Lewis v. Texas & P. Ry. Co.

83 So. 535, 146 La. 227, 1919 La. LEXIS 1505

• Court: Supreme Court of Louisiana
• Decided: June 30, 1919
• Docket: No. 23293
• Status: Published

Opinions

PBOYOSTX, J.

A bridge gang of the defendant railroad company, composed of a foreman and nine men, left Melville on a motorcar and trailer at 7 o’clock in the morning to go some 55 miles up the line to do some work. They reached their destination at 11 o’clock. They stopped work at about 3 p. m., according to the foreman, and later according to those of the men who testified in the case, and started back to Melville. They made a stop of about 10 or 15 minutes at Lamourie for water, and another at Meeker of about same length to let a train pass, and another of same duration opposite the house of the foreman, five miles further on, to let the foreman off. They had then traveled 20 miles. The foreman says it was then half past 3, but according to the several members of the gang who testified in the case it was much later. This was on the 17th of November, when the sun sets at 4:43. The foreman testifies that there was ample time for the men to reach Melville before night; but we doubt this, judging from the time they had taken in the morning to travel the 55 miles, and that doubt is confirmed by the conduct of the foreman who went and procured the rear end lamp of a Ford automobile for the men to signal with in case darkness overtook them. Shortly after leaving the foreman, they stopped to let a train go by, and they had gone barely 5 miles when they had to stop again to mend the timer rod. This consumed about 30 minutes. By the time they were ready to proceed, darkness was setting in, so that they lit their lamp. They were then 30 miles from Melville. About a mile and a half further on, they collided with a hog, and plaintiff’s husband, who was riding .on the trailer, was thrown forward, and was run over, and so injured that he died within a few days. His widow and child bring this suit in damages, charging that his death was due to the negligence of defendant.

The grounds of negligence alleged are that the car was unprovided with a headlight; •that the brake was out of order; that the motorman was an inexperienced stripling, weighing less than 100 pounds; that the car was being run at an imprudent speed, and was at best unsafe to ride on, consisting of a platform and two lengthwise benches, with nothing to hold on to.

We do not think that there was anything particularly the matter with this car, or with the manner of its operation, except that we think that, running at night, it should have been provided with a headlight of some kind to enable the motorman to see far enough ahead to stop in time to avoid a collision. Such a headlight as automobiles are equipped with would have answered the purpose, and ordinary prudence, we think, should have suggested the providing of same. We understand very well that such cars are not intended to be run at night, and ordinarily are not; but, if it so happens that on any occasion one of them is to be run at night, as in the present case, ordinary prudence, we think, would require that a sufficient headlight be provided. On this occasion the defendant company was taking the chances of no obstruction being encountered. This it had no right to do, risking the lives of the nine men on this car. The lamp in question was dim. It threw no reflection at all.

The evidence does not show that the hog came so suddenly on the track that the accident would have heen unavoidable with a proper headlight. Even taking the statement of the men made to defendant’s agent an hour or two after the accident, upon which defendant relies so much, the “hog attempted to cross the track 25 feet ahead of the car”; and, even if the distance was less, non con-stat that in the ""day time, or with a suitable headlight, the obstruction could not have been seen in time at least for the car to have been checked sufficiently to avoid catapulting its human load.

Plaintiff is 17 years old; her child, in whose behalf as well as in her own she sues, is 16 months old. Her husband was 25 years old, intelligent, healthy, and of good habits, devoting his earnings to his family. These were $2.50 a day; and in a short time would have been $3.50 a day. His life expectancy was 38 years. Our learned brother below, who tried the case without a jury, allowed $17,500 damages. He did not apportion this amount between the two plaintiffs, and as the plaintiffs did not appeal, and did not pray for such an apportionment in their answer to the appeal, we are unable to make any change in the judgment as between the plaintiffs. Plaintiffs think said allowance is too small, and should be increased. Defendant thinks it is too large, and should be diminished. We see no good reason for changing it.

Judgment affirmed, at defendant’s cost.

O’NIELL, J.,

is of the opinion that, as this case is governed by the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), the amount of the judgment should he the present cash value of 38.81 annual payments of $600 each, discounted at 5 per cent., which, according to the formula adopted in Jones v. Kansas City Southern Railway, 143 La. 307, 78 South, 568, is $12,-747.46, as. will be explained in a separate opinion which he will hand down. See 83 South. 537.