Alexandria Refining Co. v. Missouri Pacific Railroad

1 La. App. 470, 1925 La. App. LEXIS 37

• Court: Louisiana Court of Appeal
• Decided: January 19, 1925
• Docket: No. 2083
• Status: Published

Opinions

STATEMENT OF FACTS

In this case plaintiff’s driver of one of its tanks stopped on the railroad track at a public crossing and got down to adjust some oil drums that were about to fall; while on the north side with his vision cut off from the south, the engine and car of defendant came up on the south side of the truck to within six or seven feet and was stopped.

Steve Irwin, defendant engineer, testified (page 57):

“A. Yes, sir, we stopped six or seven feet from the crossing or possibly right on the crossing and we were not far enough to get over this switch from one to two and when Burrell came back there, he gave me a signal to go ahead just a few feet, and that is when I shoved the truck. We didn’t hit the truck, we shoved it.”

This statement of the engineer, that the car was stopped within a few feet .of the truck, and afterwards, on signal of the brakeman backed onto the truck, is corroborated by W. M. Johnson, a witness for defendant (page 67), when he said:

“A. Well, the engine started but the engine stopped and I. heard him reverse the engine and I knew naturally that they were going back on the opposite track, so I turned around in my seat to look back this way and I heard him throw the engine over to go ahead again, and I looked ahead, the engine was already in motion, and when he applied steam the engine moved ahead and when I looked ahead I saw the radiator. In fact, I couldn’t tell what it was and looked out again and hollered to the engineer to stop and he stopped instantly.”

Also by Will Burrows, defendant’s brakeman, who testified on page 75 as follows:

“A. They hadn’t gone over the switch when they first stopped and I had to signal them ahead far enough for me to throw the switch.”

After the ' engine and car was stopped, and while the truck was standing still, with the driver on the opposite side from the engine, not knowing of its presence. The brakeman signaled the engineer to back the ear over a public crossing on Which the truck was standing still and the engineer backed the cars over the truck causing the damage sued for.

OPINION

Under the evidence it is clear that the defendant railroad company backed its engine and car over a public crossing on which there was a truck standing still, without first seeing that the crossing was clear. The brakeman, Will Burrows, skid, Trs., page 72: “I could see that the crossing was clear,” but he was mistaken as to this for the crossing was not clear. If it had been the accident could not have happened.

The undisputed evidence in this case shows that the conditions existing at the public crossing, where the accident occurred, just prior to the accident, were as follows:

The plaintiff’s truck was standing still on the railroad track over the public crossing, with the parties in charge of the truck on the opposite side of the truck from the engine' and car, working to make secure the oil drums on the truck, unaware of the approach of defendant’s engine and car.

The flagman of the defendant company, without making sure that the crossing was clear, signaled the engineer; he started up his engine and backed same over plaintiff’s truck.

Under the circumstances the defendant railroad company had the last clear chance to avoid the accident. Humanity and the safety of the general public demands, and the law requires, that railroad companies must make. sure that a public crossing is clear before they back their trains across same.

The judgment of the lower court is reversed.

ON QUESTION OF DAMAGES

Plaintiff presented a bill to defendant for $855.17 for parts furnished and for work done in repairing its truck. Itemized bill showing the aggregate amount of $855.17 was introduced in evidence under filings for plaintiff from 1 to 11 inclusive and established a damage to that amount.

Plaintiff further asked for $330.00 damage for the loss of the use of said truck during the time it was being repaired, but there is no evidence to show any actual damage sustained by the plaintiff from the loss of the use of the truck, nor is there any evidence showing that the truck could not have been repaired in one day or that thirty-three days were required to repair said truck. The item claimed for loss of the use of the truck must be dismissed as of non-suit.

For the above reasons the judgment appealed from is avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, the Alexandria Refining-Co., Inc., do have and recover of the defendant, the Missouri Pacific Railroad Company, judgment for the sum of eight hundred and fifty-five and' 17-100 dollars with five per cent per annum interest thereon from this date and for all costs in both courts.