Royal v. Kansas City Southern Ry. Co.
| Decision Date | 29 October 1954 |
| Docket Number | No. 8201,8201 |
| Citation | 75 So.2d 705 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Ernest ROYAL and Dalsy Quinn Royal, Plaintiffs-Appellants, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee. |
Godfrey & Edwards, Many, for appellants.
Wilkinson, Lewis & Wilkinson, Shreveport, for appellee.
Ernest Royal and Mrs. Daisy Quinn Royal instituted this suit to recover damages for loss of companionship and suffering on account of the death of their son, William Arthur Royal, who was killed by a train operated by the defendant. Prior to trial Ernest Royal died, thus leaving his widow, Daisy Quinn Royal, the single remaining plaintiff. Mrs. Royal has appealed to this court from a judgment rejecting her demands.
Few of the facts involved are in dispute. Arthur Royal met his death about 2:45 A.M. on June 29, 1946, while he was lying prostrate and helpless in an intoxicated condition at Gandy, Sabine Parish, Louisiana, on the railroad tracks. The train which struck his body was traveling south at a speed of from fifty to sixty miles per hour. From the site of the accident, looking toward the north, the railroad tracks are straight and level for a distance in excess of one-half mile with no obstructions to prevent members of the train crew from having a clear vision of the track ahead.
Not a single witness testified as to seeing the train strike Royal. On the contrary, the members of the train crew testified they were unaware of having run over anyone until the second day thereafter when upon examination of the locomotive a piece of wood known as a 'half-sole' was discovered missing from the pilot or 'cow-catcher' and was found at the scene of the accident. The incident of finding the 'half-sole' together with a small piece of blue cloth taken from a bolt under the engine and identified as coming from the deceased's shirt, definitely identified the locomotive as the one that struck Royal's prone body.
Gandy is a small rural community. Prior to 1940 a saw mill was in operation but ceased operations during that year. At the time of the tragic accident here involved about forty-five families lived within a quarter of a mile radius of the railroad crossing. The greater portion of these lived on the east side of the railroad tracks on which side was located the paved state highway, the only important artery by which vehicular traffic came to and left the community. The single place of business at Gandy was Mr. King's store or commissary in which was located the post office. There was no depot and Gandy was not even a flag stop. The crossing upon which Royal met death was not a vehicular crossing, but was used by pedestrians who lived near by on the west side of the railroad for the purpose of going between their homes and the store and post office. A witness attempted to point out in certain photographs of the scene a foot path but the path does not appear 'well beaten' as counsel contend in their argument. Some distance away from the pedestrian crossing there is another crossing--a dirt road--used by some farmers traveling to and from their homes west of the railroad. This crossing is vehicular and leads to the paved highway which is situated a short distance east of the railroad.
The most controversial evidence adduced relates to the atmospheric conditions at the time of the accident, that is whether or not fog was present. Several witnesses testified that during the early morning of June 29, 1946, it was a clear moonlight night, and others testified that when the train passed through Gandy there was fog which reduced visibility to practically zero.
After trial the district judge rendered judgment in favor of the defendant, assigning written reasons therefor. He concluded that the case presented but two principal issues for resolution and these were:
(1) What were the atmospheric conditions at Gandy at the time of the accident? and
(2) Considering the weather conditions existing at Gandy at the time of the accident and the degree of customary use by the public of the tracks at Gandy, what degree of care should have been exercised by the train crew in the operation of the train?
In argument and brief, counsel for plaintiff concede that Arthur Royal was guilty of negligently placing himself in a position of extreme peril but they assert that such negligence had become passive because of his helpless condition and there was imposed upon the members of the train crew the duty of maintaining a strict vigil or lookout in the exercise of which they would have discovered the prone body of Arthur Royal in time to stop the train and thus avoid running over him. This contention rests upon the doctrine of discovered peril or last clear chance, a humanitarian doctrine implying that the acts of humanity should prevent one from injuring another whom accident or his own negligence has placed in the path of danger from the normal acts of the other. Thus, the principle holds, where the injured person has negligently placed himself in place of peril, such peril will not defeat recovery where the railroad after discovery of his peril, or even where the railroad should have discovered his peril, has failed to exercise due care to avoid his injury. 75 C.J.S., Railroads, § 948. Moore v. Kurn, 10 Cir., 108 F.2d 906; Cheek v. Thompson, D.C.La., 28 F.Supp. 391, affirmed, 5 Cir., 140 F.2d 186; Russo v. Texas & P. R. Co., 1938, 189 La. 1042, 181 So. 485; Tillman v. Public Belt R. R. Commission for City of New Orleans, La.App.1949, 42 So.2d 888; Williams v. Missouri Pac. R. Co., La.App., 1942, 11 So.2d 658; Prince v. Texas & N. O. R. Co., La.App., 1939, 189 So. 291; Hicks v. Texas & N. O. R. Co., La.App., 1936, 170 So. 396; Neal v. Louisiana & Arkansas R. Co., La.App., 1944, 17 So.2d 374.
This rule is not without qualification. The principle does not apply unless after discovery or implied knowledge of the peril the employees of the railroad shall thereafter have had an opportunity to avoid the injury by the exercise of reasonable care under the circumstances and shall have failed to exercise such care thereby proximately causing the death or injury. 75 C.J.S., Railroads, § 949. Shaw v. Missouri Pac. R. Co., D.C.La., 39 F.Supp. 652; Cheek v. Thompson, D.C.La., 28 F.Supp. 391, affirmed, 5 Cir., 140 F.2d 186; Russo, v. Texas & P. R. Co., 1938, 189 La. 1042, 181 So. 485; Patterson v. Yazoo & M. V. R. Co., La.App., 1939, 187 So. 305; Hicks v. Texas & N. O. R. Co., La.App., 1936, 170 So. 396; Monk v. Crowell & Spencer Lumber Co., La.App., 1936, 168 So. 360.
During the trial certain witnesses testified that at the time and place of the accident the night was clear. Members of the train crew testified it was very foggy with practically no visibility at the time Royal was killed. Whether there was fog or not is important as this factor determines whether the engineer of defendant's train may be excused from having failed to see the body on the tracks. If the night was clear as testified to by plaintiff's witnesses, the evidence discloses that plaintiff should have stopped the train within 1,200-1,800 feet, which distance was within the range of the locomotive's headlight. If, on the other hand, the fog was so dense that Mr. Richardson, the engineer, would not have been able to bring his train to a stop after discovering the peril of Royal, he would be relieved of responsibility by the exception to the last clear chance doctrine as stated above. The record strongly indicates that neither Richardson nor any other member of the train crew knew until two days afterwards that their train had struck Royal. This fact seems so well established by the testimony that we are sure Richardson did not, in fact, see the body of Royal on the tracks.
Ray Davis and Otha Savelle testified that it was a clear moonlight night in the vicinity of the accident at about five or ten minutes until 1:00 o'clock A.M. These two witnesses testified that they were with Arthur Royal and took him home about 12:30 A.M. in a very intoxicated condition before he was killed. These witnesses lived within a mile of the crossing and testified there was no fog when they passed through Gandy about 12:30 nor was there any when they arrived at their respective homes about twenty minutes later. Marvin Powell, who lived within one hundred feet of the crossing where Arthur was killed, testified that he was awake when the train passed through and that he looked out from his house and clearly saw the train pass. He remembered it was a clear night with no fog. Mrs. Hazel Evans, who lived about six miles away, testified that she was outside her home near the railroad track when the train passed. She testified she could see the lights on the train and the night was clear and not...
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...to slow its trains during rainy or cloudy weather when traveling through a sparsely settled community. * * *' In Royal v. Kansas City Southern Railway Company, 75 So.2d 705, 710, the Court of Appeal for the Second Circuit considered a case in which a man was killed as a result of lying pros......
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