86 So. 825 | La. | 1921
This is an action in damages for personal injuries received by plaintiff as the result of a collision between the buggy in which he was traveling and a motorear of defendant, at the crossing of Magnolia and Euphrosine streets in the city of New Orleans.
The issues are the same; in fact, the case was submitted (as to the circumstances of the collision) entirely upon the record in the case of Frederick W. Lincks against the same defendant, No. 21,349 on the docket of this court, and reported in 143 La. 445, 78 South. 730. Lincks was riding in the buggy with the present plaintiff and was injured in the same collision.
The lower court gave judgment for plaintiff in the sum of $3,000, defendant has appealed, and plaintiff has answered praying that the award be increased to $10,000, the sum originally demanded.
Opinion.
As said' in the Lincks Case the Question of liability depends largely upon whether or not the flagman of the defendant company maintained at this crossing was at his post of duty and gave warning to the occupants of the buggy of the approach of the motorcar in time to have prevented the accident, had the warning been heeded.
We take it that, inasmuch as this court had found that the flagman, as a matter of fact, had not timely performed his duty in the Lincks Case, and that this was the proximate cause of the collision, the lower court, in deciding this case upon the identical record, considered its determination of that Question largely a matter of form. Hence we would hardly be justified in attaching as much importance to his decision on the facts as we might to that of the district judge in the other case.
Defendant’s counsel argued that it would require the assumption of conduct equally as extraordinary on the part of the flagman, put there to protect life and property, to say that he deliberately allowed the buggy to go upon the track when he saw the ear approaching, as it would have been for the .plaintiff to have persisted in going upon the crossing in the face of positive warning. However, this leaves out of consideration the frailties of human nature, as a result of which experience has taught, as illustrated almost daily by disasters in commerce and industry that where man is called upon to constantly perform a given task, it eventually comes to the point where the task is performed subconsciously. This may go on for a great length of time, and then suddenly, and without apparent cause or possible explanation, the subconscious sense fails to function and disaster is the result.
We think it established by almost all the evidence that just at the moment of collision, or an instant before, the flagman made frantic efforts to warn the buggy; but we believe this was the first time, and that it came too late. ' ■
In thus concluding, we, for the reasons above suggested, do not find it necessary to attribute to the flagman reprehensible conduct of the nature defendant’s counsel seems to think our decision in the Lincks Case implies. In our opinion, it would be more reasonable to assume that he did not become aware of the buggy’s danger until too late than to believe that the occupants of the vehicle persisted in going over a railroad track as to which their view was obstructed, in the face of positive and timely warning.
All in all, we think the amount allowed by the lower court fair and reasonable.
For the reasons assigned, the judgment of the lower court is affirmed, with costs.