84 So. 483 | La. | 1920
Plaintiffs -appeal from a judgment rejecting their demand for damages for the death of their daughter, whoso death was alleged to haye been caused by the .fault and negligence of the employés of the defendant company. She was drowned in the Mississippi river, by the sinking of a small motorboat, in which she was riding, and which was swamped by defendant’s tugboat, towing the railroad company’s transfer barge, carrying a passenger train across the river.
Plaintiffs’ daughter, aged 17 years, was a member of a party of four in the motorboat. The other members were Miss Lorio, 19 years of age, and Messrs. Netzhamer and Rankin, near 21. Tl,rey had been on a pleasure trip up tbe river as far as Kenner, on that Sunday afternoon, and were returning to Southport, where they resided. When they reached a point about 350 feet above the stern of the transfer barge Mastodon, the gas engine in the motorboat suddenly stopped, and Netzhamer, who had been running tbe engine, was unable to start it. It was then 8:30 or 8:40 p. m., and the night was very dark. The motorboat was only 24 feet in length, 6 feet beam, 3 feet draft, and carried a 6 horse power gasoline engine. The current was carrying the gas boat toward the stern of the Mastodon. She measured 366 feet in length and 52 feet in width. Attached to the side of the Mastodon were two large steam tugs, the El Vivo near the stern, and the Restless near the bow. The Mastodon was fastened to the railroad incline, ready to receive a passenger train. In fact, the train was then being placed, in three sections, on the barge, an operation which required six or eight minutes. The tugs had steam up, but their engines were not operating. The barge and tugs were well lighted. Netzhamer and Rankin realized the danger of their situation; and, while the former was trying to start the gas engine, the latter went to the bow of the gas boat with an oar, and tried to paddle the boat ashore. I-Ie had succeeded in turning the bow of the boat toward the shore, but had made little or no headway when the train was aboard the barge, and, in response to a signal from the captain of the Mastodon, the propellers -of the El Vivo be
The three survivors of the party in the gas boat testified that they had a lantern on the boat and that one of the young men waved the lantern while they were all screaming to attract the-attention of some one on the Mastodon or El Vivo. There is a preponderance of evidence, however, that the lantern had gone out. That evidence consists mainly of the testimony of admissions made by each of the three survivors of the accident, at times when they were likely to remember and state the truth.
There was no negligence in the management of the Mastodon or El Vivo bn the night of the accident. As soon as the deck hand had let go the line at the stem of the Mastodop, he gave the usual signal to the pilot of the El Vivo who then gave a long blast of the whistle. The purpose of that signal was twofold, to notify the captain on the bridge of the Mastodon that the stern line was loose, and to notify any vessel nearby that the ferry was about to cross the river. The captain on the bridge of the Mastodon looked astern,
It would have been negligence on the part of the captain of the Mastodon or the pilot of the El Vivo to fail to see a light on the gas boat within 200 feet from the stern of the barge. We are sure they did not see a light on the gas boat; and we are convinced by the testimony in the case that there was no light on the gas boat at the time when the captain of the Mastodon and the pilot of the El Vivo should have seen the light if there was one on the gas boat.
There is some testimony to the effect that the two young men on the gas boat were intoxicated at the time their engine stopped. They and Miss Lorio deny that either young man was intoxicated. Whether they were or not is of little or no importance in deciding this case, because it does not appear that a sober mind, or the best of mental faculties, could have averted the accident.
Defendant’s counsel cite the decision in Dixon v. Vicksburg, Shreveport & Pacific Railway Co., 139 La. 336, 71 South. 529, as maintaining that contributory negligence on the part of the driver of a vehicle is attributable to an invited guest in the vehicle. In the last paragraph of the decision, however, it was said to be unnecessary for the court to consider the- case from the point of view of negligence on the part of the plaintiff as a passenger in the vehicle. And this court has since said, in Broussard v. Louisiana Western Railroad Co., 140 La. 521, 73 South. 607, that what was said in Dixon v. V. S. & P. R. Co., “practically to the effect that a person on the front seat of an automobile is under the same legal obligation as the chauffeur to be observant,” was mere obiter dictum, “and as to its being good law in any case, qusere.” The obiter dictum in the Dixon Case was, in effect, overruled again in Jacobs v. Jacobs, 141 La. 272, 74 South. 992, L. R. A. 1917F, 253, and again in Maritzky, v. Shreveport Railways Co., 140 La. 692, 81 South. 253. It is of no importance, therefore, whether the young men in charge of the motorboat were or were not guilty of negligence, in their failure to comply -with the Act of Congress approved June 9, 1910, requiring such boats to be equipped with life preservers,
The judgment appealed from is affirmed, at appellants’ cost.