Saitta v. Yazoo & M. V. R. Co.

• Decision Date: 04 June 1923
• Docket Number: 23669
• Citation: 153 La. 1099,97 So. 261
• Parties: SAITTA v. YAZOO & M. V. R. CO
• Court: Louisiana Supreme Court

97 So. 261

153 La. 1099

SAITTA v. YAZOO & M. V. R. CO

No. 23669

Supreme Court of Louisiana

June 4, 1923

Appeal from Civil District Court, Parish of Orleans; George H Thard, Judge.

Action by Mrs. Rose S. Saitta against the Yazoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Lazarus Michel & Lazarus and Herbert S. Weil, all of New Orleans, for appellant.

Lemle Moreno & Lemle, of New Orleans (W. S. Horton, of Chicago, Ill., C. N. Burch, of Memphis, Tenn., and Hunter C. Leake, of New Orleans, of counsel), for appellee.

OPINION

DAWKINS, J.

Plaintiff claims damages for the death of her husband, alleged to have been caused by the fault of defendant.

The judge below gave judgment for defendant, and plaintiff appeals.

Opinion

Deceased was struck by the right end of the pilot beam of defendant's locomotive and instantly killed. He was walking down the track ahead of the engine in broad daylight, just outside the rail. A step of a few inches to the right would have put him in a position of safety. Dispute arises in the testimony as to whether the engineer, who saw deceased on or near the track nearly a mile away, gave any warning of his approach with whistle or bell. There were only two eyewitnesses to the tragedy, to wit, the engineer and a negro woman who was walking on another track. The former testifies that the signals were given in ample time, while the latter claims this was not done until deceased had been struck. As a circumstance tending to discredit the engineer's testimony, there was offered in evidence a statement furnished the coroner to the effect that the whistle had not been blown or the bell rung before the collision. However, the engineer did not sign this statement, and stoutly denied that he had given any such information at the inquiry conducted by the officials of defendant company as a result of which it was said the report had been made to the coroner.

These are issues of fact, as to which we are inclined to accept the finding of the trial court. Besides, although it was the duty of the engineer to give such signals, if he saw deceased was in a position of danger from which he was not reasonably preparing to remove himself, yet the former was justified in assuming that the deceased would use his sense of hearing so as to discover the approach of a heavy passenger train traveling 45 miles an hour and would get out...