94 So. 436 | La. | 1919
Opinion on the Merits
On the Merits.
Plaintiff, above named, and' two others severally sue for damages, the
I.
The negligence originally charged was that the train gave no warning of its approach, i. e., sounded neither whistle nor bell as it approached the crossing. But the evidence .is overwhelming that the whistle was sounded at the usual place, about 1,200 feet from the crossing, and that the bell was rung continuously from thence to the crossing; and the only reason why the occupants of the Wagon did not hear it was the noise made by the wagon as it drove rapidly over the gravel road, and the talk and laughter of the occupants thereof, who were a party of ten on their way to a circus.
II.
III.
But the evidence shows that this station had been abandoned more than six weeks before the accident; that it was only a flag station; that not all passenger trains, and no freight trains at all, stopped there at any time. And finally, we know of no law, or regulation, or reason in common sense, why a railroad company should be obliged to stop all or any of its trains at all stations on the line of its roads.
IV.
The answer to this is that the train was about 150 feet from the crossing when the engineer first saw the wagon and realized that an accident was imminent; whereupon he immediately shut off steam and applied the emergency breaks in the hope of reducing the speed of the train and allowing the wagon to get over the crossing.
It is true perhaps, that had the engineer blown the whistle instead of applying the brakes (for he could not do both), he might have attracted the attention of the driver. But the fact of the matter is that he was obliged to think and act quickly, and in the emergency did that which then appeared to him as the best thing to do. An error of judgment (if error it was) was no fault on his part under the circumstances.
The trial judge found no fault in the defendants, nor do we.
Decree.
The judgment appealed from is therefore affirmed.
Lead Opinion
On Motion to Dismiss.
Three separate suits, filed by three different plaintiffs are included in the record of this case. As these suits grew out of the same railway accident, and involved the same inquiry into the circumstances of the accident! they were consolidated for trial in the lower court. Judgment went against the plaintiffs, and an appeal was moved for and granted in each case. As the cases had been prosecuted in forma pauperis, and the appeals had been granted in the same form, it was not thought necessary to give bonds of appeal, and none were given. Defendant moves to dismiss the appeals, for the reason that in one of the cases, that of Murphy, the affidavit required by law for the prosecution of a suit in forma pauperis was not made, and that therefore the trial court was without authority to allow the case to be tried, or appealed, in ■ that form, so that the appeal stands without a bond and must in consequence be dismissed, and that the appeals in the two other cases must also be dismissed, because the cases were tried with this Murphy Case and the costs of the trial were incurred in the three cases conjointly.
The motion to dismiss is denied.