, derailing the tender, locomotive, etc., of the company's train, the plaintiff was violently thrown upon an adjacent pile of cross-ties, causing a fracture of his left knee and occasioning him great pain and serious injuries.

Plaintiff charges that said plank or board, which caused the accident, "was negligently or carelessly not spiked down, or left loose upon one of the rails of said track by the servants or employes of the New Orleans & Northeastern Railroad Company, for whose acts and omissions the East Louisiana Railroad Company is responsible." That the latter was, at the time, using and operating the track of the former, from Pearl River station to New Orleans, under a lease, and whose duty it was to furnish a track upon which the lessee's trains could be, at all times, safely run, and free from risk or hazard to its employes. It is specially averred that the breach of duty on the part of each one of said two corporations was the sole cause of the accident, and the resulting injuries of the plaintiff.

On this generalized statement of facts plaintiff brought suit against the two corporations in solido for $ 15,000 damages, and from a verdict and judgment for $ 2500 against each the defendants have appealed.

The questions for solution are, therefore, (1) whether one or both defendants are chargeable with fault, on account of a loose plank or board having been negligently left on one of the rails of the Northeastern Company's track, by its servants, or employes; and (2) if left in such a position as to have been easily cast or thrown upon the track, by some independent third person, or some responsible, extraneous agency, is one or both of the defendants responsible for the accident and for the plaintiff's consequent damages?

No fault is charged against or attributed to the officers or employes of the derailed train.

There is no question in the case of any violation, by that company, of a contract of safe carriage of a passenger. No charge is made that the accident happened on account of faultiness in the construction of the Northeastern track, or road bed; or of faultiness of the material of which it was built; or of its having been in bad condition at the time the accident happened. The fault charged is, that the servants and workmen of the Northeastern Company, at the time of the accident, or just before, being engaged in ballasting its track, had, for that purpose, removed some of the planks from the dirt-road crossing, and negligently failed to spike them down again, and left them loose upon the track, or in such close proximity thereto, that they were thrown upon it by some third person, or by means of some extraneous force, unknown, and thus caused the accident to the train and the injury to the plaintiff.

Suit is brought by one of the servants, or employes of the East Louisiana Company, against that corporation as his employer, and against the Northeastern Company as the lessor of his employer, in Solido, for the damage he sustained through the fault or negligence of the servants or employes of the lessor company, and for whose acts and omissions the lessee company is responsible to him.

On this statement of the issues involved, we deem it essential to plaintiff's recovery that he should establish, by a clear preponderance of proof, first, that there occurred such an accident; second, that thereby he sustained the injuries complained of; and third, that the accident happened through the fault or negligence of the Northeastern Company, its servants or employes. To make the fault plausible or reasonable will not suffice. It must also show in what manner the Eastern Railroad Company is responsible to him for the fault or negligence of its lessor.

In the answer of the Northeastern Railroad Company is the distinct and specific averment, "that no plank was left by it, or its agents, where it could have been dragged or fallen on the track; and if such plank was the cause of the engine * * * being thrown from the track * * * such plank could only have been placed there by design and with malice; and that it was not so placed by any person over whom this respondent could, or did, exercise control, or authority, or whom it could have prevented from thus acting."

It thus appears that the issue of fault, or negligence of that company, vel non, is squarely made, and must be as squarely met. It involves a question of fact as to whether the accident happened through the fault or negligence of the company's employes, and a question of law as to whether the company is responsible for injury inflicted by the independent act of some third person, which intervened between the defendant's negligence and the plaintiff's injury, and which was the direct and immediate cause of the accident and the injury.

An attentive and pains-taking examination of the record discloses the following state of facts:

The only eye witness of the accident was a lady of the name of Mrs. Mary Davis, who resides about three hundred yards from the railroad track, at the point where it happened. She saw the train from her front gallery at the moment the engine turned over. It was between the hours of 6 and 7 o'clock A. M. when the accident happened. She states that another train had passed down the road in the direction of New Orleans about half an hour before the accident happened, and that the wrecked train was going in the same direction. That during this interval of time she saw a timber wagon or carry-log pass over the dirt-road crossing, hauling logs toward Pearl river, and being driven by a person of her acquaintance disconnected with either of the defendant companies.

Several witnesses were interrogated in reference to the locus in quo and the immediate cause of the accident, between whose statements there appears, at first inspection, to be an irreconcilable conflict, but which disappears entirely when the point of time at which the different witnesses made their respective examinations is taken into consideration.

The superintendent of the East Louisiana road was a passenger on the derailed train, and made an examination immediately after the accident, and saw the plank that caused it, and states that one end rested on the track, and a part of it had been mashed or "chewered" up by the wheels of the engine passing over it. That the other end was twelve or fifteen feet distant from the dirt-road crossing, as at first seen. He describes it as being of some sixteen to eighteen feet in length, three inches in diameter, and nine inches in width, and of sound heart-pine timber, which had been in the road crossing for a year or more. He states that he, aided by two other persons, lifted it up and ranged it along side of and parallel with the railroad track, and several feet distant from the original position it occupied when he first saw it; says that the edges of this plank had been worn round by carry-logs and wagons passing over it. States that from his observation and knowledge of the location of this plank, it was, in his opinion, impossible for it "to have been pushed into the position it was found by any wagon or other vehicle passing along the road over the crossing."

The auditor and passenger agent of same company was also a passenger on that train, and likewise made an examination.

He it was who made the model exhibited to the court as illustrating the situation and surroundings of the wrecked train. He describes the little mounds of loose sand which had been dropped on either side of the track for the purpose of elevating the road bed to be of the average height of eighteen inches to two feet. In other respects this witness substantially confirms the statement of the superintendent. He says his examination was made within ten...