80 So. 613 | La. | 1918
Mrs. Emma Howell, and her divorced husband, George S. Long, sue defendant jointly for $46,000, for injury, suffering, and death of their minor daughter, Mary Long, aged eight years, who was run over by defendant’s train, through the alleged fault and negligence of defendant’s employes.
Defendant answered, admitting that Mary Long was struck by defendant’s engine, and that she received a flesh wound on one foot, but it denied that it was in any manner guilty of neglect or fault, and it alleged that the accident was unavoidable. It denied that death resulted from the accident.
In an amended answer, defendant pleaded a compromise between Mrs. Howell and it, by which it paid her $250 in full settlement of her interest in the claim. This settlement was proved on the trial. Nevertheless, the jury returned a verdict in favor of Mrs. Howell and George S. Long, for $1,000, and judgment was rendered accordingly, with interest. Long did not compromise his claim.
Defendant has appealed, and plaintiffs ask that the judgment be amended by increasing it to the amount claimed) including that portion for punitory damages.
Mary Swanner, one of the four girls, and she was the only one called by plaintiffs as a witness, testified that they, the girls, saw the train coming and heard the locomotive blow; that they got off the track in safety, excepting Mary Long, whose foot became caught in a frog. The little witness gave a graphic description of the scene, and told of courage and great presence of mind on the part of all of them. In answer to questions, she said:
“Q. What caused her (Mary) to get hurt? A. We were going to school, and we saw the train coming, and the train Mowed, and we started to get off, and her foot got caught in the frog. Q. What did the other little girls present do? A: We tried to pull her foot out. Q. What did the other little girls do ? A. They*429 tried to stop the train. Q. What did they do to get it to stop? A. Got out in the middle of the track and throwed up their hands and hollered. Q. How many of the buttons did you succeed in getting unbuttoned? A. Four. Q. You were trying to unbutton them? A. I was trying to unbutton the shoe. * * * I unbuttoned four of them. Q. After .you could not get her foot out of the shoe, nor the shoe out of the frog of the railroad, what did you do to keep the train from running over heT? A. I caught her and held her out to the side of the track. Q. What happened then when the -train came by? A. It pulled Mary’s foot out (of the shoe) and she fell down beside the track. Q. The train had gotten pretty close, and when she went to step off the track her foot got caught in between the main line rail and the guard rail? A. Yes, sir. Q. Now, as soon as that was done, and you could not get it out, you stooped down and began to unbutton the shoe? A. At first I tried to get her foot out, and I couldn’t', and I tried to unbutton her shoe. Q. You unbuttoned four buttons of the shoe? A. Yes, sir.”
■ The testimony of this little witness sustains that for the defendant. The engineer, fireman, and baggageman testify that the whistle had been blown, and that the train was slowly rolling into the station at Simmsport when the four little girls were seen on the track. They had been properly warned, they had seen and heard the train, and it was reasonable on the part of the train crew to suppose that the girls would leave the tráck in time to' avoid any danger from the train. The engineer saw them stooping, and he thought they were putting pins on the track, and he did not realize the danger until it was too late for him to avoid it. At that time the train was 120 to' 130 feet from the girls. It was going from 15 to 25 miles an hour. He put on the. emergency brake, sanded the track,. and made a quick stop, but not in time to avoid the accident, which resulted in knocking Mary’s foot out of her shoe and lacerating the foot slightly.
■ Defendant has shown by a preponderance of evidence and with’ legal certainty that its employés were free from fault and negligence, and plaintiff’s suit should have been dismissed.
Mary’s death did not result from the accident which befell her. It was quite conclusively shown that she died from strychnine poison. But it is not necessary to further touch upon that phase of the case, as defendant is not responsible for the accident which befell the child.
■It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and that there be judgment in favor of defendant, dismissing plaintiffs’ suit at their cost in both courts.
Ante, p. 167.
