Settoon v. Texas & Pacific Railway Company

• Decision Date: 24 February 1896
• Docket Number: 12,052
• Citation: 48 La.Ann. 807,19 So. 759
• Parties: ARCHEY SETTOON ET ALS. v. THE TEXAS & PACIFIC RAILWAY COMPANY
• Court: Louisiana Supreme Court

19 So. 759

48 La.Ann. 807

ARCHEY SETTOON ET ALS. v. THE TEXAS & PACIFIC RAILWAY COMPANY

No. 12,052

Supreme Court of Louisiana

February 24, 1896

Argued February 12, 1896

Rehearing refused April 20, 1896.

APPEAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

Hebert & Hebert, for Plaintiffs, Appellees.

Howe Spencer & Cooke and L. DePoorter, for Defendant, Appellant.

OPINION

McENERY J.

The plaintiffs, parents

of Henry W. Settoon, brought this suit for damages against the defendant corporation for the death of their son, who was killed by its cars at the town of Whitecastle.

The defence is such as is usually urged in such cases.

There was judgment for plaintiffs in the sum of twelve thousand five hundred dollars, and the defendant appealed.

In front of and alongside of the depot of the railroad there is a switch track, and beyond this the main track.

Between the two tracks the company filled in with cinders for the purpose of affording a dry surface for its passengers who get off and on the trains at this point, and also for the convenience of its employees. It is in evidence that people in the vicinity used this cinder walk, but we do not think that it is shown that there was an implied invitation to the public to use it, any more than its main track, or the switch track. The fact of the road having made the space between the two tracks dry by placing cinders on it in itself is not an invitation to the public to use it. The road might fill in the space between the ties on the main track with gravel, yet this would not be an implied invitation to the traveling public to use the roadbed as a highway. In the vicinity of the depot there is a store, and from this leading to the cinder walk there is a pathway. From the store, leading to Bowie street, back of the depot and toward the town, there is a driveway, and alongside of this is a plank sidewalk. Through and over the cinder walk is the shortest way probably, to Bowie street, but the death of the plaintiff's son proves it to be the more dangerous. In the early part of the night, about 8 o'clock, plaintiff's son was at the store, called the company's store, or Romantus T. Hart's store. It does not appear that the railroad company is in any way interested in this store. The plaintiff's son, accompanied by one Gonzales, left the store at the hour mentioned, took the small foot-pathway, crossed the switch track and went on the cinder walk, intending to reach Bowie street. They had not proceeded far before they were both struck by a pole, extending over the cinder walk, which was used by the company in moving box cars for the purpose of making up a freight train. Gonzales escaped serious injury and was thrown down. Plaintiff's son was thrown on the switch track, his thighs crushed, and he died in about three hours. The defendant company was engaged in its proper and legitimate calling in making up a freight train. The switch had been placed there for that purpose, and we are not informed that any other more convenient and safe method could have been employed. The plaintiff's son knew what the switch was there for, and he knew the mode employed by the defendant in making up its train. Conceding, therefore, that he went on the cinder walk by implied consent of the defendant, the law is uniform in its expression that if one avails himself of the license, he does so subject to all the incidental perils.

But the trespasser or one who avails himself of an implied invitation to go on premises is not without a remedy, if the injury inflicted was wantonly and...