Tatum v. Rock Island, A. & L. R. Co

• Decision Date: 29 November 1909
• Docket Number: 17,580
• Citation: 50 So. 796,124 La. 921
• Parties: TATUM v. ROCK ISLAND, A. & L. R. CO
• Court: Louisiana Supreme Court

50 So. 796

124 La. 921

TATUM v. ROCK ISLAND, A. & L. R. CO

No. 17,580

Supreme Court of Louisiana

November 29, 1909

Appeal from Fourth Judicial District Court, Parish of Union; R. B Hawkins, Judge.

Action by R. M. Tatum, tutor, against the Rock Island, Arkansas &amp Louisiana Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and suit dismissed.

Thos S. Buzbee and Barksdale & Barksdale, for appellant.

Frederick F. Preaus and Clifton Mathews, for appellee.

OPINION

LAND J.

Plaintiff, representing his minor son, sued the defendants for $ 20,000 damages for personal injuries sustained by the minor's mother, and for her resulting death, caused by the alleged negligence of the defendants in the operation of one of their freight trains.

There was judgment in favor of the plaintiff for $ 2,000 against the Chicago, Rock Island & Pacific Railway Company, and there was judgment in favor of the Rock Island, Arkansas & Louisiana Railroad Company rejecting plaintiff's demand as against said corporation.

The Rock Island & Pacific Railway Company (hereinafter referred to as the defendant) has appealed, and the plaintiff has joined in the appeal by answer, and prayed for an amendment of the judgment by increasing the amount to the sum claimed in the petition.

Mrs. Martha J. Tatum, wife of R. M. Tatum, and the mother of the minor, Henry G. Tatum, was on January 18, 1908, struck by a freight locomotive of the defendant company, and mortally wounded. She died on January 31, 1908. The accident happened at the station of Lillie about 6:15 p.m., and as Mrs. Tatum was attempting to cross the track immediately in front of the locomotive.

It is charged, and admitted, that the said locomotive had no headlight burning when it passed the station.

It is further charged that defendant was negligent in not sounding either the whistle or bell as the train approached said crossing, and in not stopping or slacking its speed while passing through said town.

The defense is a denial of the alleged charges of negligence and a plea of contributory negligence.

Lillie is a small station on the defendant railroad. It is not an incorporated town or village. The railroad depot, a few stores, houses, and other buildings are situated on the west side of the defendant's track. The only structures on the east side are a cotton seed warehouse, and a boarding house kept by one Mrs. Buckley. A trail or pathway about 25 paces long led from Mrs. Buckey's to the switch track at a point some 75 yards south of the depot. Thence pedestrians used one of the tracks or the space between them in going to the station house.

In the afternoon of January 18, 1908, Mr. and Mrs. R. M. Tatum and their daughter-in-law, Mrs. P. A. Tatum, came to Lillie for the purpose of taking the north-bound passenger train. On being told that the train was reported as 40 minutes late, the three went over to Mrs. Buckley's to get supper. There they remained about one hour. Immediately after the party had finished supper, the whistle of an approaching train was heard. Some one at the table remarked that it was the passenger train, but another said it was a freight train. The Tatums hurried out of the house, and along the path towards the tracks. Mrs. P. A. Tatum led, followed by Mrs. R. M. Tatum, and her husband brought up the rear. On reaching the switch track, Mrs. P. A. Tatum, seeing that it was a freight train without a headlight, stopped, and turning around, saw her mother-in-law running about 40 feet behind. Mrs. P. A. Tatum testified in part as follows:

"She was running, and I told her that it was no use to try to get across; that it was a freight. I thought she stopped, but she did not hear me, and I supposed she stopped. She passed right back of me. Uncle Dick (Mr. R. M. Tatum) was behind her, and I turned around and told him that it was a freight; that there was no use to try to cross. My back was to her. * * * I thought she heard what I said.

"Q. She was really going across the track before you knew she was going to try to cross, was she not?

"A. Yes, sir.

"Q. She was running directly across the track, was she not?

"A. Well, she was running pretty fast, and I don't know whether she was going directly across or not. She was crossing the track when I saw her.

"Q. The last you saw of her before she crossed was she not jumping on the track, or jumping across the track, with her skirts lifted or gathered up, in the act of jumping?

"A. Yes, sir; she was in the act of making a leap.

"Q. Did you see her when she ran across the first track?

"A. No, sir; I did not see till she got on this track that the train was on.

"Q. She was on the first track when you turned around to speak to Mr. Tatum?

"A. Yes, sir."

Mr. R M. Tatum heard the whistle, and, when he reached Mrs. Buckley's gate, saw the lights on the rear end of the train, but supposed that they were on the locomotive, and that his party would have "plenty of time to get ahead of the train and get to the depot." Mr. Tatum intended to go to the tracks, and thence up to the tracks to the station house. When Mr. Tatum reached the first track, he saw a freight train passing. When the train passed, his daughter-in-law crossed and found Mrs. Tatum lying on her back. Mr. Tatum testified that his wife was the first to leave the boarding house, and it does not appear from his evidence that he saw her afterwards until she was found lying on the ground beyond the main track. When he first saw the lights on the train, he supposed that they were 75 or 100 yards away and he had plenty of time to cross the track. Supposing that the lights were on the locomotive of a passenger train, Mr. Tatum and his party undertook to reach and cross the track before the train arrived at a point opposite the path they were travelling. Mrs. P. A. Tatum realized her mistake in time to save herself and Mr. Tatum. But unfortunately Mrs. R. M. Tatum did not hear or heed the warning given by her...