15 La. App. 196 | La. Ct. App. | 1930
On June 16, 1928, a collision took place in the daytime at a public crossing in a rural section of Morehouse parish between one of defendant’s passenger trains and an automobile in which plaintiff was riding. He was injured and prosecutes this suit to recover damages.
He alleges that he was a passenger in the automobile which at the time was owned and driven by one B. J. Greenberry and that neither he nor the driver of the car was guilty of any fault or negligence, but that the accident and resulting injury were due solely to the fault and negligence of the defendant company, the specific acts of negligence charged being: (1) That the crossing where the collision occurred was dangerous and negligently constructed in that approach to the same is up a short incline; (2) that the Louisiana stop sign at the crossing is placed in such manner as to obstruct the view of a train ap
The defendant in answer admitted that its .train collided with the car in' which plaintiff was riding and -admitted that he was injured to some extent but denied generally the other allegations, and affirmatively alleged that plaintiff, while not the driver of the car, was guilty of gross independent negligence and in the alternative pleaded contributory negligence in bar of his recovery.
The trial judge rejected plaintiff’s demands, ordered his suit dismissed, and he prosecutes this appeal.
This is a tort action founded upon negligence and if the defendant company was guilty of no negligence there can be no recovery and the burden was upon plaintiff to prove negligence on the part of defendant as a necessary element of his cause of action. This point is conceded by counsel for appellant.
The only charge of negligence against the railroad company urged by counsel for appellant in this court is that the train approached the crossing without the sound of bell or whistle. All others have been abandoned.
Act No. 12 of 1924, page 16, provides that every railroad company shall cause each locomotive engine used to be equipped with a bell and a steam whistle “and shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or municipal street, and the bell shall be kept ringing or the whistle shall be kept blowing continuously until said crossing is passed.” Section 1.
It goes without saying that neglect to comply with this mandatory duty on the part of the railroad company is negligence per se. But in this connection we take occasion to say that in order to comply with the requirements of the above cited act it is not necessary that the bell be rung and the whistle blown at a distance-of 300 yards from the place where the railroad crosses the highway, nor is it necessary that the bell be kept ringing and that the whistle be kept blowing continuously until the crossing is passed. The act does not so provide. All that is required by the act is that either one or the other warning signal shall be given at a distance of 300 yards from the crossing and that either the bell shall be kept ringipg or the whistle kept blowing continuously until the crossing is passed. Either warning signal suffices. Both are not necessary. This must be kept in mind in considering the testimony in this case touching the only charge of negligence now urged.
In support of his allegations that defendant’s train approached the crossing without the sound of bell or whistle, plaintiff testified that the driver of the car in which he was riding stopped it before going upon the track and that he, plaintiff, looked both ways, up and down the track, that he listened and that he neither saw nor heard the train. We readily accept as true his statement lhat he did not see or hear the train, .because if he did, it is inconceivable that he would have permitted the driver to go upon tne track immediately in front of the oncoming train as he
Now the fact that plaintiff was mistaken or not candid when he said he looked leads readily and strongly to the conclusion that he was also mistaken when he said he listened. We think he did neither, and, therefore, attach no importance to his testimony, that the train approached without warning signals.
Plaintiff called three other witnesses in support of this allegation of negligence, James Harkness and Eugene Gray, both young white men, and Cora Hawkins, a colored woman. Harkness and Gray were both standing on the front porch of the latter’s residence which is between a half and three-quarters of a mile from the crossing where the collision took place. Harkness says the beil was not rung and that the whistle was not blown. Gray does not say that there was no bell or whistle but says he heard none. The woman, Cora Hawkins, was in a house a quarter of a mile away and says she heard the noise of the train from the time it left Collins-ton, which is two miles away, and that the whistle was not blown and the bell was not rung until the train hit dhe car.
As against the above there is the testimony of the train crew, James McCarthy, the engineer; J. M. McDonald, the fireman, and T. A. Brown, the conductor. The engineer and the fireman both say that the automatic bell ringer was turned on as the train left Collinston two miles south of the crossing and that the bell rang continuously until after the collision. The engineer in explaining why he left the bell ringing over the entire distance said that there was a private crossing on the outskirts of Collinston and that cattle grazed on the right-of-way in that vicinity. The whistle post is one-quarter of a mile from the crossing and the engineer, fireman and conductor each say that the crossing whistle was blown at or near the post.
To corroborate the testimony of the train crew defendant called four colored persons, Fred Key and his wife, Mattie, Liza Reece and George Reece. Fred Key testified that he lived about 250 yards from the crossing and was in his back yard cutting wood when the collision took place; that he heard the bell and whistle but did not see how far the train was from the crossing at the time. His wife, Mattie, was in the house sitting down with her baby in her lap when she says she heard the whistle blow and at once got up, carried the baby to the door to show it the train and that about the time she got to the door the train hit the car. Liza Reece lives about 200 yards from the crossing, and heard the whistle which caused her to look in that direction. She does not fix definitely the location of the train when she heard it whistle but says that
To sum up the testimony, we disregard that of the plaintiff himself for reasons already stated; Harkness says the bell was not rung nor was the whistle blown until after the collision, but his testimony loses some of its effect when it is considered that he was from one-half to three-quarters of a mile from the crossing and there was apparently nothing to attract his attention until he saw the collision; Gray, who was with Harkness, does not say the signals were not given but says he did not hear them; Cora Hawkins says the signals were not given until after the collision. For the defendant the three members of the train crew are positive that both signals were given at the proper time and place and that the bell was ringing continuously. The testimony of the four colored witnesses tends to show that the proper signals were given before reaching the crossing, although they did not definitely fix the position of the train when they were given.
In considering the testimony of the witnesses called by plaintiff and the colored witnesses called by defendant we must take into consideration the fact that none of them were expecting the arrival of the train and had no reason to notice the signals. The signals could easily have been given and not noticed by them. That is especially true of Harkness and Gray. According to their testimony they were between one-half and three-quarters of a mile from the crossing. According to members of the train crew the whistle was first blown at the whistling post one-quarter of a mile south of the crossing. Harkness and Gray being at least one-half a mile from the crossing and the whistling post being one-quarter of a mile further south, they were at least three-quarters of a mile from the whistling post so that if the whistle was blown at the whistling post it is not likely that these witnesses would have noticed it at that distance m view of the fact that there was no ¡particular reason why they should have noticed it. Harkness says he saw the train strike the automobile and that the bell did not begin ringing until after the collision. It would seem rather strange that the engineer should set the bell to ringing after the collision. The fact is, we think, that the bell was ringing all the while and that Harkness did not notice it until he saw the collision. According to the colored witnesses the train was making a great deal of noise, one of them stating that she heard it about the time it left Collinston, which is two miles away, so that it is not improbable that they did not notice the bell, the sound of which was confused with and probably drowned by the noise of the train.
Now, unless we disregard altogether the testimony of the members of the train crew and we see no reason for doing so, we must hold that the proper crossing signals were given. It frequently happens that the engineer and the fireman are the only persons in a position to know definitely whether the signals are given. They, of all people, should know, for it is their business to give them. The following quoted from the opinion, in the case of Bihm v. N. O. & Mexican R. R. Co., 6 La. App. 655, is pertinent here:
“It was the duty of the engineer and fireman to blow the whistle for each crossing and ring the bell before reaching same; such things become matter of habit with them. People not engaged in the operation of trains but living near crossings over which fast trains daily pass, become so accustomed to the whistling, and the ringing of the bell, that ordinarily, unless purposely listening, they pay no attention to such things and do not consciously hear them.”
See Simpkins v. L. R. & N. Co., 5 La. App. 438, Guillot v. L. R. & N. Co., 3 La. App. 541.
The trial judge found that, while not driving the car, plaintiff could not recover because of his own gross negligence which was the main contributing cause of his injury. We shall not comment upon that point further than to say we think his conclusions well founded, as we prefer to rest the case upon our finding that the defendant company was guilty of no negligence.
The judgment is affirmed with all costs.