Tucker Et Ux. v. Illinois Cent. R. Co

Decision Date11 June 1917
Docket Number20181
CourtLouisiana Supreme Court
PartiesTUCKER et ux. v. ILLINOIS CENT. R. CO
SYLLABUS

(Syllabus by the Court.)

Where a person approaches a railroad track of which he has an unobstructed view without looking or listening for a train and reaches a point in such proximity to the track at the moment of the passage of a locomotive drawing a heavy passenger train, that he is struck and killed by the steam chest projecting from the side of the boiler, he is guilty of negligence, continuing and concurring with whatever other negligence there may have been as a contributing cause of the accident, which precludes the recovery of damages by his relatives, who, under the statute, might otherwise have that right.

Whether in such case, where the original plaintiffs, the parents of the decedent, die after the appeal from a judgment in their favor has been lodged in this court, an administrator can prosecute the suit, is a question that is not raised, and upon which we express no opinion.

Hunter C. Leake, of New Orleans, and Bolivar E. Kemp, of Amite (Blewett Lee and R. V. Fletcher, both of Chicago, Ill., of counsel), for appellant.

Ponder & Ponder and R., C. & S. Reid, all of Amite, for appellees.

Statement of the Case.

OPINION

MONROE, C. J.

Defendant has brought up this appeal from a judgment condemning it to pay $ 10,000 as damages said to have been sustained by plaintiffs in the alleged negligent killing of their son, a young man about 28 years of age, who lost his life under the following circumstances, to wit:

Defendant has a double track running north and south through Railroad avenue in the town of Ponchatoula. The tracks, which are between 8 and 10 feet apart, are crossed at a certain point by Pine street, which is, say, 100 feet wide; and 400 feet to the northward there is another street crossing. Upon the evening of March 27, 1912, near 8 o'clock, a through freight train was passing to the northward upon the eastward track, and as it was crossing Pine street the decedent was approaching Railroad avenue on Pine street from the westward and passenger train No. 3, not scheduled to stop at Ponchatoula, was approaching the same point, going south on the westward track. Decedent walked along towards the freight train in a leisurely manner, smoking a cigar, and his attention was possibly attracted by a light upon the caboose at the rear end of the freight train, about which there is said to have been something peculiar, but, whether for that reason or because he was otherwise preoccupied, he failed to turn his eyes in the direction of the passenger train, and continued his walk until, coming to a point within reach of the steam chest which projected from 14 to 20 inches from the side of the boiler of the locomotive, he was struck thereby upon the head, his skull shattered, and he died immediately. The evidence satisfies us that the engineer had blown the station and crossing whistles, including one long and two short blasts for the crossing above Pine street; but it appears that his attention had also been attracted by the light on the caboose of the freight train, which he at first thought to be a semaphore signal, and he accordingly put on his brakes and checked the speed of his train. When about midway between the street above and Pine street, however, he discovered that the caboose light imported no particular significance, and he released his brakes; but he then saw the decedent approaching the track in front of him, and realizing that he was oblivious of the proximity of the train, he, by the use of both hands, at practically the same moment sounded the alarm whistle, set in motion an automatic bell, and applied the emergency brakes, thereby, according to his uncontradicted testimony, making the shortest stop possible with the use of the most approved appliances. The record contains no testimony on the subject, but it is said in one of the briefs that the town of Ponchatoula has a population of between 700 and 1,000 persons (probably scattered over a good deal of territory), and there is testimony to the effect that Pine street is the principal thoroughfare over which the neighboring farmers come and go at certain seasons, but no one testifies that they ever congregate at the railroad crossing or that there is any traffic over the street in the latter part of March near 8 o'clock in the evening, and at the moment of the accident there appear to have been less than half a dozen people in the neighborhood. It was conceded in the argument that there is no ordinance regulating the speed of passing trains, and counsel for plaintiff say of the train in question, 'train No. 3, or the 'Panama Limited,' as it was then known, was the finest train belonging to the defendant, and was composed of first-class cars, sleepers, and equipment,' to which they add, 'It is a known fact that such trains make little noise.' One of the witnesses, who was town marshal and had held that office for a number of years, was related to plaintiff, and was called in his behalf, testified that he had been seated near a 'milk shed' on Railroad avenue a few feet above the...

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32 cases
  • Gibbons v. N. O. Terminal Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 5 Enero 1925
    ... ... and T. R. and S. S. Company, 139 La. 763, 72 So. 222; ... Nolan vs. Illinois Central R. Co., 145 La. 483, 82 ... So. 590; Young vs. Louisiana Western R. Co., 153 La. 129, 95 ... 100, 80 So. 214; Young vs ... Louisiana Western R. Co., 153 La. 129, 95 So. 511; ... Tucker vs. Illinois Central R. Co., 141 La. 1096, 76 ... The ... argument of plaintiff would ... ...
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    • 5 Marzo 1951
    ... ...         In Tucker" v. Illinois Cent. R. Co., 141 La. 1096, 76 So. 212, 213, the Louisiana Supreme Court said: ...  \xC2" ... ...
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