48 La. Ann. 933 | La. | 1896
The opinion of the court was delivered by
On the 16th of March, 1893, the wife of Joseph Vincent, the plaintiff, was returning in a buggy to her home near
Plaintiff’s pleadings refer to the train as being a special one, the speed at which it was running as being dangerous, particularly in view of the darkness of the day; to the speed not having been checked as the cars approached the crossing and to obstructions to the view along the line of road from Veazey’s store to the crossing. The evidence shows that along the bar fences, between which the public road ran, were a few scattering trees of small size and also some weeds between eighteen inches and two feet high, but
Plaintiff, in respect to the obstruction alleged, overlooks the fact that if such obstructions really marked the view that they themselves were as much concealed from the view of the defendant’s employees as the latter were from the persons in the buggy, and that the very fact of the existence of the same imposed additional caution
We do not understand plaintiff’s allegations as charging that the employees of the railroad saw the approaching buggy, or that by the exercise of such reasonable care as was consistent with their duties they might have seen them any sooner than they did. Their allegations as to the difficulty under which they themselves labored in seeing surrounding objects by reason of the misty cloudy weather and the intervening trees and weeds negative the idea of such a claim hiving been advanced on their part against the defendant as a cause of action. There is no attempt to show that defendant’s employees failed in their duty from the moment the danger was seen up to the time of the accident, nor is there any charge that the defendant was in fault in respect to any of the appliances connected with the train. Their real contentions are that the whistle was not sounded, the bell was not rung, the train was moving at a dangerously fast rate, and its speed was hot slackened as the cars approached the crossing. The' signals, as we have said, were properly given, but they were not heard — possibly because the wind was high; possibly because the ladies in the buggy had their hats on, covered with their veils; possibly because engaged in conversation and apprehending no danger they gave no heed to what was passing around them. We have no reason to suppose that the accident would have been avoided had the train been moving at a slower rate than it was — it is not so charged. It is referred to as having been dangerously fast. Plaintiff charges that the employees of the defendant had no right to move the train at as fast a rate as it was going on a misty and windy day, and knew, or must have known, of the danger of a collision. We do not find that the train was moving at a faster rate than that at which passenger trains frequently move between regular stations. Olivier was only a flag station, and this particular train had no reason to stop there, or to expect that it would be stopped at that point. The evidence does not show such a condition of things as the allegations charge — the day was dark and somewhat misty and a rain was threatening, but the hour was just after noonday, and all objects were visible. The evidence discloses the existence of no fact outside of the alleged fact itself that the wind was high and the day was not bright, tending to show that it was the engineer’s duty to slacken the speed at which the train was moving.
Appellee presses upon us that the fireman was firing up, as he reached the whistling post, and that he should not have been doing so, but should have desisted until the crossing was passed. That if he had been looking out on the left of the cab he would have seen the buggy approaching .the crossing sooner than he did. The fact that the fireman was engaged in putting in coal as the train approached the whistling post was a fact shown by his own testimony and was not looked to or assigned as furnishing any ground of complaint in the pleadings as we have said. There was no attempt to show that in firing up at the time he did, he was not at that time doing exactly what was necessary to be done in the line of his duty. If he had been looking out at that time there would have been nothing to indicate, so far as we see from the evidence, that the parties inside the buggy would attempt to cross over the track directly in front of a train rapidly approaching them and directly visible to them had they looked.
We are of the opinion that the deceased was guilty of such contributory negligence in this case as to cut off the claim for damages..
For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury and the judgment appealed from, based therein, be and the same are hereby annulled, avoided! and reversed; and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected with costs, in both courts.