Earhart v. New Orleans & Carrollton Rail Road

Labatjve, J. The plaintiff alleges, in substance, that the New Orleans and Carrollton Railroad Company is legally indebted unto him in the sum of @25,000; that, on the 31st January, 1860, petitioner’s son, Osborne C. Earhart, was thrown down and run over by a locomotive steam engine, driven on the track of said company by persons in its employ; that petitioner’s son was between ten and eleven years old, and standing then and there quietly, looking at the cars and train, when, suddenly and without giving any warning, one of the locomotives and trains backed and struck' the said Osborne, who was standing with his back to the said locomotive and train, crushing both Ms legs, which were amputated in the hope of saving his life, but that the operation was ineffectual; and soon after, on the 5th day of February, after having endured the most intense suffering, the said Osborne died; that the servants of said company, then in charge of said locomotive and train, managed them in a careless and unskillful manner, and that, by reason of this carelessness of said servants, his son Osborne suffered a cruel and painful death. Tour petitioner further shows that, by reason of this heavy calamity, [245] lie himself, Ids wife, tlie mother of the said Osborne, and the whole of petitioner’s family were and remain plunged in the deepest grief and affliction; and your petitioner has suffered damages from the illegal and wrongful conduct of the company, aboye set forth, to the extent of $25,000. He prayed accordingly. The defendant filed the following exception : The defendant herein, the New Orleans and Carrollton Railroad Company, excepts to plaintiff’s petition, and for cause of exception represents to this honorable court that said petition sets forth no lawful or valid cause of action; prays that said exception be sustained and plaintiff’s demand rejected. The District judge overruled the exception; verdict and judgment having been rendered on the merits, in favor of plaintiff, the defendant took this appeal. Before the passage of the act of 15th March, 1855, amending Art. 2294 of C. C., it was considered as settled that actions like the one at bar were purely personal, and not transmissible with the succession of the party sufferer, but died with him. The Supreme Court had said that it required a special statute to give this right of action to other parties. C A. 495. 11 A. 5. It is, in consequence of this, it is supposed, that the act above referred to was passed, reading as follows : “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in cases of death, in favor of the minor children and widow of the deceased, or either of them, and, in default of them, in favor of the surviving father or mother, or oither of them, for the space of one year from the death.” The plaintiff, to bring his case within the provisions of the statute, should have alleged the cause of action in, and the damages suffered by, his deceased child, and survived under the statute, in himself, plaintiff. But, on the contrary, he alleges the cause of action in himself as the sufferer of damages, to wit: “ He avers that, by reason of this heavy calamity, he himself, his wife, the mother of said Osborne, and the whole of petitioner’s family, were and remain plunged in the deepest grief and affliction, and your petitioner has suffered damages from the illegal 'and wrongful conduct of the company, as above set forth, to the extent of $25,000.” In the words of the statute, it is a legal subrogation in favor of the persons designated, to the right of action of the deceased sufferer; and, in case of a suit under that subrogation, the plaintiff should allege his cause of action as derived from the deceased, under the statute. It is therefore, ordered and decreed, that the judgment of the District court be annulled and avoided; it is further ordered and decreed, that the exception bo sustained and the petition dismissed, as in a case of non-suit; the plaintiff and appellee to pay costs in both courts. Howekd, J., recused.