Nolan v. Illinois Cent. R. Co
| Decision Date | 05 May 1919 |
| Docket Number | 23005 |
| Citation | 82 So. 590,145 La. 483 |
| Court | Louisiana Supreme Court |
| Parties | NOLAN v. ILLINOIS CENT. R. CO |
Rehearing Denied June 30, 1919
Hunter C. Leake, Lemle & Lemle, and Arthur A. Moreno, all of New Orleans (Blewett Lee and R. V. Fletcher, both of Chicago Ill., of counsel), for appellant.
McCloskey & Benedict, of New Orleans, for appellee.
MONROE C. J., not having heard the argument, takes no part.
Plaintiff, the widow of John P. Nclan, and the natural tutrix of their minor child, Lodiska, has sued the defendant railroad company for and on account of the minor for $ 20,000 in damages, because of the death of John P. Nolan, the father of the day of August 22, 1915, on or near the main track of the defendant company within the limits of the city of New Orleans, near the Poydras Junction, which is in the proximity of the crossing of defendant's railroad track near Washington street; that the train which caused the accident to and death of John P. Noan was a suburban train, operated between the city and Harahan, and that the train was negligently and faultily managed; that the deceased in no way contributed to the accident; that the accident was entirely due to the fault and negligence of the defendant company, and, if the deceased was negligent, the defendant had the last clear chance to save the situation and avoid the accident.
Defendant answered that it was entirely without fault; that the deceased was guilty of contributory negligence, and it had no chance to avoid the accident.
There was a trial by jury, a verdict in favor of plaintiff for $ 5,000, and defendant has appealed. Plaintiff has answered the appeal, and has asked for an increase in the judgment.
It appears from the evidence that, while the vicinity of the accident is within the limits of the city of New Orleans, the track does not run through or on any street at the point of the accident; that there are no streets or sidewalks there; that there are no houses or improvements of any kind there; that there are very few persons in the neighborhood; that it is an open space or place without trees or obstructions of any kind; that the track is straight for more than half a mile; that the train was moving on schedule time, at about the rate of 15 miles an hour; that a whistle had been blown for the crossing which the train was approaching; that the bell of the engine was ringing automatically; that the train was making the usual noise made by trains while in motion; that the day was bright; that one in the possession of his normal faculties, as plaintiff alleges the deceased to have been at the time, could and should have seen and heard the train in time to have avoided the accident; that the train was properly manned, with the engineer on one side and the fireman on the other side of the engine cab, who were on the lookout; and the fireman, who was the only witness to the accident, testified that he saw deceased approaching the track, but supposed that he would stop to permit the passing of the train, and that, when he realized that the deceased did not look or appear to hear the train or the bell, and that he was coming on the track regardless of prevailing conditions, he yelled to him, the deceased, and that the latter came steadily forward; that there was no time in which to stop the train after he realized that the deceased would go upon the track; and that the deceased was struck by the front part of the tender which had been placed forward of the engine.
One witness only testified on behalf of plaintiff as to the accident. But his evidence is so contradictory and confusing that it is of no assistance whatever. He says that he saw the deceased a few minutes before the accident; that The witness did not see the train until after the accident. He said the train did not whistle or ring a bell. 'I seen Mr. Nolan walking on the side of the track, and I was 50 feet away, was walking on the track,' 'going out to Broad street' -- that is, ahead of the moving train. He was walking on the same side of the track. In answer to the question, 'Did you see how far from the crossing Mr. Nolan came on the main track?' He answered:
If the witness is to be understood as testifying that Nolan was walking on the main track ahead of the moving train he is contradicted by the only other witness to the accident, the fireman on the train, who testified that Nolan was not on the track when he first saw him, and that he was approaching the track and came into collision with the forward end of the tender. The fireman testified that he saw Nolan as he stepped on the track and when he was struck by the tender.
It is well stated in Cook v. R. R. R. Co., 130 La. 917, 58 So. 767:
'Trainmen have a right to believe that a person approaching the railroad track will exercise his senses of sight and hearing so as to perceive the approaching train in time to avoid all accidents.'
And the fireman in this instance had a right to believe that Nolan, who was in possession of his normal faculties, as alleged by plaintiff, would both see and hear the train which was moving on the track, which was plainly in his view, and when he was about to cross or to walk on the track.
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