Slayter v. Texas & P. R. Co.
| Citation | 182 So. 343 |
| Decision Date | 01 June 1938 |
| Docket Number | 5649 |
| Parties | SLAYTER v. TEXAS & P. R. CO. et al |
| Court | Court of Appeal of Louisiana (US) |
John R. Hunter & Son, of Alexandria, for appellant.
Hudson Potts, Bernstein & Snellings, of Monroe, and Hawthorn Stafford & Pitts and Frank H. Peterman, all of Alexandria for appellees.
Plaintiff instituted this suit against the Texas & Pacific Railroad Company and Guy A. Thompson, as Trustee of the Missouri Pacific Railroad Company, to recover damages alleged to be due him as a consequence of a collision between his Chevrolet truck, then being operated by him, and a freight car of the latter company near the eastern boundary of the city of Alexandria, Louisiana, at about the hour of 8 o'clock P. M., September 17, 1936.
Plaintiff was driving west toward the city on a graveled road (the easterly extension of Vance Avenue in said city), which runs through the mill and lumber yards of the Ferd Brenner Lumber Company. The freight car which collided with the truck was the most southerly of a train of ten, then being backed slowly in a southerly direction on a main track of the Texas & Pacific Railroad Company. The graveled road crosses this track and four others there at right angles. The said main track is the second of the five, counting from the east. The lumber yard is adjoined on its west side by the right of way of the Texas & Pacific Railroad Company. This yard is without the City limits.
For a cause of action, plaintiff in substance alleges that as he approached said crossing, he reduced the speed of his truck to five miles per hour or less, at the time keeping a proper lookout ahead; that observing no trains on said track, he undertook to negotiate the crossing and that as he reached approximately the center of it, his truck was violently run into and struck by the rear car of said train and, because of the suddenness of the collision, he was unable to avert it. He charges that said crossing was not protected by a flagman or other servant of defendants; that said train was backed into said crossing without the giving of any warning whatever of its presence or approach, and particularly without the sounding of a whistle, ringing of a bell or the playing of any lights thereon; and this too, notwithstanding the operatives of said train were well acquainted with said crossing and knew of its dangerous character, and further well knew that it was constantly used by pedestrians and vehicles.
In these respects it is charged that defendants violated the mandatory provisions of Act No. 12 of 1924. This is error as this Act does not apply to cities of a population of more than 10,000, and Alexandria's population exceeds this number.
Defendants filed separate answers. Plaintiff's counsel now admits that the Texas & Pacific Railroad Company cannot be held responsible to him for the results of the accident. For this reason we omit epitome of this defendant's answer and also of the allegations of the petition designed to encompass it as a proper defendant.
The Missouri Pacific Railroad Company denies all of the allegations of the petition which purport to disclose lack of negligence on plaintiff's part as a cause or contributing cause of the collision, and likewise denies those allegations which affirmatively ascribe to defendant's negligence responsibility for the collision. It is specifically charged that plaintiff did not stop, look or listen for trains on said tracks before attempting to cross them, a duty imposed upon him by law; nor did he in any other manner exercise ordinary care for his own safety before entering said crossing, and for this reason he did not observe the approaching train hard by. These omissions of duty and acts of negligence, defendant alleges, primarily caused or, at least, contributed to the accident, and upon them as a basis a plea of contributory negligence is urged as a bar to plaintiff's recovery.
Plaintiff's demands were rejected and his suit dismissed. He has appealed. The judgment recites that plaintiff's demands against Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, are rejected. No mention is made of his demands against the Texas & Pacific Railroad Company.
Plaintiff was engaged in hauling pine knots to the plant of a company located less than a mile east of the situs of the collision. He made two or three trips over the crossing daily, some being at night, and was returning home from a delivery when the accident happened. He was accompanied by a young man by the name of Mosely, who was killed in the accident. The truck was without a cab, had a windshield and its headlights were burning brightly. Its driver could see in all directions without obstruction of any kind.
We are convinced from the testimony that the truck was moving at a speed of from 20 to 25 miles per hour when the collision occurred. We are as equally convinced that plaintiff did not bring it to a stop before trying to cross the tracks. He testified that he did so and then looked and listened for trains, but saw none. His own petition does not aver that he stopped. In a written statement a few days subsequent to the accident, he declared that he slowed down at the crossing but did not stop. To some of the train crew immediately after the collision, he stated that he was hurrying home and that his windshield was covered with mud. He observed the train in time to jump from the truck and save his own life. Undoubtedly had he stopped the truck and looked for a train, he would have seen it in time to avoid the collision, especially if he had been traveling no faster than as testified to by him. The elevation of the tracks was not over two feet above that of the graveled road. In said written statement he said he heard someone holloing just prior to the impact, but paid no attention to it, thinking perhaps that it came from some negro houses near by. He saw no lights on the cars.
C. C Lowery and R. L. Hickman were switchmen on the moving train. Each was on top of the car which collided with the truck. We are convinced from their testimony that each held a lighted lantern in his hand as the train approached the crossing. Each lantern diffused a...
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Allen v. Texas & Pacific Ry. Co., Civ. A. No. 2873.
......" (Emphasis ours.) . See, Hutchinson v. Texas & N. O. R. Co., La.App., 33 So.2d 139; Alanza v. Texas & P. Ry. Co., La.App., 32 So.2d 341; Ashy v. Missouri Pac. R. Co., La. App., 186 So. 395; Slayter v. Texas & P. R. Co., La.App., 182 So. 343; Winfiele v. Texas & P. Ry. Co., La.App., 150 So. 43; Perry v. Louisiana & A. Ry. Co., La.App., 142 So. 736; Consolidated Companies v. Yazoo & M. V. R. Co., 155 La. 233, 99 So. 203; Young v. Louisiana Western R. Co., 153 La. 129, 95 So. 511; Andrepont v. ......
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