73 So. 606 | La. | 1916
John E. Wright, husband of plaintiff, and four other men, were in the act of crossing the track of the defendant company’s railroad in an automobile on Eastern avenue in the city of Crowley, on a bright Sunday afternoon in April, when the automobile was struck by a fast passenger train of the defendant company, and he and one of his companions on the back seat of the automobile were killed. Plaintiff sues in damages in her own behalf and that of their minor children for his sufferings and death.
The other three men survived and testified in the ease.
The evidence shows a speed of at least 30 miles an hour. The engineer admits 25 to 30, which, we take it, is more likely to mean 30 than less. And the evidence shows that this crossing, although at the boundary line of the corporate limits which the train was entering, and although the closely built-up part of the city does not reach quite that far, is as much used as any other crossing of this city of 6,000 inhabitants.
The city ordinance regulating the speed of trains located the speed limit several streets further inside of the city, and it is argued that this practically amounted to a permission to the railroad to run at ordinary speed at this crossing; but the rules of the defendant company provided that within the limits of Crowley the speed should, not exceed six miles an hour; and prudence would dictate that a crossing so near the built-up part of a city as to be used as any other crossing in the city should be approached at a less rate than thirty miles.
There is no suggestion that the chauffeur was inexperienced; but it is contended that the five men were a party of friends engaged in a common enterprise, each having equal control over the car, and equally responsible for its management. The facts in that connection are that Wright, Bonin, Andrus, and St. Germain, desiring to go from Lake Arthur, where they lived, to Rayne, distant some 40 miles, where the Lake Arthur baseball team was to play the Rayne team, bargained with Valdetero, the transfer man, who operated a regular automobile transfer be
The curtains of the automobile had been removed, and there was nothing to prevent Wright from seeing the railroad track had he been observant, especially as the danger sign usual at railroad crossings stared him in the face. The contention is that he should have observed the crossing and warned the chauffeur; and in support of this the case of Dixon v. V. S. & P. R. R., 139 La. 329, 71 South. 527, is cited. The occupants of the automobile in that case were not passengers for hire. The obiter dictum in that case, practically to the effect that a passenger on the front seat of an automobile is under the same legal obligation as the chauffeur to be observant, has no application to this case for the reason that Wright was not on the front seat; and as to its being good law in any case, quaere.
The car made this turn and approached the crossing slowly. The fireman had the car in full sight, but, very naturally, supposed it would stop, and not attempt the suicidal feat of crossing just ahead of the on-rushing train.
Wright survived the accident some 30 minutes, in a semiconscious state, and during that time suffered greatly. What pecuniary valuation could be placed on these sufferings it would be hard to say.
The jury allowed $8,000 to plaintiff individually and $2,400 to each of the five children, making $20,000 in all. In support of this verdict, and even for its increase, the cases of Bourdier v. Louisiana Western R. R., 131 La. 690, 68 South. 78, and Jones v. Kansas City Southern R. Co., 137 La. 178, 68 South. 401, where as large if not a larger amount was allowed, are cited by plaintiff, and numerous cases, where a smaller amount was allowed, are cited by defendant — all under circumstances more or less similar. There can be no fixed standard in cases of this kind. We think that an allowance of $5,000 to the plaintiff individually, and $2,-000 to each of the children, will do justice in the case.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be reduced to $5,000 in favor of plaintiff individually, and $2,000 for each of the five minor children, or $10,000 for the minors, and that as thus reduced it be affirmed. The plaintiffs to pay the costs of appeal.