58 So. 696 | La. | 1912
Statement of the Case.
Plaintiff herein, Mrs. A. M. Roby, wife of J. A. G. Roby, -with her grown stepsons, Bryon and Greer, and her two little boys, Virgil and another, issue of her marriage, were on their way to the Fair Grounds, near Shreveport, in a hired automobile, when one of defendant’s trains ran into the automobile, with the result that Mrs. Roby and Greer were badly injured and Virgil was killed. Three suits were brought for the recovery of damages, and, for the purposes of trial, they were consolidated, and, having been argued together, will be considered together for the purposes of the opinion, though a decree will be entered in each.
The family party, thus mentioned live in the country, and were visiting Shreveport probably for the purpose of attending the Fair, which was being held to the southward of the city. In order to accomplish that purpose, one of the grown sons hired a public automobile from the stand in front of the Phoenix Hotel, and requested IVm. Lowe, the chauffeur and proprietor, to take them to the Fair Grounds, giving him no other instructions than that he should proceed carefully. Lowe drove the machine, and he and Bryon Roby occupied the front seat, whilst the others occupied the back seat. They proceeded, without accident, out Texas street and Texas avenue (the one being a continuation of the other, as we understand), until they reached a point at Cedar street, where Texas avenue is crossed by nine tracks of the defendant company, and the accident occurred on the first, or most northerly, track, as follows:
Persons traveling southward on Texas avenue do not obtain a view of the railroad crossing until they get rather near it, as up to a point apparently say 100 yards, more or less, from the crossing, the avenue appears to run in a northeasterly southwesterly direction, and the railroad tracks also run slightly north of east and south of west. At the point mentioned (the distance of which from the crossing, we approximate, from the photographs in evidence) the avenue makes a turn to the soiithward, when the crossing be- | comes visible, the tracks crossing the avenue
“Q. Where was the flagman when you saw him? A. When I first saw him, he was standing by a wagon. Q. On which side of the crossing? A. Right in the center of the tracks — the street crossing, about halfway between the tracks, probably a little this way [meaning nearer town], probably one-third on the way across the crossing. The wagon was standing in the tracks, or at the edge of the tracks. * * * ”
On cross-examination:
“Q. You say that the flagman was standing by the wagon? A. Yes, sir. Q. Now, where was the wagon? A. It was right at the edge of the tracks, about a third across. * * * Q. Headed this way [towards town]? A. Yes, sir. Q. What was the flagman doing — talking to the driver? A. Yes, sir. Q. He was talking to the driver? A. Yes, sir; I think so. He was standing there by him, looking at the driver. Q. You couldn’t tell that he was talk*885 ing? A. No, sir. Q. His attitude, though, was as if he was in conversation? A. Yes, sir; it seems that he was talking to him, judging from his attitude that he was standing in. * * * •Q. Now, that put the wagon between the flagman and the approaching train? A. Yes, sir; the wagon was behind the flagman and the • approaching train. Q. Now, at that time, ■about how far away was that approaching train? A. When I first noticed it, when the flagman stepped out and flagged the automo'bile, I then looked to see what the danger was, naturally, and I saw the train above there within about 40 feet of the crossing, of the tavenue crossing. * * * Q. Then at the time the flagman was talking to this man, the train must have been in the neighborhood of 40 feet, or 50 feet, of the crossing? A. Yes, sir. Q. When the flagman turned around and saw the :automobile, he rushed ahead and flagged him? A. Yes, sir. Q. The red flag in one hand and 'the white flag in the other? A. Yes, sir. Q. The flagman was very much excited? A. Yes, ■sir; a great deal. Q. He ran up in front of the automobile frantically flagging? A. Yes, •sir; within six feet of him. Q. When you first ■saw the automobile, it was about 40 feet from "the point where it stopped? A. Yes, sir. Q. At that time, or when you looked, or a little while afterwards, the train, you say, was about ■40 feet from the crossing? A. Thirty or 40 ■feet. Q. And to have added the distance from the crossing to the place where the automobile •stopped would have been 15 or 20 feet more; in other words, that street is 50 feet wide? A. Yes, sir. * * * Q. Then, if the flagman had left the automobile alone and not flagged him down, he could have passed over the track in rsafety? A. Yes, sir. Q. Without any ques■•tion? A. Yes, sir.”
Mr. J. E. Peyton, a witness called by plaintiff, testified that shortly after the accident the flagman in his presence pointed out to a ■number of persons the place where he was ■.standing when he first saw the automobile. 'The witness said:
“Mr. Horn [the flagman] said that he was standing right between the first, as I remember, between the second and third tracks. It was on a line between this house and the opposite •side of the street [witness marks with pencil on photograph ‘D’ place where he said he was •standing], right at the sidewalk. Q. Inside the ■curb? A. There was not any curb there. Q. At the point that you have marked ‘X’ on this Exhibit D? A. Yes, sir. Q. Where the sidewalk would be, if. extended across the street? A. Yes, sir.”
There were 46 witnesses examined in the -case, and there is more or less of conflict in their testimony; but, taking it all together, we think it clearly established that the flagman was engaged in conversation with the driver of the wagon at the point designated by the witness whose testimony has just been quoted, which point, as we have stated, is off to one side of the crossing, and not less than 20 feet to the southward of the northern side of the track on which the accident occurred, being the side from which the automobile was approaching; that, when the train and the automobile got within dangerous proximity of the point of collision, the flagman awoke to a sudden realization of the situation, and started in that direction; that there was no negligence on the part of those in the automobile in failing to see him, either at that instant or at any time, and that, as soon as they got the notice which he thus gave, the automobile was stopped; that unfortunately for all concerned it was stopped upon the first track, with the flagman waving his hands — a white flag in one and a red flag in the other — only a few feet in front of it; and that, if he had not thus stopped, the automobile, there would have been no accident. The last proposition is established beyond peradventure, or even denial, and to our minds strongly sustains the impression that the flagman completely lost his head when he realized that as a consequence of his absence from the front line and his inattention a dire calamity was likely to occur. It appears that, until the flagman came rushing in manifest excitement towards them, the occupants of the automobile were unaware of the proximity of the train, and that even then, and after the automobile had been stopped, they thought that the train was probably on another of the many tracks, and that they were safe. Looking about them, however, they instantly discovered that the train was almost on them, and the chauffeur endeavored to back the auto,mobile off the track, but, he says, his “gear would not go in mesh.” He therefore warn
Greer Roby is shown to be a farmer, about 31 years of age (in April, 1911), and married. His left leg was crushed at the knee, and was amputated above the knee,, but his condition was such that it was feared that he might not live through the operation, and it was somewhat hurried, and there-was not sufficient muscular tissue left to-make a proper flap. A second amputation, therefore, became necessary a few months later, and in the meanwhile he suffered a great deal. Beyond that he lost portions of' all the fingers of the left hand save the little finger, the thumb also being saved. His-expenses consequent upon his injuries were-$300.
Mrs. Roby, as we have stated, had the-humerus of her right arm broken into the-joint at the shoulder, and at the time that she testified was unable to raise her arm or forearm to her head, or make use of it for the purpose of dressing herself, or for-performing her accustomed household duties. The surgeons who testified in the case express the opinion that the injury is likely to be permanent, though, as we infer, her-condition will be better than when she testified. The fractured collar bone has mended, and the scalp wound, the bruises, and the burns have healed. The little boy, Virgil, was killed so suddenly as probably to have been conscious of no pain. He was-11 or 12 years old. There was a verdict in favor of Greer Roby for $10,000, in favor of Mrs. Roby for $1,000, and in favor of Mr. and Mrs. Roby, on account of the little-
Opinion.
The pleadings in the three cases are practically the same, and the court is referred to the transcript bearing the title and number in the caption for all purposes. Defendant filed an exception of vagueness, and insists, in this court, that the only negligence charged is that its train was running at an unusual, danger-, ous, and prohibited speed, and that the crossing required two flagmen. The petition, however, contains something more than is thus attributed to it. It alleges that plaintiff was .a passenger, paying regular fare, in a public, licensed automobile; that, without negligence on her part, the automobile was struck by the train; that the train was running at a dangerous and prohibited speed; that the ■crossing was particularly dangerous (for reasons stated), and that the one flagman was insufficient; “that the train was backing .along the track and proper precautions were not taken to safeguard human life;” “that no signal or warning was given by defendant’s employés in such manner that petitioner could reasonably apprehend danger in time to save herself from personal injury.” And there are other general allegations of negli.gence and gross carelessness on the part of defendant; but those which have been cited appear to us to be sufficient for the purposes of the case. They include the charges that an engine and 11 freight cars were being rolled to, and over, a dangerous crossing, unprovided with the usual and necessary appliances for stopping them; that, instead of being pulled with the engine (which alone was. provided with a brake), in front, and the engineer (who alone had control of the one brake) in a position where he could see the •danger of a collision and make instant use at least of the appliances with which he was provided, the freight cars were being pushed with the engine and engineer nearly a block and a half in the rear, where he was incapable of seeing or measuring any danger in front, and, when information reached him, could only apply such stopping power as he could command to the engine, thereby leaving the freight ears to continue their forward movement until they exhausted the “slack”; that one flagman was insufficient to protect the public from the dangers of the crossing; and that neither the one flagman, whom the law required the defendant to keep there, day and night, in order that persons making use of the street might be properly warned of these dangers, nor any other employé of defendant, gave such warning in time to enable plaintiff to protect or save herself therefrom.
___ “That all locomotives and rolling stock * * _ * shall be preceded by a flagman, while crossing, and come to a full stop; before crossing, the following streets [naming certain streets]. That a flagman shall be stationed, day and night [at certain named crossing and places]; that a day and night flagman shall be stationed at the railroad crossing over, Texas avenue (plank road) at or near its junction with Oedar street.”
“There is no distinction, in principle, whether the passengers be on a public conveyance, like a railroad train or an omnibus, or be on a hack, hired from a public stand in the street for a drive. Those in a hack do not become responsible for the negligence of the driver, if they exercise no control over him, farther than to indicate the route they wish to travel or the place to which they want to go.” Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; Holzab v. New Orleans & C. R. Co. et al., 38 La. Ann. 185, 58 Am. Rep. 177; Perez v. New Orleans & R. Co., 47 La. Ann. 1391, 17 South. 869.
“The general principles of law applicable to livery stables and public hacks apply with equal force to the garage proprietor and the hack owner.” The Law Applied to Motor Vehicles, Babbett, § 615, p. 490, citing Smith v. O’Brien, 46 Misc. Rep. 325, 94 N. Y. Supp. 673; Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606, 611 (1908).
See, also, Dale v. Denver City Tramway Co., 173 Fed. 788, 97 C. C. A. 511, 19 Ann. Cas. 1223.
We are of opinion that the amount awarded Mrs. Roby is inadequate, since, in addition to the physical and mental suffering sustained by reason of her bruises and burns, her broken collar bone and severe scalp wound, the breaking of the head of the humerus in its socket will cause her great inconvenience for a long time, and perhaps for the balance of her life, and for the wife of a farmer, the mother of children, and a housekeeper that is a more serious matter than it would be for others differently situated, though no one would be likely to place himself in her position for any amount of money that a court would award.
It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from be amended by increasing the amount of the award to $3,000. It is further decreed that as thus amended said judgment be affirmed, and that defendant pay the costs of the appeal.