Raymond v. Western Union Telegraph Co.
| Citation | 151 La. 184,91 So. 671 |
| Decision Date | 13 March 1922 |
| Docket Number | 24424 |
| Court | Louisiana Supreme Court |
| Parties | RAYMOND v. WESTERN UNION TELEGRAPH CO. et al |
On Application for Rehearing, April 20, 1922
Appeal from Thirteenth Judicial District Court, Parish of Rapides Jas. Andrews, Judge.
Action by Newton G. Aymond against the Western Union Telegraph Company and another. From a judgment for plaintiff defendants appeal.
Reversed, and plaintiff's demand rejected as against one defendant, and judgment amended as against the other defendant.
Francis R. Stark, of New York City, and White, Holloman & White, of Alexandria, for appellant Western Union Telegraph Co.
Spencer Fenner, Gidiere & Phelps, of New Orleans, and Wm. H. Peterman, of Alexandria, for appellant Payne.
Blackman, Overton & Dawkins, of Alexandria, for appellee.
By Division C, composed of Justices DAWKINS, ST. PAUL, and THOMPSON. Plaintiff claims damages for the death of his minor son, charging same to the negligence of the defendant telegraph company and of the Director General of Railroads (operating the Texas & Pacific Railroad), hereinafter designated for convenience the railway company. The cause of action against the railway company is wholly apart from that against the telegraph company, and will be passed upon separately.
The deceased was nearly, but not quite, 14 years of age, and we find the facts to be that on the night of December 20, 1919, he was in the employ of the telegraph company on his way to deliver a message; that he was run down on the tracks of the railway company, whilst riding a bicycle over a public crossing in the heart of a city of 17,000 inhabitants (to wit, Alexandria, La.); that the night was dark, the crossing unguarded and poorly lighted; that the train was backing without a light ahead to mark its presence, and without lookout preceding it to give warning of its approach; that the locomotive was several hundred feet to the rear, where the noise of its whistle, bell and exhaust could be no indication that the dark and silent "lead car" was in motion. This we hold to be gross negligence. See Maher v. L. R. & N. Co., 145 La. 733, 82 So. 872.
The defendant pleads contributory negligence. This is a matter of defense, and must be proved by defendant unless shown affirmativelyby the very evidence relied upon by plaintiff. The theory that the boy attempted to cross between the cars before they started to move is not supported by a scintilla of evidence; but, on the contrary, it is negatived by the fact that the bicycle track led right upon the railroad track, and showed that the bicycle was struck aside and pushed along. This is corroborated by the further fact that the body (trunk) was found wholly between the rails (as testified to by the brakeman), thus showing that the unfortunate boy was crushed by the low-lying brakebeams, and dragged along without being touched by the forward wheels, and until in the course of his rolling some part of his hands and feet were caught beneath the wheels further back; all of which fully accounts for the lack of blood on the wheels ahead.
For the rest, we do not know whether the boy looked or listened, or whether looking or listening would have done any good; but since the burden of proof as to contributory negligence is on defendant, it is a presumption of law that he did look and listen; and since the love of life is instinctive, especially in youth, it is also a presumption of fact that the boy gave some care to his own safety. Hence, since neither the evidence of the defendant nor that of plaintiff shows contributory negligence in the boy, no such contributory negligence will be presumed.
As to the obligation to stop before crossing a railroad track, that must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position of absolute immobility; but common sense and common practice both indicate that it will suffice for...
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