Deikman v. Morgan's Louisiana & Texas Railroad

The opinion of tlie Court was delivered by McEnery J. The plaintiff sues the defendant Railroad Company for injuries sustained in consequence of a collision between a train o f cars of the defendant anda wagon driven by plaintiff, in the City of New Orleans, near 7 o’clock p. m., at the Barracks street railroad crossing, on March 17th, 1887. The testimony, as is usual in cases of this character, is conflicting. But from a careful and attentive review of the statements in the record, we think the following facts are conclusively established. On the evening of the 17th of March, 1887, about 7 o’clock, the incline engine of the defendant company coupled on to six freight cars for the purpose of placing them on defendant’s transfer boat, and began to hack them in the direction of the Barracks street crossing. This was the only practical way to put the cars on the transfer boat. The train was running at a reasonably slow rate of speed, not exceeding four miles an hour. The electric light at the crossing gave at this time a sufficient light to make plainly visible for some distance the surroundings at the crossing. There were no obstructions to prevent a full view of the crossing from the 3d District Ferry Landing, and the approach of trains from the direction of Hospital street, the direction from which the train come at the time of the collision. The Third District Ferry boat landed about the time the defendant company’s train was moving towards the crossing, 'three vehicles were driven from tlie ferry slip towards the crossing, the first two were driven at a comparatively rapid speed and successfully made the crossing when. [791] the train was some seventy-five feet from them and approaching them. The third wagon driven by plaintiff was ten or twelve feet behind second wagon. The horse was driven on the track and one wheel of the wagon, crossed the first rail of the track. At this time the train was within a short distance of plaintiff’s wagon, some ten or twelve feet. The flagman was at the crossing, he flagged down plaintiff’s vehicle as he had flagged down the other two wagons which had successfully passed over the track. The plaintiff failing to heed the signal, the flagman halloed to plaintiff to stop, or back, and as he still continued in his course, he seized his horse and endeavored to get the wagon from its perilous position. The horse’s head was turned until the first wheel of the wagon was parallel with the track, and it became fastened so that it was impossible to get the wagon off in time to prevent the collision which threw plaintiff from it and injured him. The train in consequence of the efforts made before the collision, passed on a few feet and was stopped. While the train was backing the bell was continually rung. Every reasonable effort was made by defendant’s employees to avert the accident. The signal to stop was given, the brakes applied and the engine reversed. The train hands were in their respective positions and were discharging their duties. There were lights at least on the top of the train. These were used as well as the loud voices of the employees to warn the plaintiff of his danger. All these warnings were given and the efforts to stop the train made as soon as it was evident that the plaintiff was in danger, that is as soon as he had reached the track. .The crossing, like others in populous cities, is dangerous. The railroad company is bound to take extraordinary precaution for the protection of the public at such places in the management and handling of its trains. Employees of railroad companies must always be vigilant and attentive, and their responsibility must be measured by the dangerous conditions which confront them; the greater the danger, the greater the vigilance and attention. It would be the greatest carelessness and negligence for a railroad company to fail in any of the requirements necessary to protect the public, at a crossing where persons.and vehicles are constantly passing - There is an obligation also on the part of the public to be vigilant and attentive when passing over a crossing where passing trains may be frequently expected. Counsel for plaintiff says in his brief : “Of course there can be no question, that if the court finds that the flagman was there, it was the greatest negligence on the part of plaintiff to undertake to drive by him.” We are convinced that the flagman was at the crossing, and gave timely warning to the plaintiff. [792] Plaintiff^ witnesses prove that a flagman was kept at the crossing before and after the accident, but on this particular night they did not see him at the crossing. There mnsthave been some obvious reason for his absence from his post of duty on this particular occasion. The company must have ceased placing a flagman there, or he might on his own responsibility, have quit his accustomed place. Neither of these facts is shown. The plaintiff states that some one halloed to him to stop or back when he got on the track, and in obedience to this he pulled his horse back. The evidence shows that the horse’s head was turned so that one of the front wheels was parallel to the track. Who was it that halloed to plaintiff 1 The plaintiff does not know who it was. But other witnesses identified the party who halloed to plaintiff •as Fitzgerald the flagman, who also seized the horse and turned his head towards Canal street, thus placing the wheel parallel to the track. ‘The plaintiff did not hear the bell ringing, or the noise of the cars in motion. He did not see the flagman, or his signals, the lights, or the ■cars or anything to warn him of the approach of the train. The evidence shows had the plaintiff been governed by ordinary prudence in using Ms sight and hearing, he would have seen the train in motion, the flagman at the crossing, his signals in his efforts to arrest the course •of plaintiff, he would have heard the continuous ringing of the bell and the noise of the train. The plaintiff was evidently paying attention only to the wagons ahead of him, and as these had passed in front of the moving train, ho thought he could also do so with safety. After the second wagon had passed he was warned in sufficient time to prevent Ms attempt to cross the track. There was no violation, no neglect of any of the ordinary and necessary precautions, which could have led him to believe it was prudent to make the attempt. There is not sufficient evidence to establish the fact contended for by plaintiff, that there was a hole in the track, “longer and •deeper than should have been,” caused by the neglect of plaintiff to repair the same, in consequence of which plaintiff’s wagon was unable to be moved from the track in time to prevent the collision. The plaintiff has failed to show that the accident in consequence of which he received his injuries, was due to the neglect of the defendant •company, and that he was guilty of no negligence which aided in the accident. It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment appealed from be set aside, annulled aud reversed, and it is now ordered adjudged and decreed that the demand •of plaintiff be rejected, with cost of both courts.