Wells v. Morgan's Louisiana & T. R. & S. S. Co

• Decision Date: 05 April 1920
• Docket Number: 22403
• Citation: Wells v. Morgan's Louisiana & T. R. & S. S. Co, 84 So. 493, 147 La. 58 (La. 1920)
• Parties: WELLS v. MORGAN'S LOUISIANA & T. R. & S. S. CO
• Court: Louisiana Supreme Court

84 So. 493

147 La. 58

WELLS v. MORGAN'S LOUISIANA & T. R. & S. S. CO

No. 22403

Supreme Court of Louisiana

April 5, 1920

Rehearing Denied May 3, 1920

Appeal from Thirteenth Judicial District Court, Parish of Rapides James Andrew, Judge.

Action by Mrs. Florence Edna Wells against the Morgan's Louisiana & Texas Railroad & Steamship Company. From a judgment for plaintiff, defendant appeals.

Judgment set aside, and suit dismissed.

White Holloman & White, of Alexandria, for appellant.

Blackman, Overton & Dawkins, of Alexandria, for appellee.

PROVOSTY, J. MONROE, C. J., O'NIELL, J., concurs.

OPINION

PROVOSTY, J.

Plaintiff sues in damages for the death of her husband, who was killed by a train of the defendant company.

The right of way of the defendant company is fenced in, and has cattle guards at the road crossings. The accident occurred on a plantation where the train stops on being flagged. There is no depot there, nor anything else to mark a regular spot at which to stop; but the contention of plaintiff is that invariably the train had been stopping short of the plantation road which crosses the track, and short also of the cattle guard on the side of this road. We do not find this to be so, but find on the contrary, that on this plantation, as at all other like irregular stopping places, with nothing to mark any particular spot for stopping, the train stops for picking up would-be passengers as may be most convenient for them to get on -- at the crossing as readily as short of it. However, we will deal with the case as if this invariable custom of stopping short of the cattle guard were established. For boarding the train when it stops short of the cattle guard, the would-be passenger has to cross the fence inclosing the right of way, and he does this by walking over the cattle guard. This is what deceased did, escorting a guest who desired to take the train. They walked along the track to where they thought the passenger would have to stand for boarding the train and flagged it, and, when it signaled that it would stop, deceased bade his guest good-bye, and started to walk back on the track towards the cattle guard and the crossing. He was then 80 feet from the cattle guard according to the averment of the petition, but only 50 feet according to the testimony of the guest. After he had crossed the cattle guard, the guest, seeing him still on the track with his back towards the approaching train and apparently unmindful of it, called out to him to hurry on, and he answered that he was "all right." When he was struck he had left the track, but was still on the end of the cross-tie. He was 70 years old, but active, and neither blind nor deaf. The engineer says that when the signal to stop was given him the train was going 45 miles an hour and down grade; that he took the proper measures for an ordinary stop; that when he got to about 500 feet from the crossing one of the men stepped upon the track and "went walking right in the center of it"; that he then sought to make an emergency stop, and gave alarm whistles, but that the stop was no shorter, because the supply of air for the brakes had been already exhausted in the application for the ordinary stop.

This engineer was competent, and there can be no question but that he was vigilant. He knew that the man ahead on the track was fully aware of the approach of the train, for this man had just flagged the train. He had therefore every reason to believe that the man would not stay on the track. The fireman was ringing the bell. He so testified, and so did one of the plaintiff's witnesses. When the engineer saw that the man was not getting off the track, he blew the alarm signals. We do not believe that he waited too long for doing this. He says not, and he certainly was the best judge in the matter and the fact is he would hardly have blown these alarm whistles at all if it had not been because he thought they would have the effect of getting the man off of the track. The would-be passenger, who was 80 feet from the cattle guard, says that the alarm whistle was blowing when the locomotive passed him. The witness Carroll would have it that the "toot-toots" of the whistle were practically simultaneous with the collision; but he was so evidently a prejudiced witness that his estimates of time and distance (which kind of estimates are unreliable under such circumstances from the best of witnesses) are hardly to be relied on. The witness Meeker heard the "toot-toots," and immediately thereupon heard the witness Carroll exclaim that the train had struck deceased. The witness Sweetman heard the "toot-toots," and turned around and looked, and saw deceased up in the air; and the witness Reagan heard the "toot-toots," and immediately heard the witness...