text:
    No. 3399
    Second Circuit
    BROWN v. J. B. McCRARY CO. ET AL.
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    H. Fuller and Geo. M. Wallace, of Winnfield, attorneys for plaintiff, appellant.
    St. Clair Adams, Leslie Moses and St. Clair Adams, Jr., of New Orleans, attorneys for defendants, appellees.
   ODOM, J.

This is a suit under the Workmen’s Compensation Law, Act 20 of 1914, as amended by Act 85 of 1926.

The plaintiff was employed by defendants as a common laborer and, while at work in the course of his employment, he sustained an injury to his hand which necessitated amputation between the hand and the elbow. Under paragraph 5, subsection D, Section 8 of the Act, he was entitled to sixty-five per cent of his wages for 150 weeks.

Subsequent to the loss of the hand, plaintiff, represented by his attorney, Eugene Beck, and the defendants presented a joint petition to the Court, under paragraph 9, subsection (K), Section 8 of the Act, setting forth all of the facts, and, in Section 6 thereof:

“That your first named petitioner desires all compensation due him to be paid in one lump sum, namely the sum of Eight Hundred ($800.00) Dollars which your second named petitioner is willing to do but cannot without the approval of this Court.”

The petition sets out that the plaintiff is of age, that he was at the time of the injury paid a weekly wage of $8.20, and was entitled to receive sixty-five per cent of that sum for 150 weeks. The Court approved the settlement and ordered defendants to pay plaintiff $800.00, plus all medical expenses, amounting to $70.22. The voucher for- $800.00 was promptly-drawn and delivered to plaintiff, Willie Brown, which he endorsed and collected.

Subsequently, the plaintiff, represented by other attorneys, filed the present suit in which it is alleged that the lump sum settlement previously made between him and his employers was not made in accordance with the facts and the law, and was null, void and not binding upon him; and he asks that said settlement be set aside by the Court and that he now be awarded compensation in the sum of $1462.50, which, he claims, was actually due him.

In addition to that sum, he asks that he be awarded an additional sum of one-half of that amount, which the statute allows in cases where the amount awarded in a lump sum settlement has been discounted at a greater rate than eight percent per annum, and in cases where such settlements are made without the approval of the Court.

In the present suit, plaintiff alleges that at the time of his injury he was receiving a wage of $2.50 per day, or weekly compensation of $15.00, and that he was entitled to a settlement based upon sixty-five per cent of $15.00, or $9.75 per week for 150 weeks, or a total sum of $1462.50, instead of $800.00 which was paid him.

The specific grounds alleged as rendering the aforesaid lump sum settlement null and void are that the plaintiff was at the time a minor and was not represented by a parent, tutor or guardian; that the amount actually due him was discounted at a greater rate than eight per cent per annum; that fraud was practiced upon him to induce him to make said settlement; and that said settlement was entered into without the approval of the District Court.

On the trial of this case, the district judge set aside the lump sum settlement which had been previously made, and awarded plaintiff compensation based upon a weekly wage of $15.00 for 150 weeks. But he declined to penalize the defendants by adding to' said sum one-half the amount thereof for the reason, as stated by him, that

“It would seem unjust for this Court to penalize the defendant Companies for the action and conduct of an attorney representing the plaintiff unless there could be shown some fraud or collusion between the attorney for the plaintiff and the agents or officers of the defendant Companies.”

Prom the judgment rendered, the plaintiff has appealed.

OPINION.

The testimony adduced on the trial of the present suit shows that the plaintiff at the time he was injured and at the time the lump sum settlement was made was under the age of 21 years, and that he was not represented in said settlement by a parent or a tutor. The lower court held, and we concur in that view, that the settlement for that reason was not binding upon him. He was without capacity to appear in Court and stand in judgment. The Court further found, and his finding is supported by the testimony, that at the time of the injury the plaintiff was receiving $2.50 per day, or a weekly wage of $15.00, and fixed his compensation at sixty-five per cent of that amount, or $9.75 per week for 150 weeks, and required defendants to pay costs, as well as medical expenses. We think there was error in that judgment.

The serious, and in fact the only, question presented on appeal is whether the Court should, under the circumstances, penalize the defendant companies for making the lump sum settlement. We do not think so.

The evident purpose of the lawmaker in providing that, under some circumstances, the defendant may be required to pay an injured employee or his dependents one and, one-half times the amount actually due him was to prevent unscrupulous employers from imposing upon their ignorant laborers. Certainly it was never intended that the law should work a hardship upon honest employers who deal fairly and justly with their employees. In the case at bar, the record satisfies us that there was no fraud practiced upon the plaintiff by the defendants, or any of their agents or employees, and that there was no attempt to take any unfair advantage of him.

The facts are that the plaintiff is a colored man, was employed by defendants as a common laborer to do a man’s work and at a man’s wage. The record does not disclose that there was anything to indicate that he was a minor. In the negotiations leading up to the lump sum settlement and in the settlement itself, the plaintiff was represented by Eugene Beck, a licensed attorney-at-law. The defendant companies were represented by an agent of the insurance company. In the joint petition presented to the Court asking its approval of the lump sum settlement, . it is glleged that the plaintiff is of age, and that at the time of his injury he was being paid a weekly wage of $8.20, and that he was entitled to sixty-five per cent of this amount, or $5.33 a week, for 150 weeks, making a total sum of $799.50. He was paid exactly $800.00. According to the facts set out in that petition, the amount due 'plaintiff was not discounted at all, as the figures will show.

But counsel for plaintiff contend that the defendants knew that their employee was drawing a weekly wage of $15.00, instead of $8.20, and, for that reason, if for no other, it should be held that defendants knowingly paid plaintiff less than was due him. We are not impressed with this argument for the reason that there was a misapprehension on the part of the employers as to what should be considered the weekly wage of ■ the plaintiff. The testimony shows that plaintiff was receiving $2.50 per day, and that he was paid $5.00 on November 4, $7.50 on November 18, and $7.50 on November 25. Therefore, for a period of something like twenty days he was paid only $20.00. It seems that the defendants were honest in the conclusion that his wages were correctly stated at $8.20 per week. However, since the lump sum settlement was made, this Court has twice held that the daily rate of pay in force at the time of the injury fixes the basis of the amount of compensation to which he is entitled.

Smith vs. Butler, 7 La. App. 338;

Menzel vs. Southern Stevedoring Company, 7 La. App. 703.

At the time this lump sum settlement was made, counsel for defendants knew nothing of these decisions, and, up to that time, there was serious question as to the proper method of arriving at the weekly wage where the employment was not regular and where there were different kinds of work being performed at different rates of pay.

Our conclusion is that the defendants all through acted in good faith. The lump sum settlement was proposed by the plaintiff himself, through his attorney. He represented that he was of age and there was no reason to suspect that he was not. He swore to the petition, which recited that he had reached the age of majority. It is perfectly evident that if any fraud was perpetrated by anybody, it was perpetrated by plaintiff and his attorney, and not by anyone connected with the defendant companies.

Under such circumstances, we approve the lower court’s holding that no penalty should be inflicted in this case, and we accordingly affirm his judgment, with costs in both Courts.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3403
    Second Circuit
    SMITH v. LOUISIANA & ARKANSAS RY. CO.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    Thos. W. Robertson and John G. Gibbs, of Shreveport, attorneys for plaintiff, appellee.
    A. L. Burford, of Texarkana, and White, Holloman and White, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

This is a damage suit, arising out of injuries which plaintiff sustained in a collision between his automobile and a freight train operated by defendant company, at a point where defendant’s line of railroad crosses the Shreveport-Minden public highway on the extreme eastern edge of Bossier City.

Plaintiff alleges that he was traveling east on the highway at a moderate rate of speed, and that on said crossing defendant’s train collided with his automobile, damaging it and seriously injuring him. He disclaims negligence on his own part and assigns as negligence on the part of the defendant company that its train approached a “blind crossing” at an excessive and unlawful rate of speed, without the sound of bell or whistle, and that the engine which was pulling the train had its front end attached to the train and was running backwards; and further, that the defendant company maintained no watchman at the crossing.

. Defendant, in answer, denied any act of negligence on its part, and alleged that it approached the crossing at a moderate rate of speed, with bell ringing, and that the whistle was blown; that it had a lookout on the forward end of the engine, and that, as it approached the crossing, plaintiff, running his automobile at an excessive rate of speed, without stopping, looking or listening, attempted to cross the track ahead of the train and ran into the corner of the tender; and further, that the crossing is not a “blind crossing,’’ and that it was not necessary or customary to maintain a watchman there, and that said accident was due solely to the negligence of plaintiff.

Upon plaintiff’s application, the case was tried by a jury. There was verdict and judgment for plaintiff, and defendant has appealed.

OPINION.

The Shreveport-Minden highway, from where it leaves the traffic bridge over Red River, runs due east and west through the town of Bossier City, and is 100 feet wide up to the railroad crossing. The defendant company’s line of railroad crosses the river some distance south, or down the river from the traffic bridge, and runs northeast, crossing the highway about 200 feet west of the eastern limits of the town. Along the right-hand side of the highway going east, there are houses up to a point within 700 feet of the crossing which obstruct one’s view of defendant’s track. Along this stretch of 700 feet, before reaching the crossing, there was at the time of this accident in June, 1924, only one building—a filling station, which stood adjacent to and fronting the highway. This building, it appears, was 40 feet wide, with its east wall 167 feet west of the crossing. Between this filling station and the nearest house, west, back towards the river on that side of the highway, there is an open space of 414 feet. One standing on the highway at any point along this 414-foot stretch, has an open and unobstructed view of defendant’s line of railroad from where it crosses the river to the highway crossing—a distance of about one-half mile—except that which was obstructed by the filling station. The east edge of the filling station was 167 feet from the crossing. Passing the filling station, going east towards the crossing, the view of the railroad was partially obstructed by an advertising signboard, 10 by 20 feet, either on or near the railroad right-of-way, and by some empty oil barrels stacked between the highway and the railroad. The testimony does not enable us to locate precisely the position of the signboard or the barrels, but they were on the right-hand side of the highway and between the filling station and the crossing. However, it is clear that these obstructions did not cut off the view of the railroad from the highway all along this distance of 167 feet between the filling station and the crossing, so that, if one going east on the highway, after passing the filling station,.had looked to the right in the direction of the railroad track, he could have seen portions, at least, of the track.

The railroad right-of-way at the crossing is 100 feet wide, 50 feet on each side of the track. Some of the witnesses say that one standing on the highway at the edge of the right-of-way, at the crossing 50 feet from the track, on looking to the right would have a clear, unobstructed view of the track back to the railroad bridge. But plaintiff himself says that this unobstructed view could not be had until a point 30 feet from the trade was reached.

There was a fence along the right-of-way and some weeds about three feet high, but these did not obstruct the view.

At about ten o’clock on the morning of June 9th, plaintiff was driving east on the highway. At the same time, defendant’s train, 650 or 700 feet long, consisting of 16 box cars, engine, tender and caboose, was moving northeast on its track. The engine was in front of the train, but had its front end attached to the train so that the tender was'ahead. Plaintiff’s automobile and the tender of the engine reached the crossing at about the same time—hence, the collision.

The testimony on some points is conflicting as is usual in cases of this kind. But there is one point on which there is no conflict, and that is that plaintiff did not stop before going upon the track. Plaintiff himself, as well as every other witness who took the stand, swore that he did not stop. Plaintiff’s account of the accident is that he looked to the right after passing the filling station, and that he looked all the time until he reached the crossing; that he heard nothing and did not see the train until his front wheels were on the track; that he was driving about 10 or 15 miles an hour, until he saw that a collision 'was inevitable, then he swerved to the left and “speeded up” to cross ahead of the train; that he got almost across' but the right corner of the tender struck the rear end of his car. Pie says the car he was driving was a new Buiek, equipped with four-wheel brakes, and that at the speed he was going, he could have stopped it easily in five or ten feet, and again, he said he could have stopped easily in five feet. As to when he saw the train, we quote his testimony at page 52 of the record:

“Q. When you got on the track you saw this car lunge right out before you?
“A. My front wheels on the track and the cow catcher right here and that is the first thing, first time I saw the train or heard it—I figured if I stopped it wouid hit me in the middle of the car and so the best thing to do was to go with it, I gave it the juice and started with it down the track, figured could outrun it to the other side and get by.
* * *
“Q. You were looking at the time as you were driving?
“A. Sure.
“Q. Looking up that track the whole time?
“A. Yes, sir, looking all the time.
“Q. You were looking all the time?
“A. Bet your life, I have been a very careful driver.”

We do not get the impression that plaintiff intended to convey the idea that his view of the track was so obstructed that he could not see the train. On being asked if he stopped, he said:

“A. No I didn’t, didn’t think it necessary to stop, could not. see anything or hear anything, figured the way was clear, few little bushes about like that along there, (indicating three feet high) * * *
“Yes, sir, little taller than the table, I looked down that way, didn’t see a thing in the world, clear spot between the filling station and -where those barrels and things were piled and that signboard.”

We are not impressed with plaintiff’s statement that he did not see the train until his front wheels were on the track, because the highway is 100 feet wide there, and he was driving on the right-hand, side, and the collision took place over on the extreme left-hand side of the highway; when hit, his car had almost cleared the track and was struck on the rear right-hand side. It is plain enough, we think, that he began to swerve his car to the left before he reached the track for he crossed the highway from the right to the left-hand side. If he had turned to the left after reaching the track, he would have run on the track until overtaken and would have been hit from the rear. It is more probable, we think, that he saw the train before he reached the track and, either underestimated the speed of the train or overestimated the speed of his car, and, as he puts it, “gave it the juice” and “speeded up” in the hope that he could cross ahead of the engine.

Mr. Calcóte, a witness called by plaintiff (p. 28), testified that there was' nothing to keep plaintiff from seeing the train before he got to the filling station, as he had a clear view of the track, and as to whether he could see the track and train after passing the filling station, he was asked:

“Q. Then after passing your (filling) station he had a view of the track?
“A. Yes. * * *
“Q. After he passed the signboard and barrels he had about 30 feet more before reaching the railroad?
“A. Yes.”

And he said after getting to within thirty feet of the track, plaintiff had a clear view of the track back to the river. The testimony clearly shows that portions of the track are visible from the highway after passing the filling station before getting to the barrels or signboard; in other words, there were open spaces through which plaintiff could have seen the train moving, if he had looked.

The above is testimony given by plaintiff and his own witnesses, and this testimony as to the view of the track is corroborated by all the witnesses, both for plaintiff and defendant. It follows necessarily that if plaintiff had looked, he could have seen the train. The conclusion is, therefore, inescapable that if he did not see the train, he did not look. He says he did not see it, and he and all of the witnesses say that he did not stop.

The duty to stop, look and listen before attempting to negotiate a railroad crossing is one of universal recognition. In the case of Baltimore & Ohio vs. Goodman, Administratrix, (C.C.A.), 10 Fed. 2 Ed., page 58, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 569 A. L. R. 645, Justice Holmes, organ of the Court, speaks of that duty as a “standard of conduct.” He said:

“But we are dealing with a standard of conduct, and when the standard is clear, it should be laid down once for all by the Courts.”

"We quote the following from that decision :

“When a man goes upon a railroad track, he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such circumstances it seems to us that if the driver cannot be sure otherwise whether a train is dangerously near, he must stop and get out of his vehicle, although obviously he will not often be required to do more than stop and look. It seems to us that if he relies upon not hearing the train or any signal, and takes no further precaution, he does so at his own risk.”

The duty to stop at railroad crossings has been modified by our own Supreme Court to this extent only; that when one approaching a railroad crossing, has a clear view of the track, and can ascertain without stopping that the way is clear, he need not come to a dead stop. In the case of Holstead vs. Vicksburg, Shreveport & Pacific Ry. Co., 154 La. 1097, 98 So. 679, the Court said:

“If one can see that his way is clear sufficiently, under reasonably normal circumstances to pass without danger, he is justified in going ahead; or if, as in this case, the view is obstructed, he should approach cautiously until a view may be had.”

As to tile duty to stop, look and listen, see:

Young vs. Louisiana Ry. Company, 153 La. 129, 95 So. 511; Douall vs. N. O. Railway & Light Company, 147 La. 1012, 86 So. 477; Leopold vs. Texas & Pacific Ry. Company, 144 La. 1000, 81 So. 602; Gibbens vs. N. O. Terminal Company, 159 La. 347, 105 So. 367; Callery vs. Morgan’s Louisiana & T. R. & S. S. Company, 139 La. 763, 72 So. 222.

The plaintiff was guilty of the grossest kind of negligence, and, if it be conceded, as he alleged, that the defendant company was negligent in the operation of its train, his own contributory negligence bars- recovery, if such negligence was the main contributing cause of the accident.

Young vs. Louisiana Western Ry. Company, 153 La. 129, 95 So. 511; Callery vs. Morgan’s Louisiana & T. R. & S. S. Company, 139 La. 763, 72 So. 222, supra; and Loftin vs. Louisiana Ry. & Navigation Company, 135 La. 33, 64 So. 972.

However, we do not find that the railroad .company was negligent. , This was not a “blind crossing,” and there is no ordinance or regulation requiring the railroad company to keep a flagman or to stop there; and, while the witnesses for plaintiff testified that they did not hear the bell or whistle, the testimony of other witnesses who are positive on the point has convinced us that, as a matter of fact, the whistle was blown and that the bell was ringing. Some of the witnesses for plaintiff testified that they were about their business at the time and did not hear the crossing signals. But all those witnesses, and there were a number of them, whose duty and business it was to watch the crossing were positive on the point. We refer especially to the train crew of the Kansas City Southern, each member of which testified that its line of railroad crossed that of the defendant company within a short distance of the highway crossing, and that it was the rule in cases where there was a train approaching the railroad crossing on each line of railroad, the right-of-way was given to the one which signaled first, and that the Kansas City Southern train was stopped before reaching the crossing on account of the signal given by defendant. These witnesses were in plain view of the highway crossing at the time of the accident and some of them saw it. At least four members of defendant’s train crew testified positively that the whistle was blown and that the bell was ringing. The verdict of the jury and the judgment based thereon are manifestly erroneous.

For the reasons assigned, the judgment appealed from is reversed, plaintiff’s demands rejected, and this suit dismissed, at his cost'.


text:
    No. 2619
    Second Circuit
    DWYER v. SMITH
    (April 5, 1929. Opinion and Decree.)

      Jas. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    M. L. Dismukes, of Natchitoches, attor-' ney for defendant, appellee.
   ODOM, J.

This is an action of boundary brought under Articles 823 and 824 of the Civil Code. The plaintiff alleged that he owned a certain tract of land in the Parish of Natchitoches which is bounded on the east by a tract owned by the defendant, G. Percy Smith, and that the boundary line between the two tracts is unknown and unmarked; that he had been unable to obtain defendant’s consent to have said boundary line established; and he prayed that the Court appoint a surveyor to establish the line according to the methods prescribed by the Code.

The Court apointed Donald E. Fuellhart, a licensed surveyor, to survey said line and make due return to the Court. Fuellhart made the survey and returned to the Court his proces-verbal, together with a plat showing the boundary line as fixed arid .established by him.

Plaintiff then ruled defendant to show cause why the proces-verbal and the survey, showing the line established, should not be approved, homologated and made the judgment of the Court.

The order .appointing Fuellhart to make the survey and establish the boundary line is dated June 4, 1925. On July 17th following, the defendant filed in Court an objection to. the appointment of Fuellhart reciting, among other things, that he had been desirous of having the line established and desired that Y. G. Hyams, surveyor, do so, but that such selection was not satisfactory to plaintiff who wished to have Fuellhart appointed;* and “he shows that there are other surveyors in the Parish, competent and qualified, and that neither of the ones selected by the litigants should be appointed, but one selected by the Court, other than Hyams or Fuellhart.” But the Court had already appointed Fuellhart, who proceeded with the work. It does not appear that defendant during the progress of the work made any objection thereto—that is, to the method of locating and establishing the line, as no mention thereof is made in Fuellhart’s proces-verbal, although according to the return, the defendant was duly notified and was present while the survey was being made. (See Art. 837, C. C.)

Fuellhart’s proces-verbal and his plat were returned and filed in Court on October 23, 1925. On November 21st following, defendant made answer in which lie admitted that plaintiff’s lands are bounded on the east by lands of G. P. Smith, but averred that the line dividing the two estates had already been run and established by V. G. Hyams, surveyor, which line,’ he alleged, should be accepted by the parties; that the line established by Hyams had been approved by the plaintiff, Dwyer, and that he is now estopped to deny the correctness of said line.

He especially denied the necessity of running a new line .and denied that the line established by Fuellhart, as shown in his proces-verbal and plat, is correct. Upon trial of the rule to show cause, the lower court rendered judgment as follows:

“That plaintiff’s suit and action be and the same is denied and dismissed; and it is further ordered, adjudged and decreed that the rule and motion to homologate the proceedings and proces-verbal of survey as made by Donald E. Fuellhart, be and the same is denied and rejected and disallowed.”

And it was further ordered:

“That either party to the said suit may proceed by such action, petitory, possessory, jactitation or otherwise, as he may deem fit and proper.”

From this judgment plaintiff appealed.

OPINION

The only question presented for our decision is whether 'the boundary line established by Fuellhart, as shown by the proces-verbal of his survey and the plat which he annexes, is correct.

Defendant admitted, in answer that there was confusion and dispute as to the correct location of the boundary line, and alleged that he himself had desired that the line be re-established by a surveyor. Counsel for defendant in brief says:

“The lower Court found that the property of Dwyer' (plaintiff) and Smith (defendant) was not contiguous and therefore denied the demands of plaintiff, and refused to confirm the survey made by Fuellhart.”

And he now urges that point in this Court.

We have no means of knowing upon what theory the District Judge based his judgment, other than as stated by counsel, as the Judge assigned nb written reasons. But, if counsel is correct in his statement, it is very evident that the Judge overlooked paragraph 3 of the first part of. defendant’s answer, which reads as follows:

“Admits Article 3 to the effect that plaintiff’s lands are bounded on the East by lands of G. P. Smith, same being the Old Powell Place.”

So that plaintiff having alleged and defendant having admitted in answer that the two estates are contiguous, that point passed out of the case. Aside from the pleadings, however, the proof is abundant and clear that the two tracts are contiguous, as will presently be stated.

The boundary line in dispute is one which runs north and south, plaintiff’s land being on the west, and defendant’s on the east thereof. Fuellhart, appointed by the Court to make the survey, established the line on the quarter section line between the SW% of SWy and the SE% of the SW(4 of Section 33, Township 9 North, Range 8 West, projecting said line south across the township line into Section 4, Township 8, down to St. John’s Bayou, as plaintiff owned all the land in the NWS of the NW% of Section 4 north of that Bayou, and, as defendant owned the Ny2 of the NE% of NW% of said Section 4. The line located by Fuellhart is seven (7) chains east of a line which had been previously established by Y. G. Hyams, another surveyor, whose survey was extra judicial. Defendant contends that Hyams’ line should be accepted, and the lower court seems to have entertained the same view, which view is erroneous as we shall show.

Plaintiff purchased the land which he now owns under two separate deeds. On October 10, 1916, as per deed recorded in conveyance book 140, page 407, he purchased from J. S. Powell land described as follows:

“That certain tract of land in the Parish of Natchitoches, Louisiana, and known as a part of the E. S. Wallace home place on the north side of the main model road between Natchitoches and Robeline and being in the SW% of Section 33, Township 9 North, Range 8 West, with all the buildings and. improvements thereon, and being bounded on the north by Lot 3 of the John Freeman tract, on the east by the Old Powell Place, now C. A. Hart; on the south by the model road, and west by the land of George Berry, 53 acres; and being the same land .acquired by vendor from E. S. Wallace on the 21st day of March, 1913.” (Boldface type ours.)

His other tract is adjacent to the above on the south, and was purchased from B. W. Duke on November 8, 1922, as per deed recorded in conveyance book 150, folio 456, and is described as follows:

“That certain tract of land situated in Natchitoches Parish, Louisiana, in Section 33, Township 9 North, Range 8, and in Section 4, Township 8 North, Range 8 West, and lying in the southwest corner of Section 33, Township 9 North, Range 8, and in the northwest corner of Section 4, Township 8 North, Range 8 West, and being the same -land acquired by B. W. Duke from the succession of Nor-wood T. Smith, as recorded in book —, folio —, in the records of this Parish, containing 20 acres, more or less; and being bounded on the north by Jefferson Highway, on the south by St. John’s Bayou, on the east by C. A. Hart, and on the west by section line.” (Boldface type ours.).

As the east boundary of plaintiff’s land is the line in dispute, we must bear in mind that in the former deed the land is bounded on the east by the Old Powell Place, now C. A. Hart, and the land described in the latter deed is bounded on the east by C. A. Hart.

Now, if we can located the west boundary line of the Old Powell Place, as owned by Hart at the time plaintiff purchased his two tracts, we will have located" also the east boundary line of plaintiff’s land, because both of plaintiff’s tracts are bounded on the east by the Powell Place, now owned by Hart. This line is easily located by referring to the deeds filed in evidence.

On December 6, 1913, C. A. Hart (mentioned in plaintiff’s deeds), purchased of the succession of Mrs. Elvira Powell, as per deed recorded in conveyance book 136, folio 310, the following described land:

“A certain tract of land being the SWÍ4 of SE’% and SE1^ of SW%, Section 33, Township 9 North, Range 8 West, less 5 acres; and N% of the NE% of NW% and N% of the NW% of NE*4 of Section 4, Township 8 North, Range 8 West, less 31.88 acres, sold J. B. Hawthorne, as shown in book 134, folio 613.”

This last described land is the Old Powell Place . referred to in plaintiff’s deed as forming the east boundary line of the land which he purchased, and, as said lands are described by legal or governmental subdivisions, their western boundary is easily located.

Among the subdivisions sold was the SE% of the SW% of Section 33, Township 9 North, Range 8, and the N% of the NE14 of the NW% of Section 4, Township 8 North, Range 8, which subdivision is adjacent to and south of that in Section 33. So that the west boundary line of the Old Powell Place is the quarter section line on the west side of the SE% of the SW% of Section 33 and the west side of the NE% of NW% of Section 4. So that, as plaintiff’s land is bounded on the east by the Powell Place, the dividing line between plaintiff’s land and • that which belongs to defendant is necessarily the quarter section line.

Going further, we find that the Old Powell Place is the land now owned by defendant, Smith, he having purchased it from C. A. Hart on January 9, 1924, as per deed recorded in notarial record book 152, page 356, the land which he purchased being especially referred to as the Old Powell Place, and described by legal subdivisions as follows:

“That certain tract of land known as thq Old Powell Place and being the SW% of SE% and the SE% of SW% of Section 33, Township 9 North, Range 8, less 5 acres; and the N% of NE% of the NWÍ4, and the -N% of NWÍ4 of the NE% of Section 4, Township 8 North, Range 8, less 31.88 acres sold to J. B. Hawthorne, bounded north by N. T. Smith succession, formerly Freeman succession and succession of Lawrence Stevens, east by succession of Lawrence Stevens, south by Hawthorne and west by John Dwyer.”

It is, therefore, clear as can be that the west boundary line of the Old Powell Place now owned by defendant is the quarter section line. And in this connection it is well to note that defendant’s deed recited that the land which he purchased is bounded on the west by the land of John Dwyer, the ¡plaintiff in this case.

When Fuellhart went out to locate the boundary line between the plaintiff’s land and that of defendant, he had before him the title papers of both parties, and, concluding from them that the correct line was the quarter section line, he proceeded to locate that line. Defendant’s counsel does not contend that the quarter section line was not correctly located by Fuellhart, his contention being that the quarter section line is not - the boundary line, because to establish it there would give plaintiff more land than his deed calls for.

All the confusion over the location of the boundary line between these proprietors has arisen, we think, over the fact that the aggregate acreage purchased by plaintiff in his two deeds is stated to be 73 acres. When Hyams made his survey, he located the plaintiff’s south, west and north lines, and, finding that his deeds called for 73 acres, he ran the north and south line on the east of the tract just far enough over to include that acreage, which line was seven chains west of the quarter section line.

In locating the east boundary line of plaintiffs land as he did, Hyams overlooked the fact that plaintiffs land was described by metes and bounds, from one fixed boundary to another. He knew, or should have known, that defendant owned the Powell Place, and that plaintiff’s land was bounded on the east by that tract. But he did not have before him at the time of his survey defendant’s title papers. He was .asked:

“Q. You don’t know how far west Smith’s line runs?
“A. If I took Smith’s description, I would run the same line that Mr. Fuellhart ran.”

This is a recognition by Hyams that the line established by Fuellhart is correct. In establishing boundaries, the surveyor .should consult the title papers of both parties.

Counsel for defendant in brief stresses the fact that if the line established by Fuellhart is the correct boundary line, then plaintiff owns approximately 112 acres of land, whereas his deed calls for only 73 acres, for which reason the line should be established where Hyams located it. Counsel is in error. Plaintiff’s land is described by metes and bounds. Article 854 of the Civil Code reads as follows:

“If anyone sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.”

Finally, counsel for defendant says that plaintiff is estopped to deny the correctness of Hyams’ line, he having approved and acted in accordance with it. The facts are that in April, 1923, plaintiff made application for a loan to be secured by mortgage on his land, and was requested to furnish a plat. He got Hyams to make a survey and the plat, which plat he attached to the act of mortgage. Plaintiff testified that he was not satisfied with this survey, and there is nothing to show that he was. Regardless of the plat, we note that the land which he mortgaged is described as being bounded on the east by the Old Powell Place, now owned by C. A. Hart.

It is necessary that we apportion the costs to be borne by the respective litigants. Article .663 of the Civil Code requires that the costs for fixing boundaries be borne jointly by the adjacent proprietors, so that the cost of the survey and the establishment of the line should be paid jointly by plaintiff and defendant, one-half by each.

As to the court costs, we think the costs up to the filing of defendant’s answer, should also be paid jointly by these litigants, because it does not appear that defendant denied originally the necessity of having the line established judicially, although it is alleged by plaintiff that defendant would not assent thereto. But, it seems that defendant did not deny the necessity of having the line established, his objection being leveled at the appointment of Fuellhart to make the survey. But the. Court appointed Fuellhart, who made the survey with defendant present. He made no objection to the survey. Fuellhart returned his proces-verbal and plat into court, and it was then that defendant registered his objection, not to the necessity of establishing the line, but rather to the line as located. Having provoked the controversy which rendered necessary the taking of testimony and this appeal, and having been found by this Court to be in error, he should pay all costs resulting from the filing of and which accrued subsequent to the filing of his answer, including the cost of appeal.

Gaude vs. Williams, 47 La. Ann. 1325, 17 So. 884.

Tircuit vs. Pelanne, 14 La. Ann. 215.

Andrews vs. Knox, 10 La. Ann. 604.

Lawes vs. Watson, 12 La. Ann. 216.

Capo vs. Blanchard et al., 1 La. App. 3.

If it clearly appeared that defendant from the beginning denied the necessity of establishing the line and had resisted the action all through, we should direct that he pay all costs, including the survey, under authority of Williams et al. vs. Close et al., 14 La. Ann. 737.

If, technically, we have erred in apportioning the costs, our decree in that respect, we think, is sanctioned by equity.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and set aside; and it is now ordered, adjudged and decreed that the proces-verbal of the survey made by Donald E. Fuellhart, surveyor appointed by the Court, returned and filed by him as the law requires, establishing and fixing the boundary line between the lands owned by plaintiff and defendant on the quarter section line, as shown by plat made and filed by him, be approved, homologated and made the judgment of this Court.

It is further ordered and decreed that all costs incurred in fixing the boundary between the two estates and all court costs incurred previous to the filing of defendant’s answer be paid jointly by plaintiff and defendant, one-half by each; and that all other costs be paid by defendant, Smith.


text:
    No. 3405
    Second Circuit
    PALMER v. AVALON OIL CO. ET AL.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      Craig, Bolin and Magee, of Mansfield, attorneys for plaintiff, appellee.
    W. M. Pollock, of Mansfield, attorney for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit to collect certain amounts due him and his minor son on salary, and the sum of $22.56, alleged to have been collected by defendants from certain laborers for account of plaintiff and not paid by defendants, and asks judgment against the defendant corporation in solido.

The suit is in rem, plaintiff alleging that both defendants are foreign corporations not authorized to do business in this State and that neither had designated an agent in this State upon whom service and citation might be made. In order to obtain jurisdiction, plaintiff asked that the property of defendants within the parish, or a sufficient amount thereof to satisfy his claim, be attached. Under orders of the Court, certain property belonging to defendants was attached and citation and service made by posting and upon a curator ad hoc appointed by the Court.

Both defendants filed exceptions to the petition and citation on the grounds that, to plaintiff’s knowledge, they both maintained an office in the Levy Building, City of Shreveport, this State, in which city their secretary-treasurer and other officers resided “where service of citation could easily be made upon your exceptors, and, in the alternative, show that as exceptors are foreign corporations doing business in this State, cannot be brought into Court by service and citation through a curator ad hoc, but that in event of failure to obtain service and citation upon your ex-ceptors through its officers, living and residing in the City of Shreveport, Louisiana, service and citation shoald have been made according to Act 267 of 1914, as amended by Act 197 of 1918, upon the Secretary of State of Louisiana.’’

The Court overruled the exception, whereupon, the defendants, with reservar tions, filed answer denying the debt, and prayed that the attachment be dissolved, with $50,000.00 damages. There was judgment in favor of plaintiff, as prayed for, sustaining the attachment, and defendants appealed.

ON EXCEPTION TO CITATION.

The main point presented for onr consideration and decision is whether defendants have been cited and served according to law.

It is conceded that both defendants are foreign corporations not engaged in the business of insurance, and that they have not, as a condition precedent to being authorized to do business in this State, filed in the office of the Secretary of the State a written declaration of their domicile and place of business and the name of their agent or agents upon whom process may be served, as required by Act 184 of 1924, p. 286, nor with Act 194 of 1912, p. 382, making it the duty of foreign corporations doing business in this State to file with the clerk of the District Court in the parish in which it establishes a place of business, the name of the person upon whom process may be served.

The testimony shows that when this suit was filed, and for a considerable time prior thereto, the defendants were engaged in drilling for oil in the Parish of DeSoto and had brought in a producing well in that parish known as “Payne No. 1.” They had also been operating just across the state line in Texas, and had there drilled a well known as the “Pickering” well. While engaged in these operations, they maintained an office in the Levy Building, in the City of Shreveport, Caddo Parish, from which all these operations were carried on. But they had overlooked, or at least had failed, to comply with the laws of this State requiring foreign corporations to make declaration of their place of business and to appoint an agent upon whom service of process might be made.

As we understand the contention made by counsel for defendants, it is that even though they had failed to comply with these laws, the fact that they were engaged in business in this State and maintained an office here in which its officers could be found, rendered them immune from the drastic. remedy of attachment, as provided in the Code of Practice, Article 240, authorizing attachments “where such debtor resides out of the State;” or, in any event, under the circumstances of this case, the service should not have been made by posting and upon a curator ad hoc, but upon the Secretary of State, as provided in Paragraph (c), Sec. 26, Act 267 of 1914, p. 521, and sub-paragraph (c), paragraph (6), Sec. 1, Act 179 of 1918, p. 334.

Taking up these points in reverse order, we note that counsel in support of his contention that service should have been made on the Secretary of State, under the acts above noted, cites the case of McGovern vs. United Railway Men’s Oil Association, 157 La. 966, 103 So. 280, which he says is controlling on the point. But that case is not authority for the contention here made.

In tliat case, it was alleged and it was true, that the defendant was a foreign corporation and at the instance of plaintiff attachment was levied on the property of defendant, and service was made on a curator ad hoc and by posting. The defendant excepted to the citation and contended that service should have been made upon the Secretary of State. The Court held in the origina^ opinion and on rehearing that, under1 the conditions there shown to exist, there was in fact no citation and service at all, and counsel asks this Court to so hold in the case at bar.

But counsel has overlooked the fact that the distinction between the facts as found by the Court in that case and those which we find here is marked and manifest. In that case, the fact was that the defendant, which was a foreign corporation, had complied with the law, and, said the Court on rehearing:

“* * * availed itself of all of the advantages of the laws of this State, it had duly appointed an agent for the purpose of service of process, and at the time this suit was instituted, it was maintaining such agent in the State and in the jurisdiction in which the suit was brought.”

There, as here, the suit was in rem, and the Court held that, under such circumstances, service on a curator ad hoc was no citation at all. In that case, the corporation, although organized in another state, had, by complying with our statutes, made itself to all intents and purposes, a domestic corporation. When a foreign corporation comes to this State to engage in business, and, as a condition precedent, complies with our laws by designating a domicile and appointing an agent, it thereafter enjoys all the privileges and benefits, as well as immunities, of a domestic corporation. In matters of jurisdiction, such corporations are residents of this State and not absentees. Therefore, their property need not be attached in order to obtain jurisdiction.

Now, what was the situation when the plaintiff in the case at bar brought his suit? His debtors were corporations organized in a state other than Louisiana. They had no legal domicile, no agent here. They were, therefore, absentees. By the express tefms of Article 240 of the Code of Practice, a creditor may obtain an attachment “when such debtor resides out of the State,” and in suits in rem, such as this was, the attachment “was the very foundation of the suit and stands in the place of the citation required in ordinary proceedings.”

Burgin Bros. & McCane vs. Barker Baking Co., 152 La. 1075, 95 So. 227.

Referring now to the suggestion that the defendant corporations were engaged in business in this State and had an office here, and that service could have been made upon someone in the office, and that, therefore, attachment for jurisdictional purposes was unnecessary, the answer is that they were in law absentees and owned property within the jurisdiction of the Court; that this was not an ordinary proceeding, but a suit in rem and the law is that the property of an absentee, situated within the jurisdiction of the Court, may be attached in such suits, even though the absentee be present in the State—the reason being that there is no other method by which such persons and their property can be made amenable to our tribunals.

(Burgin Bros & McCane vs. Barker Baking Company, supra, and the cases there cited.)

In the case of Bryan et al. vs. Dunseth et al., 1 M. (N. S.) 412, the Court said:

“Our attachment laws distinguish several cases in which an attachment will lie, and amongst them is the situation of a person who resides permanently out of the territory or state. This remedy given in such terms cannot be destroyed, annulled or suspended by an accidental and transient presence of a stranger.”

In Rayne vs. Taylor & Company, 10 La. Ann. 726, it was specifically held that the property in this State of a non-resident debtor may be attached, even “though he had a commercial domicile in the State.”

In the case of DePoret vs. Gusman et al-., 30 La. Ann. 930, the Court said:

“The mere fact of non-residence gives the right of attachment even though the debtor is present in the State.” (Citing Bryans et al. vs. Dunseth, 1 M. (N. S.) 412, and Sandel vs. George, 18 La. Ann. 526.)

In Allison vs. Brown, 148 La. 580, 87 So. 262, Brown employed Allen to drill a well in Union Parish on a lease which he owned. Brown was an absentee, but engaged in business in this State. Allison sued him and had his property attached. The question of his right to attach does not seem to have been raised, but the Court said:

“Defendant was a non-resident and plaintiff had the legal right, if his claims were due, to resort to attachment.” (Citing C. P., Art. 243.)

Counsel call attention to Paragraph 6, sub-paragraph (c), Sec. 1, Act 179 of 1918, which provides that if the corporation (foreign) be one required by law to appoint and maintain an agent in this State, has failed to do so, as in this case, “and said corporation has not established and maintained an office in this State,” service should be made on the Secretary of State. But the present suit is not an ordinary proceeding, but a proceeding in rem only, and it was held in the case of National Park Bank vs. Concordia Land & Timber Company, (Black River Lumber Company, Garnishee), 154 La. 31, 97 So. 272, that the Legislature by adopting Act 179 of 1918 did not intend that its provision with reference to citing non-resident corporations should apply to suits in rem, for, if such had been the intent, then there would, be conflict between the act and the articles of the Code of Practice authorizing the attachment of property of nonresidents; and it was specifically held that there was no conflict and that the articles of the Code pertaining to attachment of the property of non-residents were not repealed. The Court, after quoting Section 3 of said act, providing that nothing in the act should be held to impair or affect proceedings by attachment or proceedings in rem as now authorized by law, said:

“By this provision, it will b'e observed that proceedings in rem authorized by law at the time of the adoption of the act, which include those < used in this case, are expressly preserved.”

Our conclusion is, and we hold, that plaintiff’s proceedings by attachment and the appointment of a curator ad hoc were proper.

ON THE MERITS.

Counsel’s only complaint in this respect is that the judgment is excessive. We do not think so. The testimony supports the findings of the lower court as to the amount due. True, there is some conflict in the testimony on this point. A decision on the point involves the accuracy and veracity of the witnesses. The Judge of the District Court was in better position to pass on such matters than we are, and we shall not disturb his findings.

Por the reasons assigned, the judgment appealed from is affirmed, with costs in both" Courts.


text:
    No. 3428
    Second Circuit
    PACE v. CLARK & MELAT DRILLING CO.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      Craig, Bolin and Magee, of Mansfield, attorneys for plaintiff, .appellee.
    W. M. Pollock, of Mansfield, attorney for defendant, appellant.
   ODOM, J.

The corporation made defendant in this suit was also defendant in the suit of C. H. Palmer ■ vs. Avalon Oil Company et al., No. 3405 on the docket, 120 So. 781, this day decided.

The issues presented in this suit with reference to citation and service are identical with those presented and decided in that case. It is, therefore, unnecessary to state and discuss them here.

On the merits of this case, there is practically no defense offered. Plaintiff testified that the lumber for which he claims pay was sold, delivered to and used by defendant. Defendant’s only witness, Mr. J. E. McAnney, secretary-treasurer of the defendant corporation, testified that he was not in position to dispute the account.

For the reasons assigned in the case of C. H. Palmer vs. Avalon Oil Company et al., No. 3405 on the docket of this Court, this day decided, and by reason of the testimony on the merits being in favor of plaintiff, it is ordered that the judgment be affirmed, with costs.


author: REYNOLDS, J.

text:
    No. 3113
    Second Circuit
    DYE v. DEMOPOLIS
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      Thatcher, Browne, Porteous and Myers, of Shreveport, attorneys for plaintiff, appellee.
    Murff and Perkins, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, A. J. Dye, sued defendant, John Demopolis, for $509.74, as the price of labor performed and material furnished by him m repairing an automobile belonging to defendant; and, alleging that the work was done and the material furnished on a Cadillac touring car, Model 61-C, No. 504, and that he had a privilege on the automobile to secure the payment of the debt, and that he feared the defendant would sell, part with or conceal the car pending the suit, he obtained the issuance of a writ of sequestration and had the automobile impounded.

The defendant denied the correctness of the account, and assuming the character of plaintiff in reconvention asked for judgment against plaintiff in the sum of $1,000, alleging that he had been damaged in that amount by plaintiff, who was his friend and in whose judgment he reposed confidence, inducing him to buy the Cadillac automobile from W. D. Keith Motor Company for the price of $1750, when he, plaintiff, knew the Cadillac to be worth not more than $750.

On these issues the case was tried and there was judgment in favor of the plaintiff for the amount sued for and sustaining the writ of sequestration and rejecting defendant’s reconventional demand and the defendant appealed.

OPINION

Plaintiff testified that the labor was performed and the material furnished for the automobile and that they were of the value charged defendant; and, as to this, defendant, in brief, says:

“As to the legality and truthfulness of plaintiff’s claim for repairs and parts, defendant is at the mercy of plaintiff, for he knew and knows nothing about machinery or automobiles, and it would be almost impossible for him, or any one else, to know just what repairs and parts had been used on the car during the three or four months time; hence, we shall be forced to rest our defense on defendant’s reconventional demand.”

This admission leaves for our consideration only the reconventional demand. And in considering it the first question that appears pertinent is the value of the Cadillac car.

W. D. Keith testified that he was the manager of the W. D. Keith Motor Company that had sold the defendant the car in question; and,

“Q. What condition was it in when you took it over, Mr. Keith?
“A. Randall Moore had returned from a trip that he made through Virginia, and we had put it in good condition.
“Q. Did you take that car in, on a trade with Mr. Moore?
“A. Yes.
“Q. What did you allow Mi’. Moore for that Cadillac?
“A. Nineteen hundred and sixty-five dollars.
“Q. Was it worth that? Did you consider it worth that?
“A. Well, at that time, the way Cadillacs were selling, I considered it worth that much or more; especially after we had put it in the condition that it was in at the time of the resale.
Sji ‡ Sf: }£ s{i
“Q. Did you drive this one and examine it before you traded it to Mr. Demopolis?
“A. Yes, sir.
"Q. Was this car in good, serviceable condition?
“A. Absolutely. Now, if you will pardon me—
“Q. Go ahead.
“A. We didn’t connive with Mr. Dye. I didn’t know Mr. Dye from Adam’s off ox. I never had anything to do with him.
ij: % sf* ‡
“Q. Was Mr. Dye your agent in making this deal between you and Mr. Demopolis ?
“A. Not previous to this time—no, sir.
“Q. Did you have any agreement with Mr. Dye at all prior to the time that this trade was made, as to any commission, or fee you were to allow him for making this deal?
•“A. Absolutely not.
$ ‡ ‡ ‡ $
“Q. After this time, did you allow Mr. Dye a small commission for this work, Mr. Keith, if you remember?
“A. Not for any work, no.
“Q. That is, for?
“A. But Mr. Dye came into my office some days later and I asked him, I says: ‘Dye, we want to give you something in the way of a commission on this sale, as we do on all our sales.’ He said: ‘Now, Mr. Keith, I am going to leave that entirely with you.’ We were paying, at that time, three and a half per cent, commission, which was thirty-five dollars on this sale.
“Q. You allowed him $35?
“A. Yes, sir; and he did not ask for a penny in the world. ”
T. Randall Moore testified:
“Q. He stated that he allowed you nineteen hundred and sixty-five dollars? Is that correct?
“A. Approximately so. I have forgotten the exact figures, but that is approximately correct.
“Q. Mr. Moore, what was the condition insofar as you know, of that car as a second-hand car when you traded it in? Was it in good, serviceable condition?
“A. Well, it was giving me fair accommodation; o.f course subject to the usual wear and tear that you give a car that had been driven for the length of time that this had. I tried to keep it in good* repair, and made it a practice to do that. If it had anything the matter with it, or wrong with it', outside of the usual natural wear, I didn’t know it.
‡ ‡ ‡ ‡
“Q. You had run this car twenty-seven thousand miles when you turned it in?
“A. I think that is approximately right. $ ^ ‡ $
“Q. Is twenty-seven thousand miles a great mileage for a Cadillac?
“A. Well, the Cadillac car I had owned before that, I drove fifty thousand miles and traded it in, and I have had no bad report from it since.
W. D. Keith testified:
“Q. Is twenty-seven thousand miles a big mileage for a Cadillac car to make, ordinarily? In other words, is that the life of the car?
“A. No; I would' judge, Mr. Browne, probably they will go from seventy-five to one hundred thousand miles; a person can get that much out of one and people do get that much out of them.
G. M. Keith testified:
“Q. What was the condition of that Cadillac ear at that time?
“A. It was in good, serviceable condition.
‘‘Q. It has been testified here that that car was traded or sold for around nineteen hundred dollars.. Would you say that car was worth that amount?
“A. Well, I don’t know what the car was sold for nor when it was sold, but it was worth that much at that time.”

The only evidence at variance with the testimony of these witnesses is the testimony of the plaintiff himself who, however, admits that he knows nothing about an automobile beyond how to drive it.

“Q. All right, John; I will ask you right there—do you know anything about a car yourself?
“A. No, sir; I drive a car, is all I know; I don’t know anything about it.”

This evidence convinces us that the value of the car ■ at the time defendant acquired it was at least $1800, which is more than defendant gave for it, and it follows therefore that plaintiff did not misrepresent its value to defendant.

But defendant’s able counsel earnestly insist that the fact that repairs, costing $500, were needed on the car by November following its purchase in May, shows that the car was not worth what was paid for it at the time of the trade.

This argument loses force when it is considered that the car had been driven for five months after the trade and for more than 8,000 miles. In the two years that Randall T. Moore had owned the car it had been driven little more than three times this distance. And during the five months after defendant acquired the car it had been run at times without oiling and had received hard usage. It was also shown that an -automobile’s machinery may be ruined in a very short time or after it has been run only a short distance, by improper usage.

Defendant, plaintiff in reconvention, having alleged error superinduced by fraudulent misrepresentations on the part of plaintiff, as the basis of his claim for damages, carried the burden of proof to establish such facts; Palfrey vs. Stinson, 11 La. 77, and not only has defendant, plaintiff in reconvention, failed to discharge this burden, but plaintiff has shown the allegations to be baseless.

Defendant, plaintiff in reconvention, asserts that plaintiff, while holding himself out as his friend in the trade between himself and W. D. Keith Motor Company was, without so informing him, the agent of the W. D. Keith Motor Company and received from it a commission for effecting the sale of the automobile to him.

The evidence does not establish the agency alleged, and though it does show that plaintiff received - a commission as charged it also shows that none was contracted for or expected by plaintiff and that the amount received for his services was more in the nature of a gratuity than payment for services rendered.

However, even had the W. D. Keith Motor Company been under obligation to pay plaintiff a commission, on the sale, defendant, plaintiff in reconvention, had no ground to complain, since, as we have found, there was no error or misrepresentation. There was no contractual relation, express or implied, between plaintiff and defendant, and if it were true (as it is not) that plaintiff’s advice caused defendant a loss, it would only be another proof of the well-known fact that free advice is rarely worth anything.

The lower court, after seeing and hearing the witnesses testify, awarded plaintiff judgment for the amount sued for and rejected defendant’s reconventional demand. A careful reading of the record convinces us that the judgment is correct and, accordingly, it is affirmed.


text:
    No. 3464
    Second Circuit
    K. C. S. & G. RY. CO. v. MEYER ET AL.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous and Myers, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

The District Judge in a written opinion has stated the issues involved in this case, as well as his conclusions. We quote his opinion in full:

“This is an expropriation case in which plaintiff seeks to take a part of the property belonging to defendants as shown by the blue print in the record for the purpose of a spur or switch track leading from its line in to the property of the Shreveport Creosoting Company, and bases its right, according to the pleadings, upon the following allegations, to-wit:
‘Petitioner shows that said spur track will, after crossing defendants’ property, enter upon the property of the Shreveport Creosoting Company; that it will serve said Shreveport Creosoting Company, the Lying-Bell Lumber Company and such other shippers as may desire to make use of said spur tracks without discrimination and with equal rights to all who desire to avail themselves of the use of said spur track and will ultimately connect with the Texas & Pacific Railway Company, thus enabling it at this point to interchange cars and traffic with said Texas & Pacific Railway Company.’
“The case has once been to the Supreme Court (166 La. 663, 117 So. 765) on the question as to whether or not the exception filed by the defendants should be passed on by the court, or by the jury, and the exception which raises the question of public necessity for the taking of the property has now been tried and it is this question which is up for decision.
“The exception was tried on affidavits, and numerous objections to portions of the affidavits were made, most of which were to be decided when the case itself was decided. We see no necessity at this time for going into these objections in detail in view of the conclusion which we have reached on the merits, and which conclusion would not be affected either way by the objections.
“An exception of no cause of action • was filed and presented to the court prior to the trial mentioned, and the exception was over-ruled. At that time we were rather of the opinion that the plaintiff had not alleged such a condition as would justify the exercise of the right of eminent domain; that the only piece of track which would belong to the plaintiff would be situated on the property sought to be expropriated, and it' was not plain whether anyone other than the defendants could make any use of said track for the purpose of tieing on another switch track at that point. That the pleadings did not make it plain, whether anyone beyond the property of the Shreveport Creosoting Company would have the right to use such switch track after same entered the private property of the Shreveport Creosoting Company; and it was for the foregoing reasons that we determined to have the exception trial rather than to settle the matter on an exception of no cause of action. We reached this conclusion very largely upon the opinion of the Supreme Court in the case of Kansas City, S. & G. Ry. Co. vs. Louisiana W. R. Co., 116 La. 178, 40 So. 627, 5 L. R. A. (N. S.) 512, 7 Ann. Cas. 831, in which case the Court quoted with approval the following language from a court of a sister state, to-wit:
‘The character of a way, whether it is public or private, is ‘determined by the extent of the right to use it, and not by the extent to which that right is exercised. If all the public have a right to use it, it is a public way, although the number who have occasion to exercise that right is very small. * * * All termini of tracks and switches ■ are more or less beneficial to private parties, but the public character of the use of the tracks is never affected by this.’
“Using the above as a guide, we think there is no necessity for going into any other question in this case than the- character of the proposed spur track after it enters the private property of the Shreveport Creosoting Company.
“On the trial of the case, evidence was sought to be introduced showing a present necessity for said property for the purpose of making the proposed track an interchange track with the Texas & Pacific Railway Company, but this evidence was ruled out as the pleadings did not allege a present necessity for same along that score, but merely alleged that at some time in the future same might be made an interchange track.
“We have been furnished with no authority which would give to any property holder beyond the property of the Shreveport Creosoting Company a right to tie on and use the proposed spur track after it enters the private property of the Shreveport Creosoting Company.
“The affidavit of Mr. Reese, Chief Engineer of the plaintiff Company, offers the only testimony which was adduced on the trial touching the rights of others to use the said proposed track, and in this affidavit all that he testifies to is that the plaintiff Company has no contract with the Shreveport Creosoting Company, but that such is in process of execution, and that in said contract will be inserted a provision authorizing the use of the track on the Shreveport Creosoting Company’s property for the use of or to reach any enterprise or customer that may be necessary who is located on the property adjacent to that of the Shreveport Creosoting Company. Mr. Reese does not pretend to testify that such a contract as that has ever been consummated at the time his affidavit was drawn up, and we have no way of knowing whether such will ever be consummated. Without such a contract we cannot see that anyone would have the right to use this spur track on the private property of the creosoting company, and the conditions set forth in the case quoted from 116 La., do not exist at the present time in the case at bar, and as matters now stand, the purpose of the present expropriation suit is to serve the private purpose of the Shreveport Creosoting Company and the Long-Bell Lumber Company, the latter being in a way an adjunct and co-operating with the Shreveport Creosoting Company. Such being true, we do not think that the plaintiff has any right to expropriate the property of defendants and that the exception of want of public necessity should be sustained, and it is so ordered and plaintiff’s suit dismissed.”

To the above we add ■ that the testimony submitted fails to convince us that any necessity, whatsoever, either public or private, exists for the expropriation of defendants’ property. The lower court was convinced, and so are we, that the present purpose of expropriating the property is to serve the Shreveport Creosoting Company and Long-Bell Lumber Company which, so far as their interests in the spur track are concerned, are practically one and the same.

The proposed spur track will enter the private property of the creosoting company and for the present, at least, will serve only that company. But the spur track can be built so as to serve that concern without crossing defendants’ land.

The case on its merits was submitted on affidavits. We find among them that of Col. Prank E. Estes, who is a member of the American Society of Civil Engineers, and an engineer of over thirty years’ experience, during which time, he stated, he had had occasion to lay out, construct and operate numerous sidings, switches and yards for railroads and other industrial purposes; that he had made an investigation of existing facilities for serving the plant of the Shreveport Creosoting Company and the Long-Bell Lumber Company by the Kansas City, Shreveport & Gulf Railway Company, and had investigated the feasibility of constructing other and additional spur tracks for the service of said plant. We quote the following from his affidavit:

“Affiant further stated that a spur track or switch track could be constructed running off the existing siding parallel to the main line of the plaintiff company and into the said property so as to miss the defendants’ corner by 7 feet, using the same curve as shown by plaintiff’s plat attached to its petition, and such a line if continued into such property for a like distance as the line shown upon 'plaintiff’s plat, would be only 35 feet distant from the track as shown by said plaintiff’s plat. The spur track here ' referred to is designated upon the attached plat by the lines marked in blue. Affiant further stated that there are' no existing buildings or construction at present upon the property to be served which would interfere with the construction of such a track. Further that the construction of such a track so as to miss defendants’ corner by 7 feet could be constructed as cheaply and will serve the property as well insofar as the railroad is concerned, as the proposed track contended for by plaintiff.”

After reading the affidavit of Col. Estes, Mr. A. N. Reese, chief engineer of the plaintiff company, submitted an additional affidavit in which he said that such a spur as described by Col. Estes might be constructed, as stated by him, but that same would not be good railroading for the reason that it would pass within seven feet of the corner of defendants’ property. Whereas, in ordelr to have sufficient clearance space, there should be at least nine feet between said railroad or spur track and the adjacent property. Further explaining, he said that it is customary to assume that property adjacent to such spur track will in the course of time be utilized by building thereon, and that assuming that defendants might utilize their property by building a house or structure on the corner thereof that such building would be so close to the switch track as to render same dangerous to the employees, such as switchmen, etc., who make it a habit to ride on the sides of cars, and that said employees would be in danger of being knocked or brushed off by the structure if within seven feet of the railroad track. There is, therefore, practically no difference between the testimony of Mr. Reese and that of Col. Estes, the latter apparently being of the opinion that seven feet was sufficient clearance, whereas the former was of the opinion that there should be at least nine feet clearance. We have before ufe the map made by Mr. Reese and that made by Col. Estes, and we can imagine 'no reason why the spur track could not be moved over two additional feet in order to conform to Mr. Reese’s opinion as to where it should be constructed. If that could be done, it would seem that the construction would conform to Mr. Reese’s ideas. Mr. Reese states in his affidavit that “a spur track constructed as outlined by the affidavit of Mr. Estes would not and could not efficiently reach the property of the Shreveport Creosoting Company.” He further states, “of course, a spur track can be constructed at several points along its right of way, which would reach the property of the Shreveport Creosoting Company, but would not reach it in such way as to serve it efficiently and in accordance with the way that the Shreveport Creosoting Company has its plant laid out, and in course of construction, said proposed spur or switch track as outlined by Mr. Estes, would not be satisfactory and would not serve the Shreveport Creosoting Company in an efficient manner.” Prom Mr. Reese’s affidavit as a whole, we are impressed that he concedes that, while the plan suggested by Col. Estes is altogether feasible, except that he thinks that it should be constructed two feet farther away from the corner of defendants’ property, which, of course, could be done, yet he thinks that to construct it in accordance with his plan, which would necessitate the expropriation of defendants’ property, would be more convenient and more satisfactory to the Shreveport Creosoting Company. He says that the Shreveport Creosoting Company would have to rearrange the outlay of its property to some extent. We have no doubt that it would be more convenient for the creosoting company to have the spur track constructed over defendants’ property, as contemplated by plaintiff. But, defendants are not called upon to yield possession of their private property to suit the mere convenience of others. The testimony shows that plaintiff can construct a spur track leading from its right of way into the creosoting company’s property so as to serve it without crossing defendants’ land, and at no additional expense. While such track might be not altogether as convenient for the creosoting company as the one contemplated, it will nevertheless meet the ends sought to be obtained.

Public service corporations are by statute permitted to expropriate private property for spur tracks under the law of eminent domain. But that power can be exercised only in cases where a necessity for the taking thereof exists.

We hold, as did the District Court, that it is not shown that any necessity exists for the proposed taking of defendants’ property.

Under this view, it becomes unnecessary to pass upon the question presented ■ by counsel as to whether a railroad company may expropriate private property for a spur track to serve only one enterprise. In this connection, however, the following from “Dillon on Municipal Corporations,” quoted by the Court in Hoggart vs. V. S. & P. Railroad Co., 34 La. Ann. 624, is pertinent:

“Since the power to condemn private property against the will of the owner is a stringent and extraordinary one, based upon public necessity as an urgent public policy, the rule requiring the power to be strictly construed, and the prescribed mode for its exercise strictly followed, is a just one, and should, within all reasonable limits, be inflexibly adhered to and applied.”

And also the following from Kansas City, Shreveport & Gulf Railway Company vs. Meyer, 166 La. 663, 117 So. 765:

“On the contrary, the statutes provide that expropriation for switch or spur tracks is to be governed by the general expropriation laws of the state. Those laws are to be found in the Civil Code, under the heading ‘Of the Compulsory Transfer of Property,’ the very first article '(2626) of which impliedly, if not expressly, limits the obligation of yielding by the owner of his property to the community for public use, to cases where the property is needed for such general and public use, and, where such owner refuses, he may, by the authority of the law, be divested of his property to the extent needed for the public use.”

The judgment appealed from is correct; and it is accordingly affirmed, with costs in both Courts.


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    No. 3498
    Second Circuit
    ABRAHAM v. VERCHER ET AL.
    (April 5, 1929. Opinion and Decree.)
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellant.
    Rusca and Cunningham, of Natchitoches, attorneys for defendants, appellees.
   ON MOTION TO DISMISS THE APPEAL.

ODOM, J.

Plaintiff brought suit against Herbert Vercher alleging that she had leased to him for the year 1928, certain real estate to be cultivated on shares, one-fourth of the crop to be delivered to plaintiff as rent on the land; and further alleging that she sold him goods and supplies with which to make the crop.

In Article 3 of her petition, plaintiff alleged that the said Herbert Vercher and Albert Vercher, his son, had entered into a fraudulent eollusion to deprive her of her part of the crop produced, and, In furtherance thereof, had removed from the place one bale of cotton and had sold it, which bale of cotton was worth approximately $72.00, one-fourth of which belonged to plaintiff. She asked for judgment against Albert Vercher for the amount of the supplies for the year, and recognizing her as the owner of one-fourth of the bale of cotton sold by Herbert and Albert Vercher, and one-fourth of all the other crops produced on tlie place; and judgment against Herbert and Albert Vercher in solido for $267.23. Upon what theory plaintiff asked for a monied judgment against Albert Vercher does not appear from the petition.

Herbert Vercher made no appearance and, while the case was defaulted as to him, it does not appear from the record that said default was made final; but the defendant, Albert Vercher, filed answer in which he denied that the bale of cotton which he had removed and sold was produced on plaintiff’s premises, and especially alleged that said cotton was his property. He prayed that plaintiff’s demands as to him be rejected and that the writs of provisional seizure and sequestration under which said bale of cotton was seized be dissolved; and for judgment against the seizing creditor for $45.00 damages.

The suit against Albert Vercher went to trial and resulted in a judgment rejecting plaintiff’s demands as to him, and condemning plaintiff to pay him damages in the sum of $20.00. Prom this judgment, plaintiff appealed, and appellee now moves that the appeal be dismissed on the ground that the amount involved is below the minimum jurisdiction of this court.

We think the motion to dismiss is well founded. By reference to the minutes of the court, it appears that plaintiff took a voluntary non-suit for the monied demand against Albert Vercher, except as to the value of the one bale of cotton which she alleged he had disposed of. This non-suit seems to have been entered after the court had rejected plaintiff’s demands against Albert Vercher. There was, therefore, no judgment to appeal from, except that which condemned plaintiff to pay defendant the sum of $20.00. According to plaintiff’s allegations, the defendant, Albert Vercher, had no connection with any of the cotton, except one bale which was removed, and she claimed only a one-fourth interest therein, which interest was valued by petitioner at $18.00. Therefore, if it be said that a contest now exists as to the one-fourth interest in the cotton, the amount in dispute is still far below our minimum jurisdiction. As already stated, plaintiff’s suit against Herbert Vercher is not before us.

Por the reasons assigned, the appeal is dismissed at plaintiff’s costs.


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    No. 3188
    Second Circuit
    FRANKLIN ET AL. v. LOUISIANA & ARKANSAS RY. CO.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)

      L. K. and R. D. Watkins, of Minden, attorneys for plaintiffs, appellants.
    White, Holloman and White, of Alexandria, and A. L. Burford, of Texarkana, Ark., attorneys for defendant, appellee.
   ODOM, J.

This is a damage suit brought by Mrs. Canary Franklin, widow, for herself individually, and as tutrix of her minor child, Bernice Franklin, for the killing of her husband and father of her child by one of defendant’s trains at a crossing about one mile north of Sarepta, in Webster Parish, Louisiana.

The acts of negligence which plaintiffs charge against defendant are that the train was being operated at an excessive rate of speed, without any warning signals; and that the train crew saw or could have seen the automobile as it Approached the track or when it was in close proximity thereto in ample time to avoid the accident, if proper and usual precautions had been observed.

She further alleged that the automobile in which the deceased was riding was stopped and that the driver looked and listened before going on the track; and, in the alternative, that if it should be held that the driver of the car was negligent, his negligence should not be imputed to her deceased husband, who was a guest in the car.

Defendant denied every act of negligence charged and set up that the accident was due solely to the fault and negligence of the driver of the automobile. The District Judge found for defendant, rejected plaintiff’s demands, and she has appealed.

OPINION.

As a rule in cases of this kind, the testimony on the pertinent issues is conflicting. But this case is an exception to the rule. Counsel for plaintiff, in their efforts to make out their case, had not the assistance of such witnesses as are usually relied upon to make out cases of this kind for the reason that not only plaintiff’s husband, but the other two occupants of the car as well, were killed at the crossing.

On a misty, rainy day in January, 1927, plaintiff’s husband and two other men, named King, were going home from their work in a Ford touring car, with all the curtains up, except the front curtain on the driver’s side. Young King was driving, with his father by his side, and plaintiff’s husband occupied the rear seat. They were proceeding north along a public highway, on the east side of the railroad track, which highway parallels the track to a point approximately one mile north of the station at Sarepta, where it turns to the left, or west, and crosses. At the same time, one of defendant’s passenger trains was coming south. The automobile and the train reached the crossing at the same time, with the result that the car was wrecked, and the occupants all killed.

It is very probable, we think, that none of the occupants of the car saw the train. If the driver of the automobile did not see the train approaching, it was because he did not look, for the testimony makes it clear that if he had looked, he could have seen. If he looked and saw the train approaching and tried to run across the track ahead of it, he was worse than negligent; he was reckless. The automobile was moving at a speed of something like 25 or 30 miles an hour, and it is asserted by many witnesses, and denied by none, that the driver did not even slacken his speed, much less stop, before going upon the crossing.

But his negligence cannot be imputed to plaintiff’s husband who was on the back seat and was not responsible for the operation of the car, and there is no room for holding that he himself was guilty of any negligence in failing to warn or caution the driver.

Churchill vs. T. & P. Ry. Company, 151 La. 726, 92 So. 314; Daull vs. New Orleans Ry. & Light Company, 147 La. 1012, 86 So. 477; Peterson vs. New Orleans Ry. & Light Company, 142 La. 835, 77 So. 647; Vitale vs. Checker Cab Company, Inc., 166 La. 527, 117 So. 579 (decided May 7, 1928).

We must, therefore, determine whether there was negligence on the part of the defendant. If there was, plaintiff should recover, otherwise, she can not.

The crossing is not in a village, town or city, but in the open country about a mile north of the town of Sarepta. Some of the witnesses mention two or three residences nearby, and it is said that there was considerable travel on the public highway. But there is no testimony tending to show that the crossing is in a thickly settled, populous community. It is an ordinary crossing. There is no law or regulation requiring trains to stop or slow down, or requiring those in charge of them to exercise extraordinary care or vigilence at such crossings. All that is required is that reasonable or ordinary care and caution be observed.

“At ordinary crossings, it is the duty of the railroad company to keep a lookout, to run at a reasonable rate of speed and to give timely warning of the approach of engines or trains.” 22 R. C. L. 989.

Under Act 12 of 1924, page 16, those in charge of trains

“shall cause the bell to be rung or the whistle to be blown at a distance at least 300 yards from the place where the railroad crosses over any highway or municipal street, and the bell shall be kept ringing or the whistle shall be kept. blowing continuously until said crossing is passed.”

Now, the undisputed facts are that both the fireman and the engineer on this occasion were looking ahead, watching the track and the right-of-way; that this was a passenger train running 30 or 35 miles an hour, which was not excessive; and that the whistle was blown twice before reaching the crossing, once when the train was 1300 feet, and again, when it was 600 feet from the crossing; and that the bell was ringing continuously. The conclusion that the whistle was blown and the bell rung is not based solely upon the testimony of the train crew. Mrs. Tyler, a disinterested witness, was in an automobile with some friends, traveling south on the highway in the direction in which the train was 'going. She says that she and the other occupants of the car all heard the whistle about the time they passed the church, which is more than 1300 feet from the crossing, and that immediately her friend, Mrs. Pool, remarked that the train was coming and told her brother, who was driving the car, that there was a crossing ahead and cautioned him to be careful. She says the bell was ringing. Mrs. Knight, who was also in the car, tells the same story, except that she did not notice the bell. Mrs. Pool was not called because she was sick at the time and her brother was with her in the sanitarium. Louis Neeley was a passenger on the train. He says the whistle blew and he got up from his seat and remarked to a friend that he must soon get off.

The automobile went upon the crossing from the fireman’s side. He says he saw the car when it was 60 or 70 feet from the crossing, and that the train was about the same distance. It is manifest that a collision was inevitable unless the automobile stopped, for the train could not be stopped or even checked in time to avert it. If it was running 30 miles an hour, it was moving 44 feet per second, and if 35 miles, 51 1-3 feet per second. The fireman says that the moment he saw that the car would not stop, the brakes were applied. We must assume that a small fraction of time elapsed between the moment he determined to act and when he got his hand on the brake lever and pulled it so as to set them, and some small fraction of a second for the brakes to take effect after the air was applied. So that very likely the brakes did not take effect until the crossing was reached.

But counsel argue that by using diligence, the fireman could have seen the car before it got so close, and that it was his duty to watch the highway for approaching cars and to prepare in advance for an emergency which might arise in case the car failed to check its speed or stop.

There is no law or rule which requires those in charge of trains to watch the highways in rural and sparsely populated districts for approaching vehicles or pedestrians, and to anticipate that they will not use precautions for their own safety and protection. But the rule is the other way. The “stop, look and listen” rule is so firmly established in the jurisprudence of this country that it has now become a “standard of conduct.” The train has the right of way. When a motorist or pedestrian approaches a railroad track,

“he knows he must stop for the train, not the train stop for him.” Baltimore & Ohio R. Co. vs. Dora Goodman, Adm’x (C. C. A.) 10 Fed. 2d Ed., 58.

This being the rule, or “standard of conduct,” it follows necessarily that the train crew has a right to assume that those approaching railroad crossings will observe the rules.

“Even where a person is seen approaching the crossing, the Company owes him the same duty that it owes to the public in general,—that is, reasonable diligence and. care to avoid, injury. In such cases the engineer is not bound to stop the train; he may act on the supposition that the traveler will stop before reaching the the track.” 22 R. C. L„ Sec. 218 p. 991.

In Nelson et al. vs. Texas & Pacific Railway Co., 140 La. 676, 73 So. 769, the court held, to quote the syllabus:

“Railroad trainmen have a right to assume that a person standing on or near the track can see and hear, and will get out of the way on receiving the usual signal warnings.” Wells vs. Morgan’s La. & Texas Ry. & S. S. Co., 147 La. 58, 84 So. 493.

While the train crew may assume that one approaching the track will observe the ordinary rules, of caution, yet, if it is apparent, or if .with the exercise of reasonable diligence it should be apparent that such person is unaware of danger and will not stop, it becomes their duty to use such precautions to stop or check the train in order to avert the accident, as are consistent with the safety of the train and the passengers. Otherwise, the company will be liable under the last clear chance doctrine. Counsel cite the cases of:

Jones vs. Mackay Tel. Cable Co. et al., 137 La. 121, 68 So. 379; Blackburn vs. Louisiana Ry. & Nav. Co., 144 La. 520, 80 So. 708; Jones vs. Chicago, Rock Island & P. R. Co., 4 La. App. 457 (affirmed by Supreme Court in 162 La. 690, 111 So. 62). But the rule announced in those cases finds no application here.

In the first of the above cited cases, it was admitted that the handcar on the track could have been seen from a distance of 4000 feet. In the second cáse, the deceased was drunk on the track and was negligent in going there. But the court found that if the engine had been equipped with proper headlights, the crew could have seen him, if they had exercised due diligence, in time to save him. In each case the company was held liable under -the last clear chance doctrine.

In the Jones vs. Chicago, Rock Island, etc., case, the deceased was lying on the track, drunk and motionless, on the outskirts of the City of Ruston, where the engineer knew that many pedestrians used the track as a footpath. The engineer saw the object on the track in time to stop before reaching it, but did not know what it was until 60 feet from it, and then it was too late to stop; The court held that the engineer, under the circumstances, should have applied the brakes as soon as he saw the object.

There is no room for the application of the last clear chance doctrine in the case at bar, because, after seeing the car approaching the crossing 60 feet away, it was not then physically possible to stop or to even check the speed of the train in time to avert the collision.

Counsel argue that this was a dangerous crossing and that, therefore, the train crew should have taken extra precautions, for

“The precautions to be adopted and the steps to be taken in aid of safety increase as the danger of accident and injury increases.” Jones vs. Chicago, Rock Island & P. R. Co., 4 La. App. 457 (464).

But this is not a dangerous crossing. It is in the country, and the view of the track is not obstructed, except by some trees, the nearest of which is 62 feet from the track. There is a curve in the track, but that is over 900 feet above the crossing.

The train was going 30 to 35 miles an hour. As stated, this is not excessive. In Davis vs. Alexandria & Western Ry. Co., 152 La. 898, 94 So. 436; it was held that in open country, outside of city limits, any speed is legitimate for a railroad train which is consistent with the safety of such train.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.