88 So. 394 | La. | 1921
This is an appeal from a. judgment in favor of plaintiff for $7,500 damages for personal injuries. An automoDile in which he was crossing a railroad track was struck by the rear end of a freight train, which ran over him, and so mangled his leg that it had to be amputated below the knee.
The suit was brought first against the railway company, and judgment was prayed for against the receiver as such.
Subsequently, pursuant to General Order No. 50, issued by William G. McAdoo, Director General of Railroads, and the similar General Order No. 50-A, issued by his successor, Walker D. Hines, Director General of Railroads, plaintiff filed a supplemental petition, praying that the Director General should be made defendant and cited as such, and that, if the court should hold that the receiver of the railway company was not the proper party defendant, judgment should be rendered against the Director General. The railway company then appeared, through its receiver, and filed an exception to the suit against the railway company or the receiver, averring that, in consequence of the general orders referred to, plaintiff had no right of action against the railway company, and praying that the suit against the railway company should be dismissed. The exception or motion was sustained, and the suit against the railway company was dismissed, leaving the Director General of Railroads ás the only party defendant in the suit. Plaintiff reserved a bill of exceptions to the ruling, the benefit of which exception was expressly reserved by the court in the decree rendered against the Director General of Railroads. The latter was represented by the same attorneys who had appeared for the railway company and the receiver. The Director General of Railroads appealed from the judgment rendered after trial of the case on its merits; and plaintiff then appealed from the judgment, dismissing the suit against the railway company and the receiver. Plaintiff has also answered the appeal of the Director General of Railroads, and prays that the amount of the judgment be increased to $15,000.
The decision of this ease seems to have turned upon the question whether the flagman and the train foreman were stationed where the flagman should have been, to make it almost, if not quite, impossible for any one approaching the railroad track to be deceived by the fact that the gates were open. The foreman and the flagman both testified that they were in that position, and that the occupants of the automobile refused to heed their warnings. Their testimony, in that respect, is corroborated by that of the engineer on the •locomotive; but he was so far away from the scene of the accident that we do not believe it was possible for him to know exactly where the train foreman and the flagman were standing. Unless the plaintiff and his five witnesses testified to a deliberate falsehood, the foreman and flagman were not in a position where their lanterns could be seen from the automobile in time to prevent the accident. Being engaged in conversation, it is not improbable that the flagman and the foreman forgot for the moment that the barriers or gates were open; for the duty which the flagman was then required to perform was not ordinarily his, and was never the foreman’s duty. In fact, unless the plaintiff and his five witnesses testified to a deliberate falsehood, the train foreman and the flagman were not where the flagman should have been, and their lanterns were not observed by the occupants of the automobile, because the men with the lanterns were either behind'the end of the freight train or behind the little house usually occupied by the flagman, on the sidewalk, between the railroad track and the automobile. Be that as it may, the district judge found that there was a preponderance of evidence in support of plaintiff’s contention that the warning of danger was not given in time to prevent the accident; and we find no reason for a reversal of the judge’s conclusion in that respect.
The fact that one of the six soldiers who were riding in the automobile did not testify in the case is accounted for by the fact that he was sent away from Camp Beauregard soon after the accident, and was said to be in Germany at the time of the trial.
. [4] The amount of the judgment appealed from is the same that has been allowed for
The judgment appealed from is affirmed, at appellant’s cost.
On Motion To Amend Decree.
On the joint motion of counsel for both plaintiff and defendant herein, and upon their' suggesting that Janies C. Davis has succeeded Walker D. Hines as Director General of Railroads and Federal Agent under the Transportation Act (41 Stat. 456).
It is ordered ’that James C. Davis, Director General of Railroads and Federal Agent under the Transportation Act, be substituted as the party defendant herein; and the judgment herein rendered and affirmed is now therefore rendered against James C. Davis in his aforesaid official capacity.