Ingram v. Louisiana & N. W. R.

SOMMERVILLE, J. Plaintiff was employed -by defendant railroad company as section foreman, having supervision of some 6 miles of track, embracing the track on a trestle or bridge running some 1,600 feet over Black Lake, in Natchitoches parish. This bridge was at an average height of some 23 feet. While traversing this bridge plaintiff was overtaken by a locomotive drawing a logging train, and he was very severely injured. The railroad company leased some 3 miles of its tracks tó the Frost-Johnson Lumber Company and its assignees, including the 1,600 feet of track over Black Lake. The lumber company assigned its lease to the Prestige-Buchanan Logging Company, which company was operating the train at the time of the accident referred to. Plaintiff sues the three companies named, in solido, for $15,000 in damages. There was trial by jury, and a verdict and judgment, for $10,000, from which the three defendants have appealed. A large amount of evidence is found in the-record, and it has been fully discussed orally and by brief. We have considered it carefully, and we think -with the jury that plaintiff has made out a ease against defendants. He was on a hand car, returning home from work at the close of the day, when he, and the men with him, saw the locomotive and logging train approaching from the opposite direction. He and his men had a right to [935] be on the track. It was their duty to keep this certain section of track in good order and repair. They signaled the oncoming train, which signaled in return for them to retrace the way they had come; and they immediately obeyed the order, but the engineer on the locomotive was evidently driving the logging train at a great rate of speed, regardless of the rule of the railroad company to run at a rate not to exceed six miles an hour over the bridge. He was running at a rate of speed several times six miles an hour, and in utter disregard of life and safety of property. [1] It was the bounden duty of the engineer when he saw the hand car with its load of human freight on the track some 1000 feet distant to have stopped his train in time to have avoided the accident and resulting damages. He had a clear chance to have done so, and it was negligence on his part not to have done it. His conduct on the occasion was willful and criminal. This conclusion is strengthened by the remark of the engineer on the evening of the accident to the effect that “he [the section foreman] met the wrong man this evening.” It appears that on another occasion, or occasions, plaintiff had met another engineer who had backed off the bridge to permit plaintiff to continue his journey. Defendants charge that plaintiff was negligent in not stopping, looking, and listening when he started to cross the bridge. We have seen that plaintiff’s duty required him to be on the track. But, if he had been negligent, defendants had the last clear chance to have avoided the accident, and they did not avail themselves of it. Plaintiff and his men reversed their hand car as signaled by the engineer, and they earnestly tried to run out of the way of the oncoming locomotive. Defendants claim that plaintiff and his men should have jumped from the hand car. If they had jumped, the hand car would have remained on the track, there would have been a collision, the train perhaps derailed, and all parties killed. The wiser plan was to dq as plaintiff did, and as ordered by the engineer of the locomotive, to try and get out of the way. [3] It was inconceivable on plaintiff’s part that the engineer would ruthlessly run him and his men down. The engineer seeks to excuse himself by claiming that one of the air brakes on his locomotive was defective. If it was, it should not have remained defective. This is not a sufficient excuse to release defendants. But the testimony does not sustain this contention. If his engine had become suddenly defective, the engineer should have given a distress signal, which would have warned plaintiff to take the chances of jumping and saving himself, rather than to trust himself and his fellows to the humanity of defendant’s engineer. Plaintiff sustained a fracture of the leg, a sprained ankle, a contused shoulder, and injury to the back. These injuries are slight by way of comparison with what they might have been when the hand car came into collision with a rapidly moving train, and was knocked from a bridge or trestle some 23 feet high. [2] Plaintiff is entitled to both actual and exemplary damages; but we think the verdict is too high. The verdict and judgment appealed from are amended by reducing them to $5,000; and, as thus amended, the judgment appealed from is affirmed.