167 So. 165 | La. Ct. App. | 1936
In overruling the exception of no cause of action and remanding the case for trial in the opinion handed down January 28, 1936, we held that the petition did not affirmatively show on its face that the proximate cause of the accident was the failure of plaintiff to come to a complete stop before crossing the railroad track. Our conclusion was that the question of whether or not the failure of plaintiff to come to a complete stop before crossing the track proximately caused the accident is a question for the court or jury to determine on the trial of the case, and that the statutory law regulating traffic on the highways did not change the rule to the effect that the failure to come to a complete stop before crossing a railroad track, in order to constitute contributory negligence, must appear to have been the sole or proximate cause of the accident. 165 So. 527.
On the application for a rehearing it is strenuously urged that Act No.
In adhering to our former conclusion, we desire to add that, in our opinion, one of the statutes relied on by counsel, Act No.
That is precisely what we held in our opinion handed down in this case, viz., that the question of whether or not the failure to stop was the sole or proximate cause of the accident is a question for the court or jury to determine. Act No.
This court has heretofore made a similar application of the law on this point in the case of Pittman v. Yazoo M. V. R. Co., 7 La.App. 209, where we there said in passing on a similar situation: "The failure to stop, look and listen before driving on the crossing, is a matter of defense, which defendant must plead in order to urge it, and it may or may not be good. It depends on the facts and circumstances of the case, Maher v. Louisiana Railway Navigation Co.,
The application for a rehearing is refused.