Shaw v. Missouri Pac. R. Co.

• Decision Date: 02 July 1941
• Docket Number: No. 294.,294.
• Citation: 39 F. Supp. 652
• Parties: SHAW et al. v. MISSOURI PAC. R. CO. et al.
• Court: U.S. District Court — Western District of Louisiana

39 F. Supp. 652

SHAW et al. v. MISSOURI PAC. R. CO. et al.

No. 294.

District Court, W. D. Louisiana, Monroe Division.

July 2, 1941.

C. Elliot Thompson and James H. Dormon, both of Monroe, La., for plaintiffs.

Hudson, Potts, Bernstein & Snellings, of Monroe, La., for defendants.

PORTERIE, District Judge.

The complaint here is by the legal tutrix for the benefit of the minor child of the deceased. For the minor, as provided by Article 2315 of the Civil Code of Louisiana, there are claimed (a) all the rights of action for damages in the deceased himself which have survived in favor of the minor, and (b) the damages sustained by the minor because of the death of the father.

This case was previously considered by us on a motion filed by the defendant for involuntary dismissal (Shaw v. Missouri-Pacific R. Co., 36 F.Supp. 651), and what is said there is made a part of this opinion. There is need of reading what is said on the motion in order to make this opinion, which is on the merits of the case, more definitely clear.

The complaint clearly outlines a case based on the doctrine set out in the case of Miller v. Baldwin, La.App., 178 So. 717, generally accepted by the legal profession to be defined at page 722, and fully quoted by us in our previous opinion on the motion for involuntary dismissal (36 F.Supp. at page 652). In Cheek v. Thompson, D. C., 28 F.Supp. 391, will be found a more detailed study of the doctrine. We shall now proceed, matching the facts to the requirements of the definition.

The defendant has shown, by the clear preponderance of the evidence, that John Pittman was not in passive negligence at the time of the accident, as he was not drunk, or to any real degree intoxicated. The evidence of plaintiff was that eight persons had drunk, over a period of two or three hours, eight quarts of beer and a pint of gin; and that at 9:20 p. m., Pittman left a colored tenant residence he was visiting to go to bed at his own tenant house three doors removed. Though there were three friends present, no one thought of escorting or aiding him to his house. There is nothing in the record of plaintiff as to Pittman's actions or movements from that time, 9:20 p. m., to the time of the accident, 10:25 p. m. The distance from this colored residence, which Pittman left supposedly to go home, to the place of accident is only 1,300 feet. On the other hand, the defendant, by a number of disinterested and truthful witnesses, has proved that Pittman went to a colored barber shop after having left this colored residence, had a haircut, and left the barber shop between 9 and 10 o'clock—and to all appearances was absolutely sober. On the following day, when news of his death became known to the three barbers who testified, no thought came to them of Pittman being intoxicated the previous night just before the accident.

From the colored tenant's residence to the barber shop is 3,200 feet; then from the barber shop to the place of accident is 2,750 feet; the time necessary to cover the sum of these two distances (5,950 feet) makes better account of the period of one hour (9:20 p. m. to 10:25 p. m.) than does the time necessary to cover the relatively short distance of 1,300 feet.

Then, the engineer operating the defendant's train testified that when he first saw Pittman on the track Pittman was in a seated or stooping position on the right-hand rail, and that he moved his head, showing that he was not physically inert to become classified under the doctrine of the Miller v. Baldwin case as being in passive negligence. He was not drunk nor was he asleep. There is no evidence to prove, nor is it claimed, that he was entangled.

Though this finding on want of passive negligence in Pittman is alone sufficient to disqualify him under the doctrine, we shall nevertheless take the next point of inquiry, as to the character of the place where the accident happened: a part of a populous city, an urban section, a place where people frequently use the tracks as a footpath, or where there are habitations and highway crossings.

Using one of the two aerial photographs filed in this case and taking the point where Pittman was hit by the train as the center of a circle, circumscribed by using a radius as long as the photograph permits, and then dividing the circle into quadrants, we find that the upper right and lower left quadrants have the least habitation —parts of them are the equivalent of open farming country. The upper left quadrant is just a little more settled, not very much; and the lower right quadrant is fully settled with one-story negro tenant frame houses.

There is but one road crossing involved in the physical picture. The evidence is that a short road parallels the railroad...