46 La. Ann. 248 | La. | 1894
The opinion of the court was delivered by
The plaintiff sued the defendant company for $28,300 damages for the death of his son, who was killed on the track of said company by one of its trains on the 15th December, 1890. The ease was put at issue by a general denial. There was judgment for plaintiff for $20,000, and the defendant appealed.
In this case the facts are few, and the law well settled applicable to the same.
. The plaintiff’s son was a deaf mute and was walking on the railroad track, his back toward an approaching train, which was a special train, running at a high rate of speed. The engineer of the train gave the usual signal for the crossing, about one-half mile above Duke Station, near which the plaintiff’s son was killed.
When about a quarter of a mile from Duke Station another signal of four whistles was sounded. These signals could be heard two miles on a still day. The day was clear and bright. When the last crossing signal was sounded, the engineer saw a man valking on the track. This man was the deceased son of plaintiff. The engineer did not know of his infirmity. The man paid no attention to the signal,, and when within one hundred yards the engineer blew the danger signal rapidly, “very vicious and quick for anumber of times.” When within thirty or forty feet of the man, the engineer reversed the engine and applied the air brakes. But this last effort to avert the accident was too late and the deceased was run over.
The plaintiff’s contention from these facts is that the company was guilty of negligence in running a special train at a furious speed; that proper signalsjhad not been given before reaching Duke’s Station, and that he failed to give notice to the deceased son of plaintiff of the proximity of the train.
'The defendant company has the exclusive use and control of its tracks and road-bed, and it is within its discretion to run on said
' The deceased was a deaf mute. Greater care, caution and prudence were required from him than from one in full possession of all his senses. Knowing his infirmity, his use of the road as a highway, upon which trains at any time must pass, was in itself negligence.
The defendant company exercised all due diligence in running the train which killed the deceased. The usual and customary signals were given at the crossing, within the hearing of one not afflicted with deafness, and on the approach of the train to deceased he was given ample time, by signals, to get off the track. It was his unfortunate infirmity which caused the accident, and he was to blame for placing himself in a situation where hearing was one of the essentials of his safety.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided' and reversed, and it is now ordered that there be judgment for the defendant and plaintiff’s sui dismissed, with all costs.