author: Nicholls, O. J. Nicholls, O. J.

text:
    No. 13,801.
    George W. Lampkin vs. J. H. McCormick, Receiver of Vicksburg, Shreveport and Pacific Railroad Company.
    Syllabus.
    1. Railroad corporations backing their trains through danger points in the streets of a city must use proper care and take proper precautions to safeguard citizens upon them. If they entirely fail to do this, they assume the risk of injury to individuals even if the injury received be due to some extent to the latter’s imprudence and forgetfulness. They can not fail en tirely in their duty and argue that had the duty been performed it would have been in the particular case unavailing. The results should have been put to the test by actual trial made at the time.
    2. A street of a city does not cease to be such because left unimproved and' almost its entire width, with the consent of the Council, is occupied by the tracks of railroad corporations. The open spaces between the railroad tracks are public places and persons occupying them are neither trespassers nor licensees.
    3. Where trainmen in control of a railroad train, back it down opposite a dan ger point in the street of a city, without precautions of any kind to signify its approach or to warn or protect citizens, at the precise moment that a passenger train is moving in the other direction on a parallel track, and in so doing strikes and kills a person occupying the open space between the two lines of track, the company is responsible for the injury, although the person injured may have contributed to some extent, by imprudently backiug in a moment of forgetfulness into the open space taken up by the overlapping of cars, outside the rails.
    APPEAL from, the First Judicial District, Parish of Oaddo — Land, J.

      Suiherlin & Hall, for Plaintiff, Appellant.

      Wise & Herndon, for Defendant, Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

Statement of ti-ie Case.

Nicholls, O. J.

In the petition filed by the plaintiffs they averred that J. H. McCormick in his capacity as receiver of the Vicksburg, Shreveport and Pacific Railroad Company, was indebted to them in the sum of ten thousand and thirty-eight dollars and ten cents, for which they prayed judgment.

They alleged that said corporation with all its property was placed by judicial decree of the Circuit Court of the United States for the Fifth Circuit and the Western District of Louisiana, at the said city of Shreveport, rendered on the 21st day of April, A. D. 1900, in the hands of said J. IT. McCormick as receiver, with the authority and directions to him to take possession of all the property of said corporation and operate and cause to be operated the said line of railroad as it had theretofore been operated by the said corporation; and that in the operation of said railroad by said receiver under his said appointment in said receivership, through his servants and employees, their son, Norman A. Lampkin, was struck, knocked down and run over, and thereby injured and killed by a moving train of freight cars of said railroad, in said city of Shreveport, on or about the 26th day of June, A. D. 1900, by reason of the torts, faults, wrongs, carelessness, omissions, and gross negligence of the servants and employees of said receiver in charge of and operating the said train of'freight cars; and that said accident happened on Cotton street in said city between Commerce cr Levee and Market streets.

They entered into a minute description of the locality where the accident occurred and the circumstances connected with the same.

The defendant answered, pleading the general denial and averring contributory negligence on the part of the plaintiff.

The jury returned a verdict in favor 'of the defendant and judgment was rendered accordingly.

Plaintiff appealed.

Opinion.

The evidence shows that the railroad of defendant company enters the city of Shreveport from the east over a bridge spanning the Red river. The west end of the bridge rests upon the edge of Levee or Commerce streets, which runs along the river front, between the city and the river. The bridge is opposite to the mouth of Cotton street and the tracks of defendant’s road run from the Red river bridge, across Commerce street and up Cotton street, for several blocks; its freight depot being on the side of Cotton street between Commerce street and Spring street, the next cross street back; the passenger depot being several blocks further up in the city. Spring street crosses Cotton street on a high overhead bridge, supported by wooden posts and sills resting upon the ground. The bridge has several spans through which there are open spaces and railroad tracks.

The Shreveport and Red River Valley Railroad also approaches the city over the same railroad bridge, over the Red river, and uses the tracks of the defendant company, back as far as Spring street. At that point, the trains are stopped, switched off and backed down to its own depot on Red river, just below the railroad bridge.

There are at Spring street two or three tracks of the defendant company, which run parallel to each other, the main track being in the center, and the side tracks being alongside with intervening spaces. The evidence shows that many persons go to Spring street when the passenger trains of the defendant company and those of the Red River Valley Railroad reach that point, in order to see or meet passengers ar to board the trains, and that passengers frequently leave the trains at that point to go into* the city. The point in question is not one provided by either company for the receiving or landing of their passengers ; there are no platforms placed there nor other arrangements made for the convenience of passengers. The companies are much opposed to their passengers getting1 on or getting off at that point and have tried, but in vain, to prevent it.

On the morniiig of June 26, 1900, a young colored man named Norman Lampkin, living with his parents in Shreveport, left his home and vent down to the overhead bridge at the corner of Cotton and Spring streets and sat down there. As the passenger train of the Red River Valley road was approaching Spring street, on the main track of the defendant company, he rose from his seat and walked to meet it, when it should make its usual stop. What his object or purpose was in going to the train the record does not disclose. He was not an employe of either company, nor were there any contractual relations between them.

As the Red River Valley train was reaching its switching point at the corner of Spring and Cotton streets, from the Red river railroad bridge,'a freight train of the defendánt came backing down opposite to it, moving east towards the railroad bridge. The sides of the cars of each company projected on each side about two and a half feet beyond the rails on the tracks. As the freight train passed down it struck and immediately killed Lampkin, who was then in the space between the two tracks which the trains occupied, and so near to the rail of the sidetrack of the defendant company as to be reached by a projecting corner of one of the cars on that track. The freight train consisted of about sixteen or eighteen cars. Its engine was at the end of the train farthest from the direction in which the train was being moved. The train was moving slowly, at a not greater rate of speed than two or two and a half miles per hour. There was no person on the car at the end of the freight train to keep an outlook upon the track ahead, nor upon the spaces between the tracks to give warning of the approach of the train; nor was there any person stationed for the same purposes at the point where persons wore likely to be found, in the spaces between the tracks, when the passenger trains came in or out. A brakeman on the top of the third car from the end of the freight train, was the employe of the defendant nearest to the scene of the accident.

Defendant claims that there is no such street as Cotton street in the city of Shreveport; that what is called Cotton street is an open space appropriated for the tracks of its company by the City Council; that there are no sidewalks upon the so-called street, and no paths or ways for either footmen or vehicles; that it is occupied by a network of railroad tracks; that there is no indication to any one of the locality being other than a railroad track yard; that there is no place for the travel of either vehicles or foot passengers along the street and it is in fact not traveled.

Cotton street, so called, is in fact during a part of its length almost exclusively used for railroad purposes — tracks with spaces between the tracks covering almost the whole width of the streets, but the fact remains that from a legal standpoint the tracks are laid in: the public street of the city, and that from a legal standpoint the general public have a legal right of passing along and over the street.

The right of occupation granted to the defendant company by the City Council, along the street, was granted subject to, and was received subject to the rights of the public, along and over the same, but the rights and obligations of the latter were modified to some extent by the grant to the railroad company. We can not deal with the accident under inquiry in this case, from the standpoint of Lampkin’s having occupied when he was killed the position of either a trespasser or a licensee. Defendant introduced a number of witnesses to prove the fact that the getting on and off the train of passengers at or about the Spring street bridge was in opposition to the wishes of the railroad companies, and contrary to the instructions given to their conductors, but that fact is an irrelevant one in this particular case, where the party who was killed had not been a passenger on their trains, nor was he attempting to become such. The important question is whether persons were accustomed, rightly or wrongfully as a fact, to congregate at this particular place and by so doing, made it a poiut of danger to life and limb. We think the evidence establishes that it was a danger point and that the parties operating trains had every reason to believe and know that it was such, and that they were called upon to govern their actions accordingly.

Defendant urges that it would be unreasonably onerous to force it to place flagmen or policemen on the streets, or to place a brakeman at the rear end of each backing car or train, as it is constantly making up or breaking trains and moving them at all hours in different directions; that there is no conventional or statute requirement upon it to do so.

It may be true that the city, in granting defendant its right to lay its track upon the street, did hot impose upon it these obligations and that they were not imposed on it by general ordinance or statute, but there are certain obligations upon railroad corporations which exist independently of convention or ordinance or statute. There is a duty imposed upon every one, whether natural persons or artificial persons, to avoid by proper care doing injury to others through their fault. (C. C. 666-2315.)

In Hamilton vs. Railroad Co., 42 Annual, 824, this court said: “that in running a. train backward through streets, the engineer should see that the brakeman is at his post and keep a lookout on the track to warn in case of danger. It is the duty of the fireman to ring the bell continually while passing through a town or village; that it would not give its sanction to the least absence of an employee of a railroad, when a serious accident happens while passing through á street of a town; that the danger to human life was too great, and employees to be relieved from all resimnsibility must be at their posts.” We have on several occasions repeated this same caution.

We have declared that the greater the danger to the public the greater should be the vigilance exercised and precautions taken to avoid it. If railroad corporations passing through the streets of a city fail to exercise any vigilance and to take any precautions by reason of the pecuniary expense which this would entail, they must be made to know that they assume the risks of resulting accidents and must take^the legal consequences of their balancing the chances. Defendant urges in this particular case, that even had there been a brakeman upon the rear end of the backing train at the time of the accident, the deceased placed himself in a position of danger so shortly before hd was struck and killed, that the brakeman could not have possibly avoided the accident by anything he could have done. That proposition is by no means established as a fact, and it a dangerous course for the companies to pursue to fail in their duty, and to then argue that no good would have been accomplished had the duty been fulfilled. The proper course is to perform the duty, leaving results to be actually tested by the facts of each special case.

The evidence does not show that there exists on Cotton street any point specially, dangerous other than this particular place, at or near the Spring street bridge, and it would have been no very onerous obligation upon the defendant to have stationed a man or men at that place, to secure the public safety. It may be true that an accident might happen anyhow, but none the less the defendant should have taken precautions to avoid it, and to minimize the danger, which would serve them in good stead. The record does not show how many persons were at this particular point when the accident occurred.

This case resembles in a number of its features that of Downing vs. The Southern Pacific Railroad Company recently decided by this court. In both eases there was the killing of a man for want of proper precaution by the backing down of a freight train. In both cases the freight train moved opposite a danger point in the streets of a town simultaneously with the passing of a passenger train upon a parallel track, when the attention of persons standing along or between the tracks would be likely to be attracted by the passenger train, and when the noises from the passenger train would be likely to conceal the approach of the freight train. In both eases there was a failure on the part of the parties operating the freight to exercise proper care and take proper precautions while moving it backward upon the track, to give notice of its approach and to warn parties standing on or near its tracks of their danger.

In the Downing case there was no evidence before the court showing the circumstances under which the railroad tracks had been placed in the street and whether the title of the land upon which the tracks were laid, was in the railroad company or in the public, and therefore whether the party killed was or was not a trespasser' or a licensee, but in the present case the deceased was' unquestionably upon a public street and not on defendant’s track when killed and he was neithei’ a trespasser nor a licensee. In the Downing ease the deceased was standing on or near a practically abandoned spur track on which he had no reason to apprehend the approach of a moving train, while the parties operating the freight train had reason on their part to believe that there would be danger, for parties standing where the deceased was standing, while in the present ease both the deceased and the parties in charge of the freight train must have known or be presumed to have seen and known of the dangerous character of the situation and each and both held to increased care and vigilance.

The defendant insists that the deceased was backing towards the freight train and was still moving when he was struck and killed, and if not actually moving he had just come to a halt; that while the space between the tracks was sufficient for safety, yet the space over which he backed was short and they could not! anticipate he would move into danger. It sought to establish that deceased was hot struck by the first, but by the second or third car of the train, but this contention it did not sustain.

There is, as usual, a conflict of evidence as to the circumstances under which the deceased came to his death. Mercer, a farmer, living in Bossier parish (plaintiff’s witness),-testified that he was a passenger that day on the incoming passenger train of the Red River Valley train, and was sitting and looking out of the window, on the side of the car towards where the deceased was killed, the side next to the defendant company’s switch (sidetrack) ; he was about a ear’s length from the deceased when he was struck; he saw him just as the train struck him; the first he noticed, the boy seemed to be standing with his back to the defendant’s train and he was struck; saw him just about the moment that the train struck him; he was standing with his back to the track of the defendant company, which was parallel to that on which witness was and parallel with main line of the defendant company. He seemed to be looking at the Valley train as it ran in on the main line. He had his face towards the Valley train and his back was towards the track the other train was on. He saw the collision; he might have noticed the hoy before, but did not pay any attention to him; the train seemed to strike him on his side. The defendant’s train — a freight train — was backing towards the east,towards the railroad bridge over Red river,the Valley train was moving to the west — going into the city. The Valley train was moving very slowly, it had nearly come to a stop. Two brakemen came up along the ground by the side of the track, after the deceased was struck, but not before; there might have been some one on top of the car, but witness did not see any one; he was not paying any attention to it until the man was struck; he did not notice whether the train on which he was, was making a noise at the time; the only noise it could have made at the speed it was going, was the escaping of steam.

The defendant’s train 'was moving very slowly; it was nearly at a stop and did stop in about a car’s length; it wás a long freight train; he could not tell whether there was a ringing of the bell on defendant’s train: There'are freight and switch engines and trains moving in the yard nearly all the time; the yard is filled up with tracks; witness has seen a policeman at the point since the accident; was told he had been placed there to keep people from getting off the train.

Tom Pattison, a drayman in the employ of Dreyfous & Co. (plaintiff’s witness), was at the defendant company’s track right below the Spring street bridge when the deceased, Norman. Lampkin, was killed; he was sitting on. his wagon which was facing the Bed river; he was looking at the Valley train. The boy was standing there looking at the Valley train coming in; he was standing a little too close to the Valley train and so he backed back, and just at that time, the defendant’s train was coming, one car under the bridge, and the boy backed a little too far and this train knocked him down. He backed until he was near enough for the front advancing car to strike him and pass between witness and the boy; the latter had his face towards the Valley train at the time this train struck him, his back being towards the one that struck him. The backing car was about twenty feet from the car when he stepped back; there was no one at all on the advancing front ear— which was the one that struck him; witness heard no one call out to him or give him warning to get out of the way; never heard any one say anything to him and never saw anyone there; did not hear the man make an outcry; witness made a mark on the map introduced, in evidence showing the! place he (the witness) was at when the accident occurred.

The following questions and answers were asked and answered by this witness on cross-examination:

Q. — If this man who was struck by the train had not stepped back just as he did, this freight train would not have struck him, would it? A. — No, sir; I reckon not.
Q. — It was liis stepping back then that put him in the way of that freight train which hit him? A. — Yes, I reckon so.
■ Q. — In other words if he had stayed where he was before stepping back, he would not have been struck — but would have been clear of both trains? A. — I do not know, sir.
Q.- — Was there space in there sufficient for persons to stand with safety between the two trains? A.- — Yes, sir.

Skirring, the engineer on the Red River Valley train, testified that as the train on which he was approached the bridge on Spring street, the deceased was sitting near the end of the sill the uprights stand on, under the bridge, talking to another man. They both got up and the man killed was ahead of the other and stepped right in front of his (witness’) train facing it — with his back to the approaching train of the defendant company, and went sideways towards that track. There were two coaches on witness’ train that morning and his engine was right under the bridge and stopped.

When the engine passed him the man was all right, walking down the track (open space?) towards the sidetrack of the defendant company. As the train approached the head car hit him on the shoulder and knocked him down. There was plenty space enough between the two tracks for him to have been safe if he had not gone too fax; just before he was struck the man was clear of the car; while the train was still moving he stepped in the way and it struck him; he had his back to that train and was looking in the direction of the 'Valley train; just before he was struck he was entirely clear of the defendant’s train; he was not on the track at all — he was between the two tracks and entirely clear of the tracks until the defendant’s train got within six feet of him he supposed and he was still going sideways stepping toward that sidetrack, getting further away and walking into the defendant’s track. He was clear of the track until the train got within six feet of him and it was moving towards him all the time, and while the train was moving and he was going on to the defendant’s track, they could not have stopped it.

It would have been impossible for them to have done so; they could not have done more than they did; when the train was moving the trainmen could not have stopped it in time to have prevented hitting him if there had been one hundred men on the train. Trains were backing in there all the time; when the man was struck he was looking up towards the Red River Valley train; he was kind of walking sideways. The engine was under the) bridge, when the accident-occurred; he had walked down some little distance towards the river;he was -about middle ways of the front coach of the valley train; be was about twenty-five feet from the engine. .Both trains were making a noise at the time. Freight cars in particular make a noise when in motion.

Plaintiff’s counsel refer the court in support of their claim, not only to the case of Hamilton heretofore noted, but to that of Gurley, 40 Ann. 810; Peyton vs. Texas & Pacific Railroad Co., 41 Ann. 861; Conway vs. The Now Orleans City and Lake Railroad Co., 51 Ann. 146; Banner vs. Shreveport City Railroad Co., 47 Ann. 1218; Sherman & Redfield on Negligence, Vol. 2, Secs. 471-484; 16 Hunn. 415; 76 Hunn. 29; 58 Ann. 672; 95 Mo. 232; 16 Md. App. 548.

In the Gurley case this court declared that a railroad company running and operating its road through the streets of a populous'city, is bound to observe extraordinary precautions for the safety of the public, particularly at street crossings.

We are of the opinion that the defendant company was guilty of Heglj. gence in backing the freight train down its track, past the point in question, under the circumstances disclosed by the testimony in this record, without having provided and taken precautions to notify parties who' might be standing or walking there or along on its track, of its approach and warn them of their danger.

We have next to ascertain whether the plaintiff’s action or inaction m the premises, barred the right of recovery.

Plaintiff contends, that even if there was contributory negligence on the part of the party injured, recovery will not be defeated if there has been a plain disregard of that ordinary care on the part of defendant, which if exerted would have averted the accident, causing the injuries for which damages are sought, and he cites in support of this position, Kramer vs. Railroad Co., 51 Ann. 1693; Rice vs. Railroad Co., 51 Ann. 108; Maguire vs. Railroad Co., 46 Ann. 1543; Nelson vs. Crescent City Railroad Co., 49 Ann. 491; 139 U. S. 558; 144 U. S. 419; Conway vs. The New Orleans City & Lake Railroad Co., 51 Ann. 146.

In Herlisch vs. Railroad Co., 44 Ann. 280, this court declared that on approaching a street crossing of a railroad track in a city, it is the duty of a traveler to exercise his senses of sight and hearing and look and listen for an approaching train. That his failure so to do is negligence which in case of collision will prevent his recovery of damages for injuries received. (In the consideration of the case it will be observed that the plaintiff when struck by one of defendant’s engines, was on defendant’s track which was laid upon its private property.) In the course of its opinion t'hij court said it was satisfied that defendant’s employees were neglectful of their duties under the general principles of law, as well as under the ordinances of the city, in reference to keeping a flagman at the street crossing; the exhibition of a red light, etc., and that the evidence rendered it exceedingly doubtful that a bell was rung or a whistle sounded; that taking it all in all, the evidence made out a ease of negligence on the part of the company. That they were evidently unmindful of the rights of pedestrians who had equal rights to use this crossing. The court was of opinion, however, that the plaintiff was himself guilty of negligence which directly caused or contributed to the accident by which his injuries were inflicted, and declared that the rule was a fair and reasonable one which required of travelers who resort to thoroughfares of a city, over which railroads have a right of way, to exercise the greatest possible care to avoid collisions with their trains; that ordinarily the fact that the train neglected to make statutory and customary warnings, did not relieve a person approaching an open crossing from the duty of looking out on approaching the road.

The court quoted approvingly an author who summarizing the duties of railroad companies and travelers respectively, in respect to public crossings at the intersection of public streets, said: “At the place of intersection there are concurrent rights. Neither the traveler on the common highway nor the railroad company has an exclusive right of passage. Even on a common road travelers must look out for the approach of other vehicles, and this is the more necessary at a railroad crossing, because movement on such a road is more speedy, and because the consequences of such a collision are usually disastrous. Precaution ' — looking out for dangers — is therefore a duty. (Thompson on Negligence, p. 403, Railroad Co. vs. Hellman, 30 Pa. St. 464.)

In Conway vs. The New Orleans City & Lake Railroad Company, 51 Ann. 146, this court was of opinion that there was no proper care on the part of the employee in charge of defendant’s electric car; that such care must be exercised at dangerous places on a railway to avoid inflicting injury, as the proper manning of a car requires. The plaintiff, in that case, in order to board an electric car whose stopping place was on its track in the neutral ground on Canal street, between Baronne and Carondelet, walked to this stopping place from the Baronne street crossing along the open space on the neutral ground between the track of the defendant company and a parallel track of the same company. It was. All Saints’ Day, and cars were constantly passing on this parallel trad;:. The tracks were so close together that a person standing between the two when two cars passed each other, was almost certain to be injured; The plaintiff was struck when in the act of getting into his car, by the overlapping side of a car passing at that time, on the other track and coming up behind him. Plaintiff, before leaving the Baronne street crossing, had looked to see whether there was a ear coming up on the other track, but did not look back after he had once started between the tracks on the neutral ground.

In reference to the plaintiff’s conduct, the court said: “The plaintiff did not, at the moment, suspect the threatening danger. He admits had he looked he would have had no trouble in seeing the approaching car. There was forgetfulness on his part it is true, just prior to the accident in his listlessly walking as he did; whether it was enough +o defeat the right of recovery is a question to be hereafter determined. Even if one should usually ‘look and listen’, yet if the servant should have seen the danger, it is negligence not to have seen it and applied himself as far as possible to avoid the accident. Moreover the plaintiff was on the passage way from which passengers board the train. These reasons we think take the ease out of the rule requiring one ‘to look and listen’ * * * ' not to have seen the plaintiff walking on so dangerous a place was culpable negligence. It must be borne in mind tha-fpassengers were invited to board the train from the space over which plaintiff was walking at the time. It devolved upon the employees of the defendant company to be careful; to run slowly at this place and to look on the entire front of the advancing car and to exert a timely care toward protecting persons in dangerous proximity to the car. The space having been reduced by defendant’s ear from four and a half feet to eighteen inches, it devolved upon its employees to be careful and watchful. It does seem that with ordinary prudence and watchfulness the plaintiff would have been seen by one in charge of the advancing car. Not to have seen him, in our judgment, makes it evident there was a want of even ordinary care. If the employee had exercised the care required, the accident'might have been avoided. It certainly devolved upon the defendant’s agents to carefully look. Any other rule would afford scant protection to the public and give protection to indifference where there should he watchfulness. There can be no serious objection to the nearness of the tracks to each other. It is unavoidable'; none the less if a proximate track give rise to more than ordinary danger, such danger should be met by corresponding precaution. Instead of care and caution which should have been exercised in passing the steam train, the record shows that the motorman never saw plaintiff, who was walking in a dangerous path between the cars; that there was no sounding of the gong nor the least warning of approaching danger. The defendant’s employees upon such an occasion, particularly where there are many passengers and a number of people on the street, owed to the public reasonable care and diligence. It was the duty of this motorman to be on the constant,lookout .when passing the narrow strip between his car and the West End train at the stopping place of the latter; the time —about midday in November — the place — a dangerous way where passengers frequently boarded the train which plaintiff was seeking to board; the duty to be on the lookout and give warning when there was danger of accidents, all made it obligatory upon the motorman to be upon the alert. By the use of ordinary care, might not the defendant have known that plaintiff was in an exposed position which rendered it proper to give warning at this particular place, and even at this particular place, check its car a little ? In our judgment there was not sufficient care and caution taken to avoid the accident, and in consequence we think that the defendant is liable.

“Plaintiff, it is true, was in an exposed position which called for more than ordinary prudence in his movements, yet he was invited to the place where the accident occurred and notwithstanding a slight inattention he should not have been subject to the risk of severe injury by the negligence of the motorman.”

In the Conway case the defendant company had a person on guard to see and give .warning and to take precautionary steps; but he did not see; in the case at bar there was no person at all placed on guard to see and give warning; and as a matter of course no one saw Lampkin’s danger and no one gave him warning. There was this difference, however, in the situation of the deceased and the defendant. There was an open view for over a block of the present defendant’s track from Spring to Market street and its train was approaching very slowly so that the deceased had ample time to look up the track to ascertain likelihood of danger, while the space between the two tracks on which Lampkin had gone, was only a few feet wide and he could pass from a situation of safety to one of danger in a few seconds.

The jury by a vote of ten to two rendered a judgment in favor of the defendant.

Counsel refer to the verdict of á jury in favor of a corporation as being an exceptional fact, and urge upon us the great weight which should be given to it, but we have to examine the record .ourselves and determine from that examination whether the jury erred or not. Eor the same reasons which have impelled us to reverse or modify the verdict of juries when adverse to corporations, we must reverse or modify them when rendered wrongly in their favor. After mature deliberation we are of the opinion that the verdict rendered in this ease cannot be sustained. We are of the opinion that the death of Lampkin could have been, and doubtless would have been avoided had the defendant company, while running its train through the streets of a city, exercised the care and used the precautions which proper regard for the public safety of the individuals therein called for.

For the reasons assigned: It is ordered, adjudged and decreed thafthe verdict of the jury be set aside, and the judgment rendered therein be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs herein do have and recover from the defendant, J. H. McCormick, in his capacity of receiver of the Vicksburg, Shreveport and Pacific Eailroad,, the sum of twenty-five hundred dollars, with legal interest thereon, from the date of the judgment herein, until paid, with costs in both courts.

Eehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,825.
    A. Lehman & Co. vs. P. N. Coulon et als.
    Syllabus.
    Motion to Dismiss.
    The different amounts to be considered in order to determine whether the salt was simulated pel non, being in the aggregate more than two thousand dollars, and the issues, in the main, including more than that sum, the motion to dismiss is not granted.
    On tee Mebits.
    1. In a suit by a creditor against the husband and wife to have a dation r.n paiement decreed simulated, the husband was permitted to testify to the extent that his own interest was involved. He had some interest involved, besides, he had acted as his wife’s agent, and, in consequence, he was 'a competent witness. Moreover, without his testimony, there was enough testimony before the court to sustain the sale as not being a mere simulation.
    2. The wife, separated in property, whose community interests with the husband are dissolved, still retains the right to recover against her husband any amount which he has received for her and converted to his own use.
    3. The wife received amounts, made crops, and realized revenues on her separate property, for which her husband, by using same, became liable. The testimony does not prove that the husband made no revenues and that the result oi his exertions did not go to the support cf the family. In the absence of that proof, the amount required is not deducted from her separate right in order thereby to reduce it to nil and give rise to the conclusion that the wife has no separate right, as the whole amount went to the support of the family.
    4. Sums paid previous to a dation en paiement for the support of the family, from all appearances, by the husband, will not be charged to the wife on the ground that she is liable for necessaries for the family.
    5. The dation en paiement by the husband to the wife was not a simulation.
    APPEAL from the Fourteenth Judicial District, Parish of Avoyelles — Peterman, Judge ad hoc.

      Adolph Vallery Goco for Plaintiffs, Appellants.

      T. PL. Gouvillon and Joffrion & Joffrion for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sued the husband and wife for seven hundred and forty-one dollars and ninety-six cents and asked for a writ of attachment. They set out that the dation en paiement which they attack was made in fraud of creditors, or, in the alternative, that it is a simulation. The property transferred by this dation consisted of a very limited stock of goods, horses, and other property of little value, and a fractional interest in a gin company. The husband had no other property than that transferred, except some notes and accounts. The indebtedness of the husband for which the dation was made, the parties declare in the deed, was fourteen hundred and fourteen-and 50-100 dollars, which the husband declares was received by him and converted to his use. Plaintiff avers that the husband was insolvent.

The defendant husband seeks to meet the issues tendered by averring in his answer that the dation was made in good faith and for valuable consideration. The wile avers that the property became hers for a consideration equal to its value.

The District Court pronounced judgment for plaintiff for its moneyed demand, dissolved the attachment which had been issued, and, as relates to the defendant’s wife, rejected her reconventional demand. Plaintiff appeals.

Motion to Dismiss.

Defendants contend that this court isl without jurisdiction,- ratione materiae.

Without recounting the facts at any length, we think it sufficient to state that if the action is revocatory, this court is without jurisdiction. This, we take it, is conceded by counsel for plaintiffs, who urge that this court should entertain jurisdiction in so far as plaintiff seeks to set aside the dation en paiement, on the ground that the 'husband is not indebted to the wife and the pretended consideration is fictitious.

The District Court passed upon these issues, and decided that the dation was neither fraudulent nor simulated. We, therefore, will review the issues of simulation vel non and will not pass on the question as to the asserted attempt to defraud. The different amounts to be considered in determining whether or not the dation en paiement is simulated or not, bring the case within this court’s jurisdiction.

On the Merits.

We are informed by the evidence that the defendant, Mrs. Coulon, had obtained, in 1894, a judgment of separation of property, and of dissolution of the community of acquets and gains, on the ground that the husband was in embarrassed circumstances, and that she was entitled to the exclusive administration of her estate. It appears that she did not set up any claim in this suit for separation of property, except a small tract of land she alleges was worth about eight hundred dollars, and of which she was decreed the owner.

Plaintiff seeks to avail itself of the fact that although she was separate in property from her husband, and the community had béen dissolved, she permitted her husband to go on with the business, and she did not seek to avail herself of her judgment of separation of property.

This mode of doing business on the part of the husband may 'not have been highly commendable in a business point of view. The business, in so far as the wife was concerned, should have been carried on in her name, but the fact that this was not done did not have the effect of extinguishing such rights as she may have had. She still was entitled to her separate estate taken by her husband and converted to his own use. He continued bound to account for property he had received. The merchants who 'are now his creditors, including plaintiff here, must, or should, have been aware that there existed a judgment of separation of property and that by crediting him, they ran the risk of losing, in case the wife chose to claim the right she acquired growing out of the conversion of her property to his own use.

A short time after the judgment had been obtained, she bought a small tract of land adjacent to land she already owned for the price of eight hundred dollars, payable in installments. These two tracts she afterward sold for the sum of eighteen hundred dollars. A portion of this amount was retained by her vendee in satisfaction of her debt, leaving about one thousand dollars which she received and which passed into the possession of her husband, and which he converted to his own use. She received from the sale of the swamp lands, the sum of twenty-five dollars. She made crops on her land, which crops were sold and the proceeds received and used by her husband.

He opened a'Store in his name with these different amounts, and not long afterward failed. This was followed by his sale to his wife of the property on hand in satisfaction of her claims.

Taking the revenues made on her two small tracts of land and the amount received by her, the total is over two thousand dollars. Deducting from this sum the different sums with which she can be legitimately charged, there remains enough to her credit to save the datíon en paiemeni from being branded as'a mere simulation — a corpus sine anima.

We are not informed that the husband had any revenue, save the little he made while he kept store just prior to his failure. On the other hand, the wife had land which was cultivated and produced some revenue which the husband received and used. In casting accounts between him and his wife, he must be held to an accounting to the extent of his indebtedness. As just stated, the amounts she received from the sale of her property and the return on crops made on her separate property summed up more than two thousand dollars. Plaintiff sought to prove that- this was all expended in paying her debts and in supporting the family. To this end, testimony was introduced of the amount it required to pay the expenses of the family every year for about three years, which is put down at from three hundred dollars to seven hundred dollars.

The husband, it seems, has some capacity for business. He was a clerk in a store for a number of years. He kept a store for about three years. It is fair to suppose that this store, to the date of his failure, afforded some means of support. He also bought cotton for the market, which may have yielded him some revenue. Taking the evidence as a whole, we are not of the opinion that the wife should be charged with all the expenses, on the ground that the husband had no visible means of support and that they must have been met entirely with the wife’s funds. If such, however, be the case, the husband would remain indebted to her for an expense paid by her, which he should have paid, and not she. They were not always charges for which the wife alone is liable in case the husband is without means of support. One of the items, in amount about one hundred dollars, is especially singled out as a sum which should be deducted, it being an amount, plaintiff urges, for which the wife is liable. Plaintiff’s contention is that the wife, being separated from her husband in property, and being in control and management of her affairs, she should be charged with this one hundred dollars — -a store account for provisions and other family expenses.

We especially refer to this item, because it is the only item supported by direct proof that it was for family supplies. The ground of plaintiff that she should be charged would be legal in an action to compel her to pay the amount, but after payment has been made by the husband, we do not think that a change in the credit can be brought about so as to charge it to the wife.

The husband was primarily the debtor. The debt had been settled by him, and above all, it does not appear with certainty how much of the amount was due for the maintenance of the family. On.appeal, the question relates exclusively to simulation vel non. We have no concern with the action, in so far as it is one to resolve the sale on the ground of fraud of creditors. In our view, the dation was not a simulation.

Plaintiff argues that the husband should not have been permitted to testify, and invokes the law by which his testimony is excluded, when it relates to his wife’s interest. We have, to some extent, considered the issues, without regard to his testimony, and even then we have r.ot found sufficient good reason to decree that the sale is simulated. Testimony was admitted without objection, of his agency in behalf of the wife. As an agent, his testimony was admissible. It was also admissible, in so fax as he was personally concerned. Considered from these points of view, the objection falls.

As relates to defendants’ demand in reconvention, we do not think we should be hasty in condemning creditors to pay damages for bringing suit and seeking by attachment to protect their rights. The facts shown do not impress us as giving rise to a valid claim for damages. This was the opinion of the district judge, and, in this, we agree with him.

For these reasons, the judgment appealed from is affirmed.-

Blanci-iard, J., concurs in the decree.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,928.
    The State of Louisiana vs. Will A. Jackson.
    Syllabus.
    Incorporated towns and cities may call an election, to decide as to local option within their respective limits, twelve months after an election covering the same question as to the whole parish shall have been held under the auspices of the Police Jury.
    APPEAL from the Fourth Judicial District, Parish of Union— Dawkins, J.

      Walter Guión, Attorney General, and Fred F. Preaus, District Attorney, (Lewis Guión of counsel), for Plaintiff, Appellee. ■

      Charles B. Roberts, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Defendant was prosecuted criminally for selling at retail spirituous and intoxicating liquors without license.

From a judgment of conviction and the imposition of a fine of three hundred and five dollars, he appeals.

It appears that an election was held in 1886, under the direction of the Police Jury, throughout the parish of Union, to take the sense of the voters on the question of issuing or withholding license for the sale of intoxicating liquors.

A majority against license was returned.

No question of the legality of the election; or of its result, was ever raised; nor is it raised now.

In 1900 application was made by the citizens of Junction City, an incorporated town in Union parish, to the Police Jury, asking that body . to order an election to be held within the corporate limits of the town to take the sense of its voters on the question of granting or withholding license to sell liquors there.

The Police Jury refused to do this.

Whereupon, the municipal authorities of Junction City, themselves, ordered an election to be held in the town on the question — that is to say, whether or not liquor should be sold within the corporate limits of the town during the year 1901:

This election resulted in favor of license, and, thereupon, the town authorities adopted an ordinance granting license for the sale of liquors for the year 1901.

Under the authority of this election and the ordinance of the town council, defendant took out a license to sell liquors at retail during 1901 in the town of Junction City and was engaged in that business at the time of his arrest and prosecution.

The ruling of the court below was that, under the law, it was necessary for defendant to obtain a license from the Police Jury of the parish to carry on the business of retail liquor dealer anywhere in the par- . ish in the year 1901, and that not having procured such license from the authority named, he was liable to prosecution and fine.

Per contra, the contention of defendant is that after the lapse of twelve months from the promulgation of the election held in the parish at which a majority against license was returned, it was competent for the municipal authorities of any incorporated city or town in the parish to order an election on the question of withholding or granting license for conducting the business of retail liquor dealer within the limits of such city or town, and that if a majority of the voters of the municipality voted for license the same could be legally issued and would protect the holder from such a prosecution as the present one.

The question, then, presented here is:—

After a parish as a whole declares against licensing retail liquor dealers in the parish, does that declaration remain in force throughout the parish — in the incorporated cities and towns as well as in other parts of the parish — until undone by the action of the Police Jury predicated upon another election held throughout the parish at which license shall be authorised? ■ :

Or, may an incorporated town, after the lapse of a year from thcparish election, determine for itself, .independently of the parish, whether or not liquor may be retailed within its limits?

The State holds the affirmative of the first question and the negative of the second; the defense the negative of the first and the affirmative of the second.

Ruling — The issue thus raised is not new. Indeed, it may be said !■; have already acquired the force of stare deeisis.

Act 76 of 1884, which is the statute in question, has undergone, previous to this time, two interpretations by .this court, or rather there have been two cases in which the court was called upon to construe the statute, and in both the conclusion reached as to its meaning is at variance with the position assumed herein by the State.

These cases came up in 1897 and are found reported, respectively, in the 49 La. Ann. 641 and 797.

In both it was held that incorporated towns and cities may call an election to decide as to local option within their respective limits, twelve months after an election covering the same question as to the whole parish shall have been held under the auspices of the Police Jury.

An election may be held throughout a parish to determine whether or not liquor selling shall -be licensed. If the result is against' license, the decision holds as to all incorporated towns or cities in the parish, as well as to what may be termed “the country” portions of the parish. But after the lapse of a year, not sooner, an incorporated town may, through its own authorities, order an election within its own limits to determine anew the question there, and if a majority of the town voters declare for license and this is followed by an ordinance of the town making provision for the granting of the same, a license issued by such town for selling liquors within its limits will protect the holder from prosecution. This is substantially the construction placed upon the Act of 1884 in the cases referred to.

The prosecution contends that the statute is susceptible of a construction different from this — one which would sustain the present conviction — and it is urged that this other construction embodies the true legislative intent and vindicates the public policy sought to be established by the law.

It would seem that a sufficient answer to this is that some four years have elapsed since the decisions referred to were handed down, during which time several sessions of the General Assembly have been held. Yet no amendment or change in the law has been made.

Even if the statute be susceptible of another construction, that placed upon it by the court appears to be the accepted one — at least one that is acquiesced in — and we do not feel justified in going again into the inquiry in the effort to reach a conclusion different from that announced.

It is ordered and decreed that the judgment and sentence appealed from be avoided and reversed, further proceedings against the defendant be stayed, and that he be hence dismissed with costs.


author: Monroe, J.

text:
    No. 13,679.
    New Iberia Rice Milling Company, Limited, vs. Honore Romero.
    Syllabus.
    1. A written instrument, purporting to embody an agreement concerning a matter not required to be in writing, which bears the signatures of the party of the one part only, has, of itself, no binding effect as to the party of the - other part, who has not signed, but the fact that the latter has entered into the contract may be shown by his execution thereof, with the concurrence of the former.
    2. A contract whereby a company engaged in furnishing water to rice farmers by irrigation, acquires the right-to conduct such water by means of a canal or ditch through one farm to another does not impose a real servitude on the farm through which the water is conducted.
    3. A mandatory writ of injunction may issue ea> parte, or without a hearing on the merits, in some cases, as for instance, where a prohibitory writ issues, restraining one from obstructing the exercise of a right, the obstruction may be commanded to be removed because its continuance inflicts the injury which is prohibited.
    4. The defence that a private corporation, suing on a contract, has no standing in court because the making of such contract was ultra vires of the corporation, will not be considered if suggested for the first time in the argument. It should be’ specifically set up in the pleadings.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Foster, J.

      Walter J. Burlce & Bro., for Plaintiff, Appellee.

      Andrew Thorpe and Voorhies & Voorhies, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff alleges that it owns an irrigating- canal extending from Bayou Teche to the rear country, by means of which it furnishes water, at a fixed price, to persons engaged in the cultivation of rice upon lands contiguous to said canal. That it is under contract to furnish water to various parties “through and by means of this canal, “ which transfers (traverses ?) a section contiguous to the rice field of “ITonoreRomero, a resident of this parish, and extending beyond his property. That said irrigating canal is constructed upon a right of way ex- “ tending from Bayou Teche to its extreme limits considered (conveyed) “ and granted to the petitioners by the various owners through whose “ lands the said canal traverses * * *, that at a point in said canal “proximate to the rice field of ITonore Romero, the said Honore Ro- “ mero without legal right or a warrant has dammed said canal so as to “ prevent the water flowing therein to go beyond his own fields, to the “ extreme prejudice of all rice lands depending upon this canal for their “ irrigation and to the great and irresponsible (irreparable) injury of “petitioner * * *; that the damming of said canal, preventing it “ from complying with its contracts with various other parties, would “ occasion, if persisted in * * * injury and damage to the peti- “ tioner * * *; that it has repeatedly notified the said 'ITonore Ro- “ mero to desist-from his wrongful conduct * * *; that it is urgent, “ in order that the other rice fields dependent upon this canal for water “should not be allowed to suffer, that said dam should be moved at “ once, and said Romero injoined and prohibited from continuing his “wrongful conduct.”

The petition further alleges that the defendant has acted maliciously and has inflicted actual loss and injury on petitioner, and prays for an injunction, both piandatory and prohibitory, commanding said defendant immediately to remove the dam constructed by him and prohibiting him from placing any other in said canal or from otherwise obstructing !he same; and the injunction was issued accordingly, and was obeyed by the defendant who removed said dam and has not since obstructed said canal.

Thereafter, the defendant answered, as follows, to-wit: He denies generally the allegations of the petition, except as otherwise admitted, and specially denies having dammed the canal used by plaintiff for irrigation purposes as described in the petition.' But he alleges that he had dammed a ditch, which is his property and is on his own lands, and which had been used by him for drainage purposes, and which had, at no time, with his knowledge or consent, been selected, under any contract with plaintiff, to serve as an irrigating canal, or as any outlet for' the irrigating canal constructed by the pláintiff. He further alleges that the injunction issued improvidently, and he prays that it be dissolved with damages.

- The evidence shows that the defendant, together with his brother, O. P. Romero, and his neighbor, Ovide Landry, and others, signed a document, which was produced and filed in evidence by the plaintiff, and which reads as follows, to-wit:

“New Iberia, La., Oct. 28, 1899.
“ This shows that the New Iberia Rice Milling Oo., Ltd., of New' “ Iberia, La., will construct an irrigating canal, the pumping plant to “ be located on the .Bonin plantation, and that we, the undersigned, “ bind and obligate ourselves to plant and cultivate rice, in the number “ of acres set opposite our names below, and further agree to cultivate “ rice during a term of three years from the date hereof, and to com“pensate the said rice milling company by (for) furnishing us with “ water for irrigating our lands by giving two sacks of rice for every “ acre irrigated. All terms, agreements, and rules relating to furnisli- “ ing said water to be the same as now in force with other irrigating “ companies in this State. And (we) further agree to give any and all “rights of way for said main canal and for lateral ditches across our “ lands to furnish water to parties beyond our respective lands.
“(Signed) O. P. Romero, 150 acres.
“H. Romero, 125 acres.
“L. C. Duboin, 150 acres.
“Ovide Landry, 100 acres.
“S. LeBlanc & Bro., 200 acres.
“Robert Wilkin,
“William Newman, 75 acres.”

At a date which we understand to have been subsequent to that borne by this instrument the plaintiff excavated a canal running out from Bayou Teche at a right angle to thé course of the bayou, approximately, South, for a distance, judging from the sketch which is in evidence, of about thirty arpen.ts, at which point it branches into what may be called two forks, the one running, approximately, West, for a short distance and then resuming a Southerly course; and the other making a short turn to the East, and then, also resuming the Southerly course, so that the two forks, after resuming the original course of the main canal, run parallel with each other, and are separated by the property of Ovide Landry, the fork on the Southern side of said property being the one concerning which this controversy has arisen.

The evidence leaves it in doubt as to whether the line between the property of Landry and that of II. & O. P. Romero runs through tire middle of this fork, but, so far as it goes, rather indicates that such is the case. And it is established beyond controversy that said fork existed as a drain before the plaintiff began operations, and that the defendant co-operated with the plaintiff’s superintendent and representative when the latter undertook to do the work necessary to convert it into an irrigation canal, and that a slight change was made in its course at his suggestion. It also appears that plaintiff, as part of its plan of irrigation, has a dam in said fork about midway between the line separating the defendant’s property from that of Leitmeyer, on the north, and the line between defendant’s property and that of his brother, O. P. Romero, on the south, and that the water supply for the use of O. P. Romero is intended to go over, and does go over, said dam, but that the defendant built the dam which is here complained of on his southern boundary, and in such a manner as to cut off O. P. Romero’s supply, and that O. P. Romero complained that he was not getting the water to which he was entitled under' his contract with the plaintiff. During the trial of the case, the defendant did not take the stand, and but little testimony was offered on his behalf. He has, however, appealed from a judgment perpetuating the injunction as issuéd.

Opinion.

The propdsitions upon which the defendant’s counsel rely will be stated and considered seriatum:

1.

That the plaintiff alleges that the' defendant had “at a point proximate to Ms field” dammed, without right of legal warrant, the irrigating canal of the plaintiff corporation, used by it to furnish water to various parties for the cultivation of rice, “and that in support of this allegation, the plaintiff was permitted to show, not that the irrigating canal had been dammed at a point proximate to defendant’s field, but that defendant had dammed a ditch on his own property and at a point several arpents distant from the canal described in the petition.”

• There is no merit in this complaint. That which had been a “ditch” had been converted by the plaintiff, with the knowledge and concurrence of the defendant, into an irrigating canal. As to the location of the dam, the plaintiff does not undertake to say whether it is on defendant’s land or not. The allegation is that “at a point in said canal proximate to the rice fields of Honoré Eomero * * * has dammed said canal, etc.” This averment does not suggest that the canal is not on the defendant’s property, but merely that the dam is near his rice fields, which is not denied.

2.

It is said that a written document containing propositions from one party to another is not binding as a contract until accepted either expressly or impliedly. This is a sound proposition, but finds no application to this ease. If no evidence had been introduced except the written instrument bearing the signatures of the rice growers, but unsigned by the plaintiff, the latter would, necessarily, go out of court. But the evidence shows that the plaintiff has done what it was called upon by that instrument to do, with the knowledge and concurrence of the defendant and has thereby accepted the contract as expressed in said instrument.

3.

It is also said, “a permit to use a ditch for certain purposes and the right of way for that purpose is a real servitude” and cannot be established by parol evidence. No doubt if such a permit is granted and imposed as a burden upon one estate in favor of another estate it becomes a real servitude. But, where a business corporation, owning no real estate, but for the purposes of its business, acquires, by contract, the right to use such ditch, the right so acquired no more resembles a real servitude than does that of a lessee, who, by virtue of his lease, acquires the right to use the entire property.

4.

The objection is urged that the mandatory injunction should not have issued, save after hearing on the merits. The injunction was issued on June 18th, 1900, and, as the ease is yet to be disposed of, it is evident that if the rule invoked had been applied the injury which the mandatory order was intended to ward off, i. e. the destruction of the rice crops which were dependent upon the dammed up water would long since have been sustained. This court has been confronted with similar situations upon one or two occasions, and has been called upon to determine whether, in such cases, the writ of injunction may hot be used to stay a threatened injury, by compelling the doing of some thing necessary for that purpose, as well as by prohibiting that which, if done, would inflict the injury, and the question has been decided iu the. affirmative. In McDonough vs. Calloway et al., 7 R. 442, it appeared that the defendants had fenced an alley, the use of which was common to the plaintiff, and the latter applied for an injunction ordering the demolition of the fence and enjoining defendants from disturbing him in the free use of the alley. The trial judge issued an injunction, on bond, restraining the defendant from disturbing the plaintiff, but containing no order to do anything. A few days later, the plaintiff ruled the defendants to show cause why they should not be punished for contempt and why the obstruction complained of should not be removed at their expense. The judge held that as the defendants had done no act since the issuance of the injunction they were not guilty of contempt, and that he could not order the demolition of the obstruction until he had heard the parties on. the merits. And the plaintiff appealed. It was said in this court:

“ By the prima facie ease presented by the plaintiff he shows that he “ is the owner of a lot having a front of more than one hundred feet on a way, or passage, laid off more than twenty years previously as com- “ mon; that without its use there is no ingress or egress to or from the “houses on said passage, and that the occupants cannot get in or out; “ that the defendants, without any legal authority, have fenced up and “ obstructed said passage, and that those obstructions continue to the “ injury and inconvenience of the plaintiff and his tenants, who are de- “ prived of the free use of the property.”

A motion was made to dismiss the appeal on the ground that it had been taken from an interlocutory order, and that the injury was not irreparable, but the motion was denied. And in passing upon the merits, the court said: “ The law has not left parties remediless in such cases, nor the courts powerless for the correction of such evils, and we think the judge below should at once have granted an order to have the obstruction to the use of the common passage removed by the sheriff.”

This ruling was categorically affirmed in the ease of Pierce vs. City of New Orleans, 18 Ann. 242, in which the plaintiff complained that thccity had caused certain openings to be made in a wall held in common and prayed that it be ordered to close them. Eeferring to the case of McDonough vs. Calloway (supra), the court, through Mr. Justice Illsley, said: “ It is true that in the case just referred to, the nuisance com- “ plained of was rather of a public than private nature, but from the “ whole tenor of the opinion pronounced in that case by the court, it is “ evident that such a case as the one at bar would come, under tne rules “ of law, within the scope of the principles therein contained.”

In State ex rel. Yale et als. vs. Judge, 41 Ann. 516, it appeared that relator’s “Home” plantation had enjoyed a servitude of drain over the “Arlington” plantation, owned by J. P. St. Martin, and relators had built levees and established a draining machine with reference to the enjoyment of said servitude. That being the situation, St. Martin obtained an injunction, prohibiting the use of said machine, which injunction was released on bond, upon the application of the relator. Thereupon, St. Martin built a levee in front of the machine, so as to prevent its effective operation, and the relator applied for an injunction “ prohibiting and restraining the defendant, St. Martin, from disturb- “ ing them in the free use and enjoyment of the right of drain through “the 'Arlington’ plantation to the Bayou Joe Eose, coupled with a “prayer for an order commanding the sheriff to demolish and remove “ the obstructing levee”. This order the judge: refused to make save after hearing St. Martin upon a rule nisi, and the relators then applied to this court for a writ of mandamus.

It was held that it was the absolute duty of the district judge to have issued the prohibitory injunction as prayed for, and the court, through Mr. Justice Eenner, then said: “We consider that the additional order “ prayed for, to remove the levee which operates the disturbance, was á “natural and necessary corollary and concomitant of the injunction “ against disturbance.” And, after referring to the case of McDonough vs. Calloway, and other cases, the opinion proceeds as follows, to-wit: “The later case of Black vs. Good Intent Co., 31st Ann., reviewed “McDonough’s case above cited, and, aá we understand the decision, “ approved and confirmed it, as an exception to the general rule, ex- “ pounded in the body of the opinion, that the writ of injunction, in the mandatory form, cannot be issued on an ex paHe application, but only “ after hearing * * *. In the instant case, it was the clear duty of “ the judge to grant the prohibitory injunction prayed, and the eonse- “ quent duty to order the removal of the obstruction arose simultan- “ eously.” And the doctrine thus affirmed was re-affirmed in State ex rel. Syndic vs. Judge, 41 Ann. 557.

5.

The suggestion is made, in argument, that the plaintiff corporation was established for the purpose of milling rice and that contracts for the supplying of water for the irrigation of rice lands are, therefore, ultra vires, and hence, that the president of the corporation has no right to use the corporate name for the purposes of this suit. These are questions which should have been raised in the pleadings.

Judgment affirmed.

Rehearing refused.


author: Breaux, <T.

text:
    No. 13,781.
    Mrs. S. M. Abney vs. Texarkana, Shreveport and Natchez Railroad Company.
    Syllabus.
    1. In an expropriation suit the owner is entitled to adequate compensation. While great weight is due to the verdict of the jury, both the trial judge and the appellate court must be satisfied that the amount allowed is equal to the value of the land expropriated. The evidence of witnesses taken as a whole, the value of lands of the vicinity expropriated in other suits, and the price paid for the land and all facts and circumstances considered, sustain a decree for a larger amount than that heretofore allowed.
    2. The jurors after having heard the testimony regarding the number of acres of cotton destroyed, fixed it at less than claimed. Their estimate of the loss is taken as correct.
    3. The other claims of plaintiff for damages are considered as offset, as far as plaintiff may have any right, by the increase in value of plaintiff’s plantation brought about by the construction and operation of the defendant's railroad.
    APPEAL from the First Judicial District, Parish of Caddo — Land, J.

      J. Henry Shephard, for Plaintiff, Appellant.

      Leonard; Randolph & Rendall, for Defendants, Appellees.
   The opinion of the court was delivered by.

Breaux, <T.

Plaintiff appeals from a verdict and judgment in her favor for the sum of four hundred and twenty-seven and 20-100 dollars on the ground that the amount is less than the sum! to which she is entitled.

This sum was allowed to plaintiff for a right of way consisting of a strip of ground sixty feet wide, running through her plantation, and one hundred feet wide at the switch for a distance stated in the judgment.

She sets forth that by the expropriation she lost the cotton which had been planted on the land which she values at one hundred and sixty dollars. She claims, in addition, four bales of cotton which she avers defendant destroyed by hauling over her other cultivated lands. She further avers that defendant’s employés removed the fences around her cultivated lands; that cattle found a free way to her fields and destroyed, by tramping thereon, ten bales of cotton worth the sum of thirty dollars a bale; she complains of the embankment constructed by defendant as a continuing obstruction to the drains, impeding and stopping the flow of water and reducing the capacity of some one hundred and fifty-seven acres of new land for the production of crops,'causing damage to the amount of three thousand dollars. She also alleges that this embankment is an obstruction to hauling from one portion of her plantation to the other; that the dwellings, gin house, and other buildings are cut off from the western part of the plantation by this embankment and for this she claims five hundred dollars damages.

The defendant denies that it has caused any damage and sets up in defense that it was with the approval of plaintiff that it built and constructed its line of railway as it did; that it is now in possession of its right of way over which it is operating its daily trains; that plaintiff agreed that she would make a deed to this right of way in consideration of advantage to her property on condition that defendant would construct a switch and platform for the convenience of her plantation; that it went into possession with this -understanding, and did construct the switch and platform at a cost of five hundred dollars. Defendant annexed interrogatories to plaintiff to its answer, which plaintiff answered and denied that her son attended to all her business affairs, as alleged by the defendant. She testified that she was not aware of the building oí the road; that her consent was not asked, and she generally negatives all the averments of defendant in the answer.

Defendant concedes that the question of title to the right of way is eliminated by plaintiffs answer to the interrogatories, and avers that the case thereafter presented questions of fact relating to the items for damages.

The different estimates as to value placed upon the land give rise to the first question for our decision. The plantation is about twenty-five miles north of Shreveport on the line of defendant’s railroad. The estimates greatly vary. Some of the witnesses have placed an estimate at twenty-five dollars per acre, and others at one hundred dollars, and even more. A number of witnesses agreed upon thirty dollars as the value before the line of the railway was surveyed. This amount was the maximum sworn to by all of defendant’s witnesses and by one of the witnesses for the plaintiff. Taking account of the total fixed by plaintiff’s witnesses of the value of the land, it would be more than three times larger than the jury’s verdict. Taking the average of the minimum amounts testified to by six witnesses for. defendant the result is twenty-five dollars an) acre as the value at the time before stated. Taking an average of the maximum amounts testified to by these witnesses, the result is thirty dollars. A similar average of íhe estimates for paintiff is very much larger, more than seventy-five dollars. Ordinarily, all of the witnesses being equally credible, an average based upon the estimates of the larger number of witnesses should control. True, the rule regarding average in matter of weighing testimony is not a safe one unless all the witnesses are about equally intelligent and credible. We assume in this case that they are. The result is decidedly favorable to the defendant. But other grounds present themselves for our consideration, which, in our view, more than counterbalance the result before found.

In matter of the expropriation of a public road in the vicinity, more than one hundred dollars an acre was allowed for the land. The evidence discloses that in a suit for the expropriation of land in the vicinity a judgment awarding one hundred dollars an acre was delivered.

It appears that plaintiff in this suit has paid a considerable amount more for the land than the amount of the jury’s verdict. The witnesses in testifying kept in view that the benefits and advantages of the railroad must be considered, and we have every reason to infer that the jury in assessing the value of the land, took the same view. Eor reasons that we will insert later, these benefits are not now considered. We assess the value of the laud at sixty dollars per acre.

The area expropriated is nine and 60-100 acres. The topographical engineer for the road has limited it-to that number of acres. The defendant claims only sixty feet in width, less than the usual width, it is true, but the record does not disclose that the defendant occupies more than that number of feet.

We pass to the next item for which an amount is claimed, consisting of twelve acres planted in cotton that the defendant ploughed up and destroyed. Plaintiff’s son and general agent, in managing her plantation, fixed the number of acres at much less than twelve. The ground had only been broken up, ploughed, and planted in cotton. Keeping account of the cost of the seed planted per acre and the cost of the ploughing per acre as shown by the testimony, we find no reason to disturb the verdict of the jury as to this amount.

Plaintiff claims the value of four bales of cotton destroyed by defendant by hauling ties across her land. She was allowed the value of two bales, an estimate that has the appearance of being sustained by the weight of the testimony.

The two remaining items are for injuries growing out of the asserted obstructions of the drains of the place and for inconvenience in crossing on the place from and to the land separated by the railway. The testimony is conflicting. The witnesses for the plaintiff testify that about five hundred dollars is the amount of the damage arising from this cause, while those for the defendant testify that the two crossings constructed by defendant afford ample facility for crossing over the embankment from one portion of the place to another. We are led to conclude from the testimony that plaintiff’s son who seems to have had charge of the place, did not object to the line of railroad as laid over and across the place. Although defendant’s witnesses have sworn as just before stated, it may be that at times some inconvenience is felt owing to the fact that all hauling from one place to the other must be at and over the two crossings in question. It would be difficult, we must say, to fix the amount of damage on this score. Our judgment, were we to allow damages, would not be sustained by any direct testimony pointing to items of damages suffered.

With reference to the drain, we are equally at a loss for positive data upon which to base our decree. True, some of the witnesses have indicated a proportion of difference between the crop on the west side of the place, being southwest of the road, and the portion of the crop on the east side which plaintiff insists is not sufficiently drained since the railroad embankment was constructed. The witnesses about this also greatly disagree. The different views expressed by the witnesses for the defendant and plaintiff respectively are diametrically opposed one to the other. Plaintiff found without difficulty a basis for a correct estimate of damage suffered. Defendant was equally as positive not only that damage had not been suffered but that the drain had been considerably improved, its theory being that the water drains down the pit along the 'embankment to the south follow the natural declivity. These conflicting theories and ideas are not convincing. We do not suppose that the damage to the drainage was immense on the one hand or that, on the other, plaintiff’s drain was improved. The lands on the west side were more recently opened to cultivation. They are fresher and, we understand, produce more and perhaps a better grade of cotton. Defective drainage, in our judgment, is not the direct cause of the difference in production. Besides nearly all these crops were cultivated with laborers on halves, thereby reducing the damage, if any was suffered, by one-half.

With reference to the theory of improvement in the drainage as just mentioned, • it leads to the conclusion, that culverts which defendants placed in the embankment were useless and that the side ditches along the road would suffice. This is not insisted upon by defendant. It has constructed a number of culverts in the embankment. Taking account of the changes an embankment two feet in height, as this was, occasioned, as testified to, it is reasonable to suppose that inconvenience and damage have been suffered. The measure of the damage is not determinable with any reasonable degree of certainty. It is about as indeterminable from the point of view of satisfactory certainty as defendant’s claim that its railroad has caused an advance in price to the extent of, at least, ' twenty-five per cení. One is about as unsettled as the other. No question but that the railroad has greatly aided, indirectly, in developing agricultural resources and that lands have, to some extent,' enhanced in value, but we are informed by the testimony that their value was improving before the railroad line was run; that a system of levees built by the State protected these lands from overflow and that, immediately after, 'prices enhanced. The weight of the testimony does not convince us that the railroad alone is entitled to the whole credit for advances in price.

As the plaintiff’s claim for damages for inconvenience in crossing the embankment and to its drainage is not by any manner of means reasonably certain and as this is also true of defendant’s claim for accruing benefits, we have concluded that one is, or should be, considered as equivalent to the other. After having established this solution, we do not think there remains anything to the credit of defendant to be deducted from the value of the land and for that reason have allowed a price equal to its value. We have considered the application for a new trial made by plaintiff on the ground of misconduct on the part of the jury. The grounds are not sustained and the issues are not such as to require other delays to pass upon the rights of the parties in interest. No complaint was timely urged both as relates to an asserted interest of one of the jurors, nor as to the improper conduct of any of the jurors.

Eor these reasons, the judgment appealed from is amended by increasing the amount allowed for the value of the land to sixty dollars per acre, making a total for the' land of five hundred and seventy-six C$576.00) and thus increasing the total judgment to seven hundred and fifteen and 20-100 dollars.

As amended, the judgment is affirmed.


text:
    No. 13,747.
    John T. Lynn vs. Antrim Lumber Company, Limited.
    Syllabus.
    Although a logging railroad is not expected or required to be laid with the same care and security, nor to be operated with the. same degree of prudence, as is demanded in the construction and operation of railway tracks in use by common carriers, nevertheless such road should be so constructed and operated as to render it reasonably safe for those whose employment necessitates their going upon such road and performing service in connection with the same.
    APPEAL from the Second Judicial District, Parish of Bossier— Watkins, J.

      A. J. Murff for Plaintiff, Appellee.

      Purnell M. Milner for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff sued to recover $2,958.50 damages for personal injuries sustained by him while engaged in coupling cars on defendant company’s “logging” railroad..

The defense was:—

1. Assumption by plaintiff of the ordinary risks incident to the employment, and that the accident which befell him came within the scope of such risks.

2. Contributory negligence.

The case was tried by jury, who returned a verdict in favor of the plaintiff for $1150, and from a judgment based thereon defendant prosecutes this appeal. Answering the appeal plaintiff prays an increase of the award in his favor to the full amount demanded in his petition.

Defendant company conducts a saw and planing mill in the Parish of Bossier, and, as appurtenant thereto, operates a railway for the transportation of logs from the forest to the mill.

The day of the accident was November 17, 1899. On the morning of that day the fireman of the logging train informed the manager of the company that the engineer had not reported for duty. He, thereupon, received instructions from the manager to, himself, take charge of the train as acting engineer, and to employ the plaintiff to take his place as fireman.

The plaintiff, it seems, had been in the employ of the company at one time — about two years before; but had not lately been engaged in its service. He was, however, seeking employment and had appeared that morning at the mill in quest of work. He accepted the place tendered and immediately went out as fireman on the logging train.

The distance from the mill to where the logs were awaiting transportation was about eight miles.

When the train reached its destination, the fireman (plaintiff) was directed by the engineer to leave the engine and assist the brakeman in the duties of his position. It seems the train crew consisted of the engineer, fireman and one brakeman, and that on account of the scarcity of hands it was part of the fireman’s duty, on reaching the place where the ears were loaded with logs, to help in the work of sidetracking the empty cars brought out, and of making up the train of loaded cars to take back to the mill. At any rate, it was usual and customary for him to assist in this work — to aid the regular brakeman in coupling and uncoupling cars. This he was ordered to do on the morning in question.

It was plaintiff’s first day out. While he had done similar work during his former employment two years before, it was on a different spur track, and while some of the old cars were still in use, many new ones had meanwhile been bought by the company and were being used for the transportation of logs.

This particular track and road-bed plaintiff had not seen, or been employed on before; nor had he had previous experience in coupling these.particular ears.

Obeying the orders of the engineer he had effected two couplings of the ears heavily laden with logs and was attempting the third when he was injured.

It was after this wise that he was injured:—

The only way to effect the coupling was to go between the cars, take the link and coupling pin in hand and when the impact came, when the draw-heads fitted in place, to adjust the link and drop the pin in place. Plaintiff took the usual position for a brakeman to occupy in coupling such cars. He stood by the end of the stationary car loaded with logs which was to be coupled to the train. The train of cars was signalled to back slowly and this was done. Plaintiff raised the link to effect the coupling, but owing to the fact that the ear he was standing by was a high car and the one approaching was a low car, the proper connection was not made, and so great was the difference in this respect that the draw-heads or bumpers of the two cars failed to meet or come in contact at all — one passed above the other — and the result was that the cars came unduly together and plaintiff, by reason of this defect in the apparatus, this mismating or non-fitting of the draw-heads or bumpers, was caught between the cars and the logs with which both cars were loaded, and was mashed about the collar bone and shoulder and badly injured.

The evidence discloses that if these cars had been of equal or nearly equal height, as relates to their respective draw-heads or bumpers, the trouble would have been obviated.

It was occasioned directly by this mismating of cars and by defects of the road-bed. It was not impossible to effect the coupling of the two cars in question, notwithstanding their disparity in height, but it was impossible to effect their coupling on level ground.

After the injury to plaintiff the cars were coupled, but it was done by pushing the higher one on to a lower level of the track and then bringing the lower car up to it on a higher level of the track.

Plaintiff had not been notified of this disparity or irregularity in the cars, and otherwise had no knowledge of the same.

He was injured within about fifteen minutes after he left the engine to assist in the coupling.

He explains that when he° saw the impossibility of effecting the coupling, because of the mismating of the cars, he could not extricate himself from his then position in time to avoid injury.

John W. Martin, who was the acting engineer of the logging train when plaintiff was hurt, called as a witness for plaintiff, was asked:—

Q. If these bumpers had struck each other, a man could stand in between them — if the bumpers struck each other there was no danger?

A. No, sir; if the bumpers struck each other there was no danger to a man standing in between them.

Q. As an experienced man on the railroad, do you consider those cars safe? Just state whether or not you consider a man safe in coupling those cars. State whether you consider those cars are arranged in a safe manner, so that a man could go in there with safety and couple them?

A. No, sir, he could not. That’s my opinion. He could not.

Q. It is a very dangerous process ?

A. Tes; where a man has to lift anything with his hand, under those circumstances, it is a pretty dangerous business.

Q. And that was absolutely necessary in order to couple them?

A. Yes, you would have to get your pin set with one hand and pick up the link with the other.

Q. Was the uneven height of those draw-heads the cause of all that?

A. Yes.

Mr. O. A. Antrim, president of defendant company, called as a witness, testified that his logging road was equipped and operated about as such roads usually are, and that he considered the cars used substantial and suitable. He admitted, however, that the cars were of uneven height, that he would prefer cars of the same height if he could get them at the same price, and that it would be safer for his employees if the draw-heads or bumpers were of the same height.

Ruling — We are persuaded that the facts bring this case well within the rule announced in Bomar vs. La. North & South R. R. Co., 42 La. Ann. 983, where it was held that “it is the employer’s duty to provide suitable appliances,” and that if the appliances in use are defective and the employee is injured in consequence of such defectiveness, the employer is responsible in damages. Also, where it was held that an employee is not guilty of contributory negligence when it is not shown he was aware of the defectiveness of the appliances used, and where he was ordinarily careful in the discharge of his duties.

In Towns vs. R. R. Co., 37 La. Ann. 634, the same proposition was thus announced:

“The law imposes the duty on thel master of furnishing safe and suitable implements for the business, and makes him responsible for such damages as result from the failure to perform that duty.”

And in Hanson, Tutor, vs. R. R. Co., 38 La. Ann. 111, it is found embodied in this form:

“Railroad companies are held to the greatest care and diligence, both in regard to the machinery and equipment of their roads and the acts of their officers and agents.”

See also Dixon vs. Lumber Co., 52 La. Ann. 1109, and Ellis vs. Ry. Co., 95 N. Y. 546.

Tt may. be true that logging railroads appurtenant to saw mills, constructed wholly on private grounds and operated for private purposes, may not be charged with all the duties and responsibilities incumbent upon common carriers, nevertheless such roads, or the company, individual, or association owning the same, are to be held to reasonable accountability in the matter of their construction, maintenance and operation.

Although a “logging” road is not expected or required to be laid with the same care and security, or to be as solid and complete as is demanded in the construction of railway tracks in use by common carriers, nevertheless it should be so constructed and operated as to render it secure to those whose employment necessitates their going upon such road and performing service in connection with the same. The handling, coupling, running of cars and hauling logs, etc., etc., upon such roads should be made reasonably safe to those engaged in that useful avocation.

This court, in affirming the doctrine here announced, said, in Van Amburg vs. R. R. Co., 37 La. Ann. 653:

“No company has any right to trifle with the lives of its employees, nor to put them in greater peril than is incident to the nature of their employment. It can not for the sake of economy or other causes fail to make even its temporary structures sufficiently safe for the contingencies of its special work.”

All around — as to the merits of the controversy, the determination of the issues, the amount of the award — we think the verdict of the jury meets fairly the requirements of the case, and the same is sustained.

Judgment affirmed.

Rehearing refused.

Proyosty, J., takes no part — this case having been submitted prior to his taking his seat on the bench.