13 So. 2d 78 | La. Ct. App. | 1943
On the night of August 14, 1941, between 11 and 12 o'clock, while plaintiff was returning from New Orleans to his home in Donaldsonville, the Packard automobile which he was driving stopped and stalled on the highway crossing over the *79 railroad track about a mile north of Burnside station in Ascension Parish. The automobile was struck by a passenger train going north, and the car was carried north for several hundred feet from the point of impact and completely demolished. In this suit plaintiff seeks to recover the sum of $1,417 from the defendant railroad as damages made up of the following items: value of the demolished car, $795; radio, $60; seat covers, $12; merchandise in the car destroyed in the wreck, $50; for personal injuries and shock sustained by him when he jumped out of the car on the approach of the train, bruising his leg on the gravel, the sum of $500.
Liability for the damage is sought to be placed on the railroad because of its failure to properly maintain the highway crossing, the roughness of the crossing causing plaintiff's car to stall on the railroad tracks; the failure of the train crew to keep a proper lookout, and their failure to see the stalled car on the track in time to stop the train before hitting the car; the excessive speed at which the train was being operated (alleged to be 80 miles per hour); and finally, the train crew had the "last clear chance" to avoid the accident after they saw, or should have seen, the car stalled on the track.
Several pleas and exceptions were filed, but all of these have passed out of the case, and it is not necessary to mention or discuss them. One defense urged by the railroad was that the train which struck the automobile did not belong to the defendant and was not being operated by its employees, however, in their briefs in this court, counsel for the defendant railroad company have abandoned that defense and have rested the defense solely on the merits. The railroad denies that its agents and employees were guilty of any negligence, and avers that the plaintiff was guilty of negligence in many respects, which negligence was the sole and proximate cause of the accident. Among the acts of negligence charged to plaintiff were his failure to stop, look and listen before going on the track at the crossing; his failure to make any effort to flag the train after his car stalled on the track; that he was driving a car which he knew to have a defective starter and which car was otherwise defective and unsafe.
The trial judge rendered a judgment in favor of the defendant, rejecting plaintiff's demands, and he has appealed.
There is no great difference in the evidence as to the facts. The motor of plaintiff's car went dead just as his car got on the track at the crossing. He made an effort to start the car but was unsuccessful in doing so. In a few moments he saw the glare of the headlights of the on-coming train from the south, whereupon he jumped out of the car and in attempting to get out of the way of the train, he claims that he scraped his right leg on the gravel, causing some bruises on it. The train struck the automobile almost broadside, carrying it up the track. South of the crossing there is a curve in the railroad track for a distance of some 450 feet, the curve turning to the right on approaching from the south.
We will take up in the order above mentioned the alleged acts of negligence on which the plaintiff seeks to place liability on the railroad company.
The evidence in the record shows a rather sharp curve in the track for a distance of some 450 feet south of the crossing, and it is easy to determine from the map and pictures of the track near the crossing that the beam of the headlight from the locomotive would not reflect on the crossing until the train was within 350 or 400 feet of the crossing, and it is obvious that the trainmen saw the stalled car on the track just as soon as it was possible for them to see it as the train came around the curve. Indeed, the plaintiff himself says that he first saw the headlight of the train when it was about 300 feet down the track coming around the curve.
Of course, if the track had been straight, the engineer, according to his own statement, should have seen the stalled car in ample time to stop the train, but, on account of the curve in the track, he saw the car just as soon as it was possible for him to see it. As we said in the recent case of Griffin v. Thompson,
As there was no negligence shown on the part of the operators of the train, it is unnecessary to consider the acts of contributory negligence charged to the plaintiff.
Finding no error in the judgment appealed from, the same is hereby affirmed at the cost of the plaintiff in both courts.