35 La. Ann. 694 | La. | 1883
Lead Opinion
The opinion of the Court was delivered by
This is a suit for the value of cattle alleged to have been killed by the defendant’s train, through the fault, negligence and carelessness of its employees.
Plaintiff charges that:
On the 19th of September, 1882, eight of her mules were thus killed and one badly injured.
On the 26th of the same month, two mules were killed.
On the 11th of October same year, one mule was killed.
And on November 11th same year, one mule and a jack, a valuable animal, estimated at one thousand dollars, were killed.
She also claimed attorney’s fees, valued at $250, incurred in the prosecution of this suit.
The defense is a general denial.
The judgment appealed from by both parties, allowed to plaintiff
Before examining the case on its merits, we must direct our attention to a bill of exception taken by the defendant to the ruling of the court, in allowing plaintiff to file a supplemental'petition, on the second day of the trial, charging that defendant had no right of way over her property, on which the mules were killed or otherwise injured.
Under such an allegation, the defendant could be shown to be a trespasser on plaintiff’s property, and as such held to greater responsibilty, for the destruction of property, than in a suit against a railroad company under ordinary circumstances.
Under the allegations of plaintiff’s original petition, the responsibility of the defendant Company, for injury done to property by the running of its trains, was to be tested under the general rules applicable in such cases to all railroad companies running their trains under legal rights; but under the allegations of the supplemental petition, the liability of the defendant to damages would be governed by the rules applicable to trespassers. And hence, the supplemental petition must be construed as presenting a different issue, and as altering the substance of the demand embodied in the original petition. C. P. Art. 419.
We therefore hold, that the supplemental petition should have been excluded, and that all the testimony offered in support of its allegation should have been rejected.
We shall adopt as our guide, in applying the evidence in the record to the test of defendant’s responsibility, the rule of law which imposes on the plaintiff in such suits the burden of proving negligence and carelessness on the part of defendant or of its employees.
In the recent case of Stevenson vs. Railway, this same defendant, we had occasion to review our jurisprudence and that of our sister States on this question, and to have firmly established that rule for the guidance of courts in this State.
The evidence shows, as our brother of the District Court correctly held, that plaintiff has utterly failed to prove such negligence as to the accidents of September 26th, October 11th and of November 11th, 1882.
It appears that at that time two trains of the defendant went through plaintiff’s land every nightj one a freight train at about 9:40, and the other a passenger train at about 1:37, and that none of plaintiff’s witnesses saw the accident on either of the occasions.
In fact, plaintiff has failed to show conclusively by which of the two trains her cattle were injured. Hence,, we are not informed of any
The record shows the following facts to our entire satisfaction :
That plaintiff’s mules were injured by the freight train, which was about on time that night; that the mules were in an enclosed field, used as a pasture since the first of that month, to the knowledge of defendant’s employees; that the track lays in a flat country with level grade without interruption to the sight or vision, and that the night of September 19tb, up to ten o’clock, was a bright night.
The crippled and injured mules were found next morning laying on the side of the track, a distance of more than eight hundred feet intervening between the spot where lay the first mule to the spot where the last one was found.
It also appeared that the mules ran on the track in advance of the train, which, under orders of the Company, ran at the rate of only ten or twelve miles an hour. These and several other circumstances show, beyond a doubt, that the locomotive struck the mules one by one, and that no efforts were made to stop the train, and no chance allowed to the mules to jump off the track.
Under such circumstances it is safe to conclude, that the failure of the engineer to stop his train, at least after striking, the first mule, was gross carelessness and culpable negligence, which were the immediate causes of the destruction of so much property, and which were calculated to endanger the lives of other employees on the train.
This conclusion is strongly fortified by the failure of the defendant to introduce the testimony of any of its employees on that train. Thompson on Negligence, Vol. 1, p. 514.
We must, therefore, hold the defendant responsible for the mules killed and injured on that night, and we shall adopt the District Judge’s estimate of their value.
Plaintiff’s demand for attorney’s fees in this very suit cannot be entertained.
In the case of Campbell vs. Short, (8369), recently .decided, we held, that a party is not entitled to recover expenses incurred for fees of. counsel in a' suit for past damages.
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion.
I think the plaintiff should have judgment for the value of all the stock killed,, and refer to my dissenting opinion in Stevenson vs. the same defendant, for my reasons therefor.
