91 So. 671 | La. | 1922
Lead Opinion
Plaintiff claims damages for the death of his minor son, charging same to the negligence of the defendant telegraph company and of the Director General of Railroads (operating the Texas & Pacific Railroad), hereinafter designated for convenience the railway company. The cause of action against the railway company is wholly apart from that against the telegraph company, and will he passed upon separately.
I.
II.
For the rest, we do. not know whether the boy looked or listened, or whether looking or listening would have done any good; but since the burden of proof as to contributory negligence is on defendant, it is a presumption of law that he did look and listen; and since the love of life is instinctive, especially in youth, it is also a presumption of fact that the boy gave some care to his own safety. Hence, since neither the evidence of the defendant nor that of plaintiff shows contributory negligence in the boy, no such contributory negligence will be presumed.
There is nothing in this record to indicate that the deceased approached this track otherwise than with his motion under full control. And the fact is that he unknowingly ran into a death trap where “two or three” men had been killed before.
The defense of contributory negligence is not sustained.
III.
The defense is that this defendant acted in good faith, upon representation made by the boy that he was more than 16 years old, and appeared to be so; and that in any event this employment was not the proximate cause of his death.
It may be that the good faith of the defendant is no excuse in such matters (Alexander v. Standard Oil Co., 140 La. 54, 68, 72 South. 806) ; but we find it unnecessary so to hold in this case. For we find here, as shown above, that between the alleged negligence of this defendant and the injury suffered by the boy, there supervened the culpable act of a third party for whom the defendant was not responsible, and hence the defendant’s alleged negligence was not the proximate cause of the injury.
We find it unnecessary to decide, and we do not decide in this case, whether the defendant would or would not be liable had the supervening act of the third person been nonculpable. That is left absolutely open. We mean here to decide only this: that since between the alleged negligence of this defendant and the alleged consequence thereof there did supervene the culpable act of a third person for whom this defendant was not liable, then it follows that the act of the other party, and not the alleged negligence of this defendant, was the proximate cause of the injury.
IV.
Decree.
The judgment appealed from is therefore reversed as to the Western Union Telegraph Company, and plaintiff’s demand as to that defendant is now rejected at his cost in both courts; and the judgment appealed from is amended as to the' Director General of Railroads, so as to reduce the amount allowed plaintiff from $10,000 to $5,000, but without interest (unless allowed by Congress). Plaintiff to pay the costs of this appeal, and the Director General to pay all other costs.
Rehearing
On Application for Rehearing.
The Director General of Railroads has applied for a rehearing. Plaintiff has applied for a rehearing on the question of allowing legal interest on the judgment from the date of judicial demand, and on the question of liability of the Western Union Telegraph Company. Plaintiff requests, however, that a rehearing on these questions be not granted unless the rehearing applied for by the Director General of Railroads be granted: Our conclusion that the Director General of Railroads is not entitled to a rehearing disposes of plaintiff’s alternative application. Our refusal of a rehearing, therefore, is not an affirmance, by the members of Section B of the court, of the doctrine on which the court has rejected plaintiffs demand for legal interest from judicial demand, according to Act 206 of 1916; nor do we affirm the doctrine on which the Western Union Telegraph Company has been declared not liable in this case. The judgment rendered against John Barton Payne, Director General of Railroads, and his successors in office, is a judgment against the newly appointed Director General of Railroads and Federal Agent under the Transportation Act (41 Stat. 456), James C. Davis, or his successors in office. The applications for rehearing are denied.