Stevenson v. New Orleans Pacific Railway Co.

The opinion of the Court was delivered by Poché, J. Plaintiff sues for the value of six mules alleged to have been killed on his plantation in the Parish of St. John the Baptist by passeDger trains of the defendant Company, through the gross negligence and carelessness of its employees. The uncontested facts of the case are: that the mules were all owned by plaintiff; that one of them was killed in the night of October 20th, and the five others in the evening at dark of November 6th, 1881. The District Judge allowed to plaintiff $150 for the animal killed in October, and rejected his demand as to the five others as in case of non-suit. He appeals and defendant moves to amend the judgment, so as to defeat his entire demand. Plaintiff contends that the proof of the destruction of his property by tbe trains of the Company throws upon the defendant the burden of proving justification or want of negligence. But he has signally failed to refer us to any authority, either of law or of jurisprudence, in support of his proposition. Although the question is not new, and has been frequently considered by our own Courts, yet in view of the importance of the question, in connection with the increased construction of railroads in this State, we have been at great trouble to examine all the authorities within our reach on the proposition so seriously advocated by plaintiff’s counsel. Our researches have led us to the conclusions previously reached and announced by our predecessors in this Court. Hence, we recognize the rule that iu such suits for damages the plaintiff must make his case certain, and that the burden is upon him to prove that the alleged injury to his property was the result of negligence or carelessness of the defendant or of its employees. And we further hold that in this State there is yet no general statute compelling railroad companies to fence in their tracks. Knight vs. Opelousas [500] Railroad, 15 An. 105; Perkins & Billiu vs. Morgan, 27 An. 229; Pierce on Railroads, p. 428; Wharton on Negligence, Sec. 899; Thompson on Negligence, vol. 1, p. 512, Sec. 15; Wait’s Actions and Defenses, vol. 4, p. 684. From the record it appears that no one testifies as to the circumstances of the first accident which occurred in October, and that no one except the engineer and the fireman on the train saw the accident of November 6th. The testimony of the engineer, corroborated by that of the fireman, shows that the train was on time, and was running at its usual rate, eighteen miles an hour; that the day had been very rainy, and that darkness, accompanied by hazy and foggy weather, came unusually early, so much so, that he felt prudent to light his headlight at a station twenty miles west of that where he usually lighted, more than an hour earlier; that the mules were not standing on the track, and hence, he did not and could not see them in advance; that he saw them in the act of crossing the track when the train was only a hundred feet, from them; that he at once reversed his engine and put down the brakes, but that he had been unable to prevent the collision; he further states that he stopped his train and drove off the track some twenty-five mules which had followed those which he had collided with. This testimony is in part contradicted, but it has impressed us as being true and fully decisive of the case. The plaintiff, who was a passenger on that very train, denies that the train stopped at all on that plantation. But from his own evidence it appears that he was seated in the rear car, engaged in conversation with a friend, and that he did not notice the accident, and knew nothing of it until informed of the same by letter from one of his employees. If he did not perceive the shock which killed five mules, it is very natural that he might have overlooked the fact that the train had come to a full stop at that particular point. His testimony and that two or three of his laborers, who did not see the collision, but who emphatically swore that the train went by at great speed, and did not stop or slack up, truthful though it may be, is at best negative evidence, and cannot outweigh the affirmative testimony of the two persons who, above all others in or off the train, had. the safest and exceptional opportunity of knowing when and where the train did stop The engineer’s testimony on this point is, besides, corroborated by his written report of the accident made to his superior officer the very next day, and at a time not suspicious, when he could not possibly anticipate contradiction as to his statement that he had stopped his train at that point, and that he had lighted his headlight [501] before reaching the place where the accident occurred, or that his train was on time that evening. The latter circumstance indicates an element of contributory negligence on the part of one of plaintiff’s own employees who had immediate charge of the plantation mules. The record shows that the railroad track does not lie in plaintiff’s pasture or enclosed field; that the mules had for some weeks been allowed to graze in a pea field and in a harvested rice field, and that only two trains passed that point each day, and none in the night; and that the east-going train, to which the accident occurred, was due in the evening between five and six o’clock. Now, in testifying about the-first accident, plaintiff states that his orders were to “ put them ” (the mules) “ in there (the pea field) at night, but always after the train had gone down, so there would be no danger.” For the same reason, as the mules which were injured at the second accident had to cross the railroad track to come and go between the stable lot and the rice field, it was the duty of the stock minder to see that the mules would not cross the track at the time when the train was due. On that evening the train was on time, and it is evident that the stableman did not perform his duty. We gather from his own testimony that such was his duty. He says : “ Of course, it was my business to go and see after hearing the report of the ears there, which I did as quick as I could get there. I was in the quarters When the cars blowed. At the report of the cars herself I knew my business called me to see after it; but of course I could not walk from the quarters after hearing the tooting and get there at the presen t moment.” When he reached the spot the accident had occurred. His reasoning is as rational as his negligence is apparent. Our examination of the evidence has satisfied us not only that plaintiff had utterly failed to prove culpable negligence on the part of defendant, which was the essential condition of his right of recovery, but that defendant has succeeded to show an absolute want or absence of negligence on the part of its engineer. As stated in the first part of this opinion, the record is barren of any evidence on the circumstances of the first accident, by which one mule was disabled. Hence, it is apparent that no culpable negligence therefor is proved against the Company, and we, therefore, conclude that there is error in the judgment holding the defendant liable for that animal. The judgment appealed from is, therefore, reversed, in so far as it condemns the defendant to pay one hundred and fifty dollars for the animal killed in October, 1881, and all costs of suit, and it is ordered that the demand for the value of said animal be rejected as in case of [502] non-suit, and that plaintiff pay costs in both Courts; and that as thus amended said judgment be affirmed. Manning, J., dissents, and will file his reasons hereafter.