Roby v. Kansas City Southern Ry. Co

• Decision Date: 08 April 1912
• Docket Number: 18,870
• Citation: 130 La. 880,58 So. 696
• Court: Louisiana Supreme Court
• Parties: ROBY et al. v. KANSAS CITY SOUTHERN RY. CO

58 So. 696

130 La. 880

ROBY et al. v. KANSAS CITY SOUTHERN RY. CO

No. 18,870

Supreme Court of Louisiana

April 8, 1912

Rehearing Denied May 20, 1912.

Appeal from First Judicial District Court, Parish of Caddo; Thos. F Bell, Judge.

Action by Mrs. A. M. Roby and others against the Kansas City Southern Railway Company. From a judgment for plaintiffs defendant appeals. Modified.

Alexander & Wilkerson, for appellant.

F. J Looney, J. M. Foster, and W. R. Percy, for appellees.

OPINION

MONROE, J.

Statement of the Case.

Plaintiff herein, Mrs. A. M. Roby, wife of J. A. G. Roby, with her grown stepsons, Bryon and Greer, and her two little boys, Virgil and another, issue of her marriage, were on their way to the Fair Grounds, near Shreveport, in a hired automobile, when one of defendant's trains ran into the automobile, with the result that Mrs. Roby and Greer were badly injured and Virgil was killed. Three suits were brought for the recovery of damages, and, for the purposes of trial, they were consolidated, and, having been argued together, will be considered together for the purposes of the opinion, though a decree will be entered in each.

The family party thus mentioned live in the country, and were visiting Shreveport probably for the purpose of attending the Fair, which was being held to the southward of the city. In order to accomplish that purpose, one of the grown sons hired a public automobile from the stand in front of the Phoenix Hotel, and requested Wm. Lowe, the chauffeur and proprietor, to take them to the Fair Grounds, giving him no other instructions than that he should proceed carefully. Lowe drove the machine, and he and Bryon Roby occupied the front seat, whilst the others occupied the back seat. They proceeded, without accident, out Texas street and Texas avenue (the one being a continuation of the other, as we understand), until they reached a point at Cedar street, where Texas avenue is crossed by nine tracks of the defendant company, and the accident occurred on the first, or most northerly, track, as follows:

Persons traveling southward on Texas avenue do not obtain a view of the railroad crossing until they get rather near it, as up to a point apparently say 100 yards, more or less, from the crossing, the avenue appears to run in a northeasterly southwesterly direction, and the railroad tracks also run slightly north of east and south of west. At the point mentioned (the distance of which from the crossing, we approximate, from the photographs in evidence) the avenue makes a turn to the southward, when the crossing becomes visible, the tracks crossing the avenue at an angle which, to the eastward is less, and to the westward greater, than a right angle. On the northwest corner of the avenue and Cedar street there appears to be a three-story brick building, on the northeast corner, a two-story frame building, with a cornice, and with a shed extending out over the sidewalk and around the corner. The distance from the property line on the north side of Cedar street to the first (or most northerly track) we take to be some 15 or 20 feet, from all of which it will be understood that a person approaching the crossing, as was the party in the automobile, is considerably at a disadvantage with regard to the approach of a train from the eastward on the first track, since the view is obstructed by the frame building, with the shed, on the corner, and, even when that is cleared, it is necessary by reason of the angle on that side to look somewhat backward, and, unless that should occur to the person concerned, he might very well be surprised by the approach of a train from that direction. The automobile in question came down the right (or western) side of the avenue, and its occupants were in a better position to have seen such a train than they would have been had they come down the left (or eastern) side, but they saw no train, nor, until they got within a short distance (variously stated by the witnesses) of the crossing, did they see any flagman. The crossing is obviously a dangerous one, since, as we have stated, there are nine tracks, and the point is regarded as within what is called the "railroad yards" -- that is to say, within the territory in which on the one side defendant's train is made up and broken up, and on the other side are its shops, so that, as we apprehend, there is considerable switching and other movement of trains and cars going on at all times. Upon the other hand, Texas avenue is the main thoroughfare of the city, over which a large proportion of its traffic with, and travel into, the country is carried on, and, as it is also the route by which citizens and visitors in general reach the Fair Grounds, it can readily be understood that during the holding of a fair the situation demands the most careful attention. The municipal authorities some years ago enacted an ordinance requiring defendant to keep a flagman at the crossing in question day and night; but, as the automobile in which the Robys were riding approached the first, or northward, track (between one and half past one o'clock, in the day), the flagman was standing between the second and third track, near the projected line of the eastward sidewalk of Texas avenue engaged in conversation with the driver of a wagon which had stopped there, and which, as also the little house intended for his shelter, were between him and the approaching train. He himself testifies that he would have been standing on the curb of the sidewalk "if the curb had gone across," and Mr. C. A. Waits, a witness for defendant, testifies that the moment before the accident he was approaching the scene along what would be the westward sidewalk (if the sidewalk were extended over the crossing), and that he saw the flagman, the train, and the collision, and, further, as follows:

"Q. Where was the flagman when you saw him? A. When I first saw him, he was standing by a wagon. Q. On which side of the crossing? A. Right in the center of the tracks -- the street crossing, about halfway between the tracks, probably a little this way [meaning nearer town], probably one-third on the way across the crossing. The wagon was standing in the tracks, or at the edge of the tracks. * * *"

On cross-examination:

"Q. You say that the flagman was standing by the wagon? A. Yes, sir. Q. Now, where was the wagon? A. It was right at the edge of the tracks, about a third across. * * * Q. Headed this way [towards town]? A. Yes, sir. Q. What was the flagman doing -- talking to the driver? A. Yes, sir. Q. He was talking to the driver? A. Yes sir; I think so. He was standing there by him, looking at the driver. Q. You couldn't tell that he was talking? A. No, sir. Q. His attitude, though, was as if he was in conversation? A. Yes, sir; it seems that he was talking to him, judging from his attitude that he was standing in. * * * Q. Now, that put the wagon between the flagman and the approaching train? A. Yes, sir; the wagon was behind the flagman and the approaching train. Q. Now, at that time, about how far away was that approaching train? A. When I first noticed it, when the flagman stepped out and flagged the automobile, I then looked to see what the danger was, naturally, and I saw the train above there within about 40 feet of the crossing, of the avenue crossing. * * * Q. Then at the time the flagman was talking to this man, the train must have been in the neighborhood of 40 feet, or 50 feet, of the crossing? A. Yes, sir. Q. When the flagman turned around and saw the automobile, he rushed ahead and flagged him? A. Yes, sir. Q. The red flag in one hand and the white flag in the other? A. Yes, sir. Q. The flagman was very much excited? A. Yes, sir; a great deal. Q. He ran up in front of the automobile frantically flagging? A. Yes, sir; within six feet of him. Q. When you first saw the automobile, it was about 40 feet from the point where it stopped? A. Yes, sir. Q. At that time, or when you looked, or a little while afterwards, the train, you say, was about 40 feet from the crossing? A. Thirty or 40 feet. Q. And to have added the distance from the crossing to the place where the automobile stopped would have been 15 or 20 feet more; in other words, that street is 50 feet wide? A. Yes, sir. * * * Q. Then, if the flagman had left the automobile alone and not flagged him down, he could have passed over the track in safety? A. Yes, sir. Q. Without any question? A. Yes, sir."

Mr. J. E. Peyton, a witness called by plaintiff, testified that shortly after the accident the flagman in his presence pointed out to a number of persons the place where he was standing when he first saw the automobile. The witness said:

"Mr. Horn [the flagman] said that he was standing right between the first, as I remember, between the second and third tracks. It was on a line between this house and the opposite side of the street [witness marks with pencil on photograph 'D' place where he said he was standing], right at the sidewalk. Q. Inside the curb? A. There was not any curb there. Q. At the point that you have marked 'X' on this Exhibit D? A. Yes, sir. Q. Where the sidewalk would be, if extended across the street? A. Yes, sir."

There were 46 witnesses examined in the case, and there is more or less of conflict in their testimony; but, taking it all together, we think it clearly established that the flagman was engaged in conversation with the driver of the wagon at the point designated by the witness whose testimony has just been quoted, which point, as we have stated, is off to one side of the crossing, and not less than 20 feet to the southward of the northern side of the track on which the accident occurred, being the side from which the automobile was approaching; that, when the train and...