Ryan v. Louisville, New Orleans & Texas Railway Company

• Decision Date: 01 May 1892
• Docket Number: 11,016
• Citation: 11 So. 30,44 La.Ann. 806
• Parties: MRS. M. D. RYAN v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY
• Court: Louisiana Supreme Court

11 So. 30

44 La.Ann. 806

MRS. M. D. RYAN v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY

No. 11,016

Supreme Court of Louisiana

May 1, 1892

APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Rost, J.

Rouse &amp Grant, for Plaintiff and Appellee.

Farrar Jonas & Kruttschnitt, for Defendant and Appellant.

OPINION

FENNER J.

The petition alleges (in substance) that Matthew D. Ryan was employed as brakeman on one of the defendant's freight trains, and, on January 10, 1891, while coupling cars, was knocked down and run over by the train which was being backed down to be coupled. His leg was cut off, and he was otherwise badly hurt, and two days afterward died from his injuries. At the time of the accident, the engineer in charge of defendant's locomotive was not upon his engine, and it was being operated by the fireman. The plaintiff is the widow of the said Ryan, and sues in her own behalf, as well as in behalf of her two minor children, issue of her marriage with said Ryan, for the recovery of the damages which she and they suffered from his death, as well as the damages he suffered from his injuries, the action for which survived to said minors. The accident which caused said Ryan's injuries and death is alleged to have been due to the gross fault and negligence of the defendant, he being without fault on his part.

The negligence and fault alleged is that of the conductor in ordering the fireman to do the switching in the absence of the engineer, said fireman being incompetent to handle the engine, and such incompetency being the immediate cause of Ryan's injuries and death. (R., p. 1, et seq.)

The defendant's answer is a general denial, followed by two special pleas, viz.: "Defendant, further answering, denies that the death of said Ryan was in any manner due to negligence, carelessness and want of skill on the part of defendant or any of its employees.

"And defendant, further answering, says that the death of said Ryan was due entirely to his own carelessness and negligence." (R., p. 7).

There was a verdict and judgment for the plaintiff for $ 6000, and defendant appealed.

Obviously, under these pleadings, the issues presented are three, viz.: (1) Whether the injury of Ryan was caused by the fault of defendant; or (2) whether it was caused solely by his own fault; or (3) whether it was caused by the joint fault of both.

Under the facts of this case we need not discuss the question as to where lies the burden of proof under the plea of contributory negligence. On this question there exists a wide divergence of opinion among courts and text writers. Cooley on Torts, p. 673; Pierce on Railroads, -- 320; Bishop Non-Cont. Law, Sec. 470; Beach on Cont. Neg., p. 432, Sec. 157; Wharton on Neg., Sec. 427; 4 Am. and Eng. Ency. of Law, p. 92.

The facts of the case are peculiar.

No one saw Ryan at the moment when the accident occurred, and no one was able to state, of his own knowledge, how it happened. The only evidence on that point consists of statements made by Ryan himself immediately after the accident, and proved by plaintiff's own witnesses.

These statements, as proved by three witnesses put on the stand by plaintiff, were to the effect that, as the train backed to make the...