text:
    No. 13,233.
    State ex rel Jean Lafitte vs. Judge of Division “C,” Civil District Court for the Parish of Orleans.
    Syllabus.
    1. The writ of injunction is not wholly a writ oí right — a legal discretion as to the granting or withholding of same being vested in the court of the first instance. The doctrine in Bank vs. Webre, 44 La. Ann., 1083, and Cheatard vs. City, .10 La. Ann., 752, re-affirmed.
    2. In a case where a political corporation, clothed with extensive powers of government, is sought to be restrained by writ of injunction demanded on an cm parte showing, and it being probable that matters of public health, or safety, or convenience are involved, the judge to whom the application is made exercises but a wise discretion when, instead of granting the order inslam-ter, he directs the opposite party to be notified and cause shown, if any, why the writ should'not issue.

      Z. The mere declaration by a town council that a certain street exists and directing its officers to open same, cannot operate to give the right of entry to its agents, for that purpose, as against private rights asserted on the basis of ownership and actual physical possession.
    |N APPLICATION for writs of mandamus and prohibition.

      A. B. Philips and Albert Voorhies for relator.

      Respondent judge pro se; (J. J. McLoughlin, Asst. City Atty., and Smile Pomes, of counsel).
    Submitted on briefs June 22, 1899.
    Opinion handed down June 29, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Relator applied to the Oivil District Court, Parish ■of Orleans, for a writ of injunction restraining- the City of New Orleans, through its officers, from tearing- down and destroying- the fences inclosing certain squares of ground of which 'he claims the ownership and possession.

He represented the squares in question to be bounded by Paris avenue, Warsaw street, Humanity and Richelieu streets; that he had the property fenced up and was using the same,for his purpeses, including' the herding of cattle; that the city had sent a force of men to enter upon his premises and remove his fences; that this would be done unless restrained by the court; and that the doing of same •would result in damages to him (relator) in the sum of $2,500.

He averred that -there had been no dedication of his property to ■public uses, no expropriation of the same for public purposes, and that the city was wholly without right in-the premises.

The district judge, fo whom the application for injunction was made, declined to grant, the- order outright, hut, instead, directed a rule to be taken against the City of New Orleans to show cause, on a day and hour fixed, why the writ of injunction should not be granted as prayed for, and, meanwhile, issued a restraining order against the city to preserve' the existing status until the court could act further on the application' made.

At the time designated for the trial of the rule the City of New Orleans answered that in compliance with certain ordinances (naming them), adopted by the City Council, it was made the duty of the Commissioner of Public Works to cut away the wire fences obstructing Bruxelles street, in said city, from Gentilly road to Ne Plus Ultra •street, on lines to be furnished by the City Engineer, and that the commissioner was proceeding to execute his said duty and open Bruxelles street on the lines so furnished by the City Engineer’s .office, without, any intention or purpose to enter upon private property. There was annexed to the answer a blue print copy showing the location of Bruxelles street and other streets and squares of ground in that part of -the city.

From this it appears the contention of the city is that one of its public streets has been interfered with, obstructed and closed by somebody’s fences, and it (the city) was only proceeding to open the street and free it from these obstructions when checked by the restraining order issued at the instance of relator.

Proceeding with the trial of the rule, the city, in support of its^ reply thereto, offered in evidence the ordinances of the council directing the opening of Bruxelles street by the cutting of the wire fences running across the same.

Counsel for plaintiff (relator here) objected to the introduction of any evidence on the ground that none is admissible on a rule nisi for an injunction, and that the application for the provisional injunction is to be determined on the face of the papers. He objected to a trial of the case on its merits, and declined to go further in the matter of the rule to show cause than to have his right to the injunction determined on the face of the papers.

The judge ruled against his objection to the evidence offered, whereupon he reserved a bill of exceptions, declared he submitted the case upon the motion for the injunction and withdrew.

Considering the case as presented by the petition and affidavit of plaintiff, on the one side, and the answer of the city to the rule to show cause and the evidence offered in support of its answer, on the other side, the judge declined to grant the injunction and set aside the restraining order.

Whereupon, the present application for mandamus to compel the judge to grant the order, and for a writ of prohibition to prevent the setting aside of the restraining order, and to prevent the city from acting contrary to the restraining order, was made.

An order was entered here directing the judge to show cause why the writs applied for should not issue.

As showing cause, the judge replies that the injunction applied for is not such as relator is entitled to of right; that the answer and exhibits of the city, filed in his court, negative the contention of the relator that the squares of ground he claims the ownership of or possession of are about to be invaded by the agents of the city; that all the city is seeking to do is to remove obstructions from a public road; and that courts will not lightly interfere with municipal corporations in the exercise of their ligitimate police powers. •

■ The issue thus made up is whether relator was entitled of right to the injunction he applied for on -the face of his petition, or whether the judge could exercise a discretion in the matter, direct the city to show cause why the writ should not issue, enter the restraining order meanwhile, and then, on the trial of the rule, determine, as he did, that it was not a case where the writ should issue.

In Bank vs. Webre et al., 44 La. Ann. 1083, the court reviewed to some extent the jurisprudence on this subject, and mentioned that the writ of injunction is not wholly a writ of right, but that a legal discretion in regard to the granting or withholding of same is vested in the court of the first instance. In Ohatard vs. City, 10 La. Ann. 152, it was said: “We think it would be a prudent and proper practice, in cases affecting the public health or convenience, or the enforcement of police regulations generally, that applicants for writs of injunction should be required, before the writ is granted, to establish, contradictoria, at least a prima facie necessity for the protection of the writ.”

We affirm anew the doctrine of these decisions, it being always understood that the discretion so to be exercised by the lower judge is subject to review by this court in case of abuse of such discretion.

In the instant case it is a political corporation of the State, clothed with extensive powers of government, that is sought -to be restrained by a writ of injunction demanded on an ex parte showing. In such case, it may well be, to more or less extent, that the public health, the public safety, the public convenience is involved, and the judge, to whom application for the writ is made, exercises but a wise discretion when, instead of granting the order instanter, or on the ex parte showing of the applicant, he directs the party against whom the writ- is invoked to be notified and cause shown, if any there be, why the writ should not issue.

And when the matter comes up on rule thus taken, while a trial in full on the merits should not be gone into, nor latitude of testimony allowed, still the defendant, in such a case like the present one, should be permitted to make such á showing by answer to the rule and such substantiation of his answer as will enable the court to act within the limits of a sound discretion in granting or withholding the injunction.

For instance, it was proper for the city, answering the rule to show cause, to set up that if was merely seeking' to open a public sweet which was obstructed by plaintiff’s fences, that the ground forming the street had been, prior to plaintiff’s claim of ownership and poses•sion, duly dedicated to public use as a street, or legally expropriated for such purpose and laid out as a street, and that the proper municipal authorities had ordered the obstructions removed and the street •opened.

This could all be &Jiown by documentary evidence annexed to and made part of the answer to the rule, and if the, documents are authentic, or if not, if they be properly verified, and if they show the ■state of facts described, it would be to exert a wise discretion on part •of the judge not to fetter the city by injunction in the exercise of its police powers in subservience of the public convenience.

Wo hold, therefore, that there was no error on part of the lower .judge in directing the city to show cause before granting the order for injunction, and in permitting the city to malee answer to the rule and exhibit the ordinances under which its ag-ents were acting.

But more than the council ordinances directing the City Engineer to lay out the lines of Bruxelles street, and directing the Commission- . er of Public Works to remove the wire fences and open the street, should have been shown by the city in reply to the rule.

The ancient or early laying out of the street, or the dedication of the ground forming it to public use for street purposes, or the donation or expropriation of it for such purposes, or something similar, ■should have been exhibited.

The mere declaration by a Town Council that a certain street exists and directing its officers to open the same, cannot operate to give the right of entry to its agents for that purpose as against private rights .asserted on the basis of ownership and actual physical possession.

We must hold, therefore, that the city made an insufficient showing as against the demand for preliminary injunction, and, accordingly, that plaintiff (relator) is entitled to the order he applied for.

But all the rights of the city are reserved to present its case fully on the trial of the merits.

Let peremptory writs of mandamus and prohibition issue as prayed for, at the costs of the City of New Orleans.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,224.
    Monroe Mercantile Company, Limited, vs. Mrs. H. M. Elder, Administratrix.
    Syllabus.
    It is again affirmed that Section 2 of Act 191 of the Acts of 1898, in declaring that the party cast in the Court of Appeals, or other person in interest who may feel aggrieved by the judgment rendered, shall in any case have the right to bring the cause before the Supreme Court for its review and determination, goes beyond the constitutional intendment, and, as far as it does, is not to be followed. The ruling in Toole vs. Minge, 50 La. Ann., 748, adhered to.
    IN BE Monroe Mercantile Company, Limited, applying for certiorari or writ of review, to the Court of Appeals, Second Circuit, State of Louisiana.

      E. T. Lamhin for petitioner.
    Submitted June 13, 1899.
    Opinion handed down June 19, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The suit upon which this application is predicated was an ordinary action for debt against the succession of Moses Elder, deceased. It sought to recover an amount alleged to be due on open account for goods, wares and merchandise sold and delivered and advances of money made, and to recover a further sum represented' to be due as tbe proceeds of certain cotton alleged to have been sold by Moses Elder shortly before his death and not accounted for.

Plaintiff sues as transferee of the claims.

Defendant denied any liability whatever, and then averred that if . the succession of Elder ever owed the debts, the same bad long ago been extinguished by compensation.

The administratrix then reconvened for a balance of indebtedness-alleged to be due the succession of the deceased by tbe Moses Elder Company, Limited, of which plaintiff corporation is the successor.

The District Court gave judgment rejecting plaintiff’s demand and dismissed defendant’s plea in reconvention as in ease of non-suit.

On appeal to the Circuit Court this judgment was affirmed, with certain reservations to plaintiff.

Whereupon this application for writ of review under Art. 1Q1 of the Constitution of 1898 is made, and in support of same, and in avoidance of the judgment of the Court of Appeals complained of, plaintiff assigns as errors the following:

“1st. Error in holding that the allegations of plaintiff’s petition will not, under the evidence, support a recovery against his succession for money had and received by Moses Elder as the representative of the plaintiff company, and appropriated by him.

“2nd. Error in holding, therefore, that it was not necessary to pass on the question as to whether or not the amount so alleged to have been received by Moses Elder was compensated by the amount alleged by defendant to be due to Moses Elder by the plaintiff company.

“3rd. Error in holding that the open account sued on by the plaintiff company was compensated by the open account alleged to be due the succession of Moses Elder by the said company, the former having been created subsequently to the death of Elder and while his succession was in course of administration.

“4th. Error in holding it unnecessary to determine the question as to whether or not the amount due on open account by the plaintiff company to Moses Elder was sold at administratrix sale on January 29th, 1898, as set up in the plea of estoppel by plaintiff, and in not holding that the said account was sold as alleged.”

Plaintiff’s counsel, referring in his application to Sec. 2 of Act 191 otf the Acts of 1898, evidently thinks that in any and every case decided by the Court of Appeals, the party cast, or any other person in interest, aggrieved by the judgment, may bring the case before this court, under Art. 101 of the Constitution of 1898, for its review and determination.

This is a mistaken view.

In Toole vs. Minge, 50 La. Ann. 748, and in other cases subsequent thereto, interpreting the Article of the Constitution referred to, we indicated the character of the cases with respect to which only would application for the writ of review be granted. See also 50 La. Ann.. 1349.

. After the decision in the Minge case, but before it 'had come to the knowledge of the profession generally, the legislature enacted Act 191 of 1898. Construing this act and determining the effect to be .given to it-, this court said, in the Brown Shoe Company vs. Hill & Bro., decided last April (51 La. Ann. 920) :

“Section 2 of that act, in declaring that the party cast in the Court of Appeals, or other person in interest who may feel aggrieved by the judgment rendered, shall, in any case, have the right to bring the cause before this court for its review and determination, goes beyond the constitutional intendment, and, so far as it does, is not to be followed. * * * In so far as the legislative interpretation of the constitution conflicts with the judicial interpretation thereof, it is familiar doctrine that the latter prevails.”

The application now before us, neither in its law or facts, presents such a special ease as that contemplated by the ruling in Toole vs. Mingt?, and were we to grant the writ and bring up the case for review, it could be only upon the hypothesis that the constitution intended to give a further and additional right of appeal to litigants who may be cast before the Court of Appeals. This, clearly, was not within the contemplation of the framers of the constitution.

It is, therefore, ordered that the application for the wit of review be denied.


author: Monroe, J.

text:
    No. 13,162.
    Ed. Duncan vs. St. Louis, Iron Mountain and Southern Railway Company.
    Syllabus.
    1. In an action in damages against a railroad company for loss of life by a brakeman, it must be alleged and proved that the Injury was the result of the failure of the defendant to exercise that degree of care and diligence, for the protection of such brakeman, that their relations required.
    ■2. The allegation that the death resulted from the derailing of the cars by reason of bad condition of track, consequent upon rotten crossties and missing spikes, is sufficient averment of negligence, but the failure to establish the truth thereof does not throw upon the defendant the burden of accounting for the accident.
    APPEAL from the Fourth Judicial District Court for the Parish ■ of Grant. Machen, J.

      Young & Whitelaw and W. 0. Roberts, for plaintiff and appellant,

      Hudson, Potts and, Bernstein, for the defendants and appellees.
    Argued and submitted May 30, 1899.
    Opinion handed down June 12, 1899.
    Decree reversed, judgment amended and rehearing refused June 29, 1899.
   The opinion of, the court was delivered by

Monroe, J.

Plaintiff as the surviving parent of James Duncan, claims $30,000, as damages, for the loss of the life of his son through the alleged negligence of the defendant, by whom the latter was employed as brakeman; the specific negligence charged consisting of a failure on the part of the defendant to provide a sufficient number of sound ties to hold the rails upon the track, as a result of which, it is alleged, that the track spread beneath the cars in the train upon which the said James Duncan was discharging his duties, and said «ars were derailed, overturned, and wrecked, and said Duncan killed.

The evidence shows that plaintiff’s son was employed by defendant as brakeman; that whilst ho was in the discharge of his duties, upon a train going from Rochelle, or Little River, to Georgetown, in Grant parish, three of the cars in the train were derailed, overturned, and wrecked, and that he was crushed to death beneath them. The train consisted of fifteen or sixteen ears, of which about half, being those in front, were empty, flat cars, and the other half, being those constituting the rear of the train, were box cars, some, if not all, of which were loaded. The speed of the train, at the time of the accident, was about twelve miles an 'hour, the track, at the place where the wreck occurred, was straight, the road-bed level; and filled about twenty inches, the weather was fine, the time at which the accident occurred was about half past ten o’clock on the morning of April 19th, 1897, and the point at which it occurred, was about one and a quarter, or one and a half, miles south of Little River, being nearly midway between that station and Georgetown. The section foreman and hands who were at Little River, arrived upon the scene, as did also some persons from the neighborhood, within half an hour. ■ The roadmaster, who was at Georgetown, reached the spot about fifteen minutes later. The track was cleared within about two hours, the engine, which had not been derailed, coupled, on to the ears which had remained on the ti’ack— some twelve or fourteen in number — and moved them away, and tiie question of the cause of the accident is left for determination.

The petition sets forth that the ties were rotten, the spikes consequently loosened, insecure in their holdings, or out entirely, the rails, therefore, without sufficient support, and that, as a matter of fact, the • cars were derailed by reason of the spreading of the track, resulting from these conditions. The question to be determined is therefore-narrowed down, primarily, to the single issue, were the cars derailed by reason of the spreading of the track ?

Matthews, a witness for the plaintiff, testifies that he reached the - scene with the section foreman, twenty-five or thirty minutes after the accident, and before anything had been done toward clearing away the track or removing the wreck, -that one-rail was bent in the-middle, perhaps a foot out of line, and was two feet off the track, except- at one end which rested on the ties, hut had no spikes in it; and' that- the other rail was torn loose from its fastenings. He says that he has no experience in railroad work, except getting out ties, but is very positive in the opinion that the wreck was caused by rotten ties and loose, or missing-, spikes. Pie also testifies that there were a number of persons present, including the section foreman, Tully, and that they all saw the condition as he described it.

This witness is a young man, twenty-two years of age, who also testifies that some three days before the accident, in question he passed over the locus in quo on a hand car, with two of the section hands, and; that at the exact spot where the accident subsequently occurred, the hand car was derailed by reason of the spreading of the track, and ran along between the rails; that he and his companions consumed less than five minutes in replacing the handcar, and went on their way; that he never mentioned the circumstance to the foreman of the section or to anyone else, except at home; that he did not mention-it at the discussion which took place at the scene of the accident, as • to the cause which liad brought it about, either to the foreman or to • anyone else, and that he was unable to remember the names of the • men who were with him on the hand-ear, but knew that they had gone ■ away. Later on, he recalled the name of one of them,, as Gilmore, but was in error in stating where he could he found. This testimony was given on. the trial, before the jury. Gilmore’s testimony had previously been taken under commission, but, as nothing appeal’s to-have been known about the hand-car incident, until Matthews testified upon the subject, Gilmore had not been interrogated concerning it. lie, Gilmore, however, testifies that he reached the scene of the accident about twenty minutes after it occurrred, being one of the labor-. ers, or section hands, and assisted in clearing away the wreck; that the track was in good order when the accident occurred, and that “he only observed a few ties that were a little rotten at the ends, but not enough to hurt anything.” In answer to the interrogatory: “Did the rails spread where the wreck occurred,” he says: “No.” In .-answer to the-cross interrogatory: “If you state that the ties and .track wore in good condition at and before the wreck occurred, -please explain why it was necessary for you to go to this point and make any repairs after the wreck occurred?” he says, “The track was damaged by pulling cars off the track in clearing the wreck.” In answer to the cross interrogatory: “Did you ever have any occasion to notice this spot at any other time in your life except when you went there to repair the wreck,” he says: “No, never did.”

The evidence shows without contradiction, that there were two passenger trains and ten freight trains passing over the road every day, so that, between the time of the hand-car incident and the accident out of which this suit has arisen, between thirty and forty trains must have passed over the point where the track is 'said to have spread beneath the weight of the hand-car. It further appears, that the hand-ear could easily be lifted by four men, whilst the locomotives, drawing the trains referred to, probably weigh forty tons, the weight of the passenger and freight cars not being given. It further appears that Matthews lived within seventy-five or a hundred yards of the road and knew that it was constantly used by passenger and- freight trains.

! .Under these circumstances, it would be more charitable to believe that the hand-ear incident, as related by him, never took place. We might understand that three men could deliberately plan the derailment of a train, for purposes of robbery or of revenge. But that any three men can he found, met together without purpose or design, who would be willing to keep to .themselves, knowledge of a misplaced rail, on a track used daily and almost hourly for the transportation of human beings, seems incredible. And all the more so when it appears that two out of three are said to have been persons whose duty it was, by reason of their employment, to make the road safe.

Nor does it seem to us to accord with probability that, when the .accident occurred which cost Duncan his life, and Matthews and Gilmoro and Tully, the foreman, (with whom Matthews went to the scene of the wreck), were upon the spot, and Matthews recognized it as the identical place at which he and Gilmore had 'been derailed, upon the hand-car, only three days before, not a syllable should have been uttered by him upon the subject. And more remarkable still, perhaps, is the fact that thirty or forty trains should have been able, in the meanwhile, to pass in safety over a track which had spread beneath a weight which four men could easily lift.

Another witness for plaintiff is R. J. Bruce, an uncle of Matthews. He testifies that he has nothing, is doing nothing, and has been so ■engaged “all this year.” lie reached the scene of the wreck about two liours afterwards and remained there as a looker on, until the track was cleared. He says that there were rotten ties at the place where the wreck occurred, and that the north end of a rail on the east side of the track was moved out, and that “the rail was crooked some and twisted;” and that new ties and another rail were put in before the cars were allowed to pass over the track. He also says that he did not examine the track closely, and could not say what caused the wreck.

Mr. Price, another witness for plaintiff, testifies that, in his opinion, the road, about where the wreck occurred, was in a bad condition; that he would say ihat about one fourth of the ties were rotten and that there were, along there, several “0 out,” or rejected, ties in the track, and he explains that such.tics are rejected and not paid for by tho railroad' company, because they are too small, or rotten, or are “winding,” or not hewed straight. He further gives it as his opinion that a road may be perfectly safe with ono-fourth of the ties rotten, if the rotten ties are not collected together, but says that he knows nothing about the construction or maintenance of a railroad, and does not consider himself competent to judge whether a road is good or bad. lie also says that the “0 out” ties which he noticed in the roadbed were ties which he had tendered to the defendant, and which had been rejected and not paid for, and that he considered them good when he tendered them. In answer to the question (referring to the condition just after the wreck) “did you see where the rails were spread any ?” he says: “If my memory serves me right, one end of one of the rails was knocked o-ut of place,” hut he says that he had no interest in paying any attention to the wreck.

De Haven, the engineer, who was in charge of the locomotive of the wrecked train, testifies that the ties at the place where the wreck occurred, were sound, that they did not take any out that he knew of, and that he. supposes they put in two or three, or half a dozen, new ones. He also says that the rail on the right hand side was bent, and that they put in one new rail. On being asked, however, “are you positive that a new rail was put in at this wreck on the day of the wreck,” he says: “I am not positive, but I know they put in some iron. They took out some iron in order to put down more ties.” He-says further that he does not know what caused the wreck, that the-track was in perfect order when the engine passed over it, and that the ties were sound where the cars left the track.

As against the testimony of these witnesses, which is about all that we find in the record .favorable to the plaintiff’s view of the ease, we find that of Bird, a citizen living near by, Pearson, the conductor,. Bolen, the fireman, Tully, (he fortunan of the section, with Gilmore and Slover, members of his crew, all of whom were on the spot when-the accident occurred, or else reached there within half an hour. We have also the testimony of Thornton, the road-master, who reached the scene -a. few minutes later than Tully; and Pally, the train-master, vho, with Nowell, Miller. T)e Priest, and Rogers, reached (here the next morning. We find also the testimony of W. M. Tully, in regard' to the character of the road.

From this it appears that it was the particular business of Tully, as foreman of the section upon which the accident occurred, and of Thornton, as road-master, to clear the road, in order that traffic might be resumed with as little delay as possible, and also carefully to investigate and report upon the causes of the wreck. Pally, as train-master, had a general supervision of the rolling stock, and perhaps of the road, which imposed upon him the obligation of removing or providing for the wrecked cars, -which it was the business of Thornton and Tully to get off the track. Yowell was foreman of the wreckers, with his crew, consisting of Do Priest, Miller, and Rogers, car repairers.

Pearson, the conductor, Bolen, the fireman, Bird, Tully, Gilmore, Slover, and Thornton, all testify positively that the track had not spread, and that when the damaged cars were removed, the engine, which, had never left the track, passed over the place from which the fiat cars had been derailed, and was coupled to the cars on the other side; that no new ties or rails were put in that day, but that, some four or five days afterwards, a few new ties were put in, and another rail was substituted for one of those which was in the track, for the reason that the latter had been bent in pulling' the wreck off the track with the locomotive. These witnesses vary a little as to what was done, or whether anything- was done to the track after the removal of the wrecked cars and before the locomotive passed over.

Thorton was the ranking and responsible official on the spot; he says:

“I was about a mile south of where the wreck occurred. Well I went there immediately to the wreck, and commenced clearing' the track. In clearing the track, I bent a rail a little, in clearing those broken cars off the track, so we could get the track clear for traffic as quick as possible. There was no need of bending that rail or of breaking these ties, if I had taken time to do so, but I was in a hurry to get the. track clear' — and, how the ends of those ties got broken — they got fast with the trucks of the cars and bunched the ties. That was the cause of the rail bending- and breaking part of the ends of the ties off. * * *

“Q. Well now, after you removed the wreck of the cars from the track state what you did to the track before a train ran over it?

“A.' Well there was but three or four ties hunched. I cleared the dirt out from between those ties, and placed them back where they belonged. Then all trains ran over it. That Vas all I done.

“Q. Did you remove any ties from the track.

“A. No, sir; not that day.

“Q. Did you place any new ties in the track at all?

"A. No, sir.

“Q. At that point?

“A. No, sir; at that point.

“Q. How many trains ran over that track before any new ties were placed in it?

“A. To the best of my information, I had the foreman to place some ties in there about four or five days after the wreck, and during that period, there must have been forty or fifty trains that passed over that part of the road. * *' *

“Q. Did you place any new rails in that part of the track before any trains passed over it?

“A. No, sir.

“Q. Did you place any there at all, and if so, why and when?

“A. About the time I put in those ties, about .four or five days after the wreck.

“Q. Why?

“A. Well I told the section foreman, Tully, that the superintendent would be down in a few days, and that he had better take out those four or five ties that had the ends torn off, and the bent rail. ,1 did not want the superintendent to see it, it would look had.”

lie also testified that he critically examined the place at which the cars left the track, and that the ties were perfectly sound; that the rails were in position, and that the wheels upon one side had jumped over the rail and for a distance of thirty-five feet, the flanges of the wheels of the derailed car, or cars, had cut deep marks in the ties, the marks being upon the out-si do. of the one rail and upon the inside of the other, corresponding with the position of the wheels of the cars.

This testimony is absolutely corroborated by Tully, the section foreman, and is corroborated, in the main and essential particulars, by Bird, Pearson, Gilmore, and Slover, all of whom testify positively that the track was not spread. Pally, the train-master, testified that ho went there for the purpose of investigating the cause of the wreck, that he found where the cars first got off the track by the marks made by the flanges of the wheels in the crossties, which marks ran for thirty-five feet on the outside of one rail and on the inside of /the' other.

W. M. Tully testifies that he had been foreman of that section about eighteen months before and had devoted a year to renewing the ties between Little River and Georgetown, and that the road was in good order.

The testimony of Yowell, De Priest, Rogers and Mailer, constituting the wrecking crow which arrived next morning and took charge of the wrecked cars, is, in general, that as far as they observed, the track was in good condition.

And this is a fair summary of all the. pertinent testimony in the ease.

That given by plaintiff’s witness, Gentry, hardly bears upon the point at issue. It is not surprising that during his employment, as section hand, his attention should have been attracted to the rotten ties, since, the repair of the road required the removal of ties of that character and not of sound ties. And, whilst his evidence shows that there were rotten ties to be removed, it also shows that the defendant had a gang of mem regularly engaged in that work, and in this particular the testimony of Gentry is corroborated by that of Price, who furnished ties, and of the two Tullys, and others; so that, considering that the road was-' not more than six or seven years- old, it would seem to have been-moderately well looked after. Mr. Gentry’s opinion as to its safety,in view of liis frank statement that he did not know enough about railroads to give an opinion, might have been omitted without prejudice to the record.

The testimony of the witness Matthews, we think, for the reasons which have been given, proves too much. Bruce is careful to state, with regard to the misplaced rail which attracted his attention, that the north end of it seemed to be pushed out, and that it was bent, but as we understand him, the south end remained in position. As the-train was moving south, the fact that the north end of the rail was-pushed out would not seem likely to derail a car, since the rest of the rail, with the. south end in position would remain as a guide until the next rail is reached. There are, however, possibilities of all kinds in such cases and we leave this testimony without further comment.

Upon the immediate question of fact — were the rails spread at the point where the wreck occurred? by far the greater number of witnesses testify in the negative. They, and the witnesses! who testified in the affirmative, were heard by the jury and the judge in the court a qua, and both jury and judge seem to- have accepted the version of those who testified in the negative. We can only say that the evidence-which wo find in the record does not- lead us to a different conclusion. The witnesses for the defense being more numerous, and, as far as we-have been able to judge, at least as worthy of belief as those of the plaintiff, there are no circumstances disclosed which would justify a conclusion adverse to that which this preponderance of evidence sustains.

Tt. is true that the defendant does not- account for the accident, save by theories propounded by one or two of the witnesses, but it was not, in the case presented, bound -to do so, whatever might have been ite obligation, had the person injured been a passenger, or perishable freight, instead of an employe. A bmkeinan accepts the risks -incident to liis employment and is not insured itgainst them by his emiployer. One of those1 risks lies in the possibility that the train upon which he is working' may bo derailed under conditions which can.not be forseen or guarded against by the exercise of reasonable care -.and diligence. There is nothing in his relation to his employer, which relieves him of the obligation, of alleging and proving, as a condition precedent to the recovery of damages, not only that he has been injured, but that he has been injured through his employer's negligence, that is to say, through the failure of his employer to exercise that degree of care and diligence for his protection which their relations require. The plaintiff in this case made that necessary .allegation, for there is no doubt that a railroad company is bound, as well to its employes as to passengers, to keep its road-bed and track in good condition, but there has been a failure in the proof. And this case differs from those to which we have been referred in that jespect.

In Rutherford vs. Railroad Co., 41 Ann., 793, this court said:

-“The evidence shows to our entire satisfaction that the accident was .the result of a defective condition of the road at the point where the accident occurred, owing to the rotten condition of the cross .ties,” etc., etc.

And so, in McFee vs. Railroad Co., 42 Ann., 795, the report of ■the conductor to his superior officers, which was called for and filed in evidence, stated the cause of the accident to be “"Bad track, rotten /cross ties, and chair off rail.”

And this court said:

■“An analysis of the testimony has resulted in convincing us that the answer in the conductor’s accident report is correct, etc., etc. It is corroborated as to its correctness by a decided preponderance of testimony.”

We have no such report before us, and we find that the preponderance of testimony negatives the charge that the accident, in the instant case, was caused by bad track or rotten ties.

The judgment appeal from must therefore be affirmed.

0.\ Application nor Remearlxo.

In this case, a careful review of the evidence, and a reconsideration of those facts which are undisputed, has led us to the conclusion that the plaintiff ought to be allowed a further opportunity to establish the claim which he malms, and that the judgment of this dqurt should be one of non-suit, rather than a final judgment rejecting tlie demand. Wo deem it unuecesssary, however, to grant a rehearing in order to effect this change.

It is therefore ordered, adjudged and decreed, that the judgment heretofore rendered in this case be set aside, and that there be now judgment amending the judgment appealed from in so far as to order that plaintiff’s demand be rejected as in case of non-suit.

It is further ordered and decreed that in all other respects said judgment be affirmed, the costs of the appeal to be borne by the defendant and appellee.

Rehearing refused.


text:
    No. 13,198.
    M. L. Silverman vs. St. Louis, Iron Mountain and Southern Railway Company.
    Syllabus.
    1. Where merchandise is shipped in apparent good order and is claimed to have been damaged, whilst in the possession of the carrier, under circumstances which render the carrier liable, the burden of proof rests upon the party seeking to recover to show, at least, that damage has been sustained.
    2. The measure of damages in such a case is the difference between the value of the goods in their damaged state, and their value at the place of destination had they been delivered in good order.
    3. Where the shipment consists of a number of boxes of assorted merchandise, damage to some of the boxes does not entitle the consignee to reject the entire" lot, and recover, as for total loss. The doctrine of abandonment as for total loss does not apply to contracts of affreightment.
    4. When the consignee refuses to receive any part of the shipment, or to cooperate in examining the goods, and claims reimbursement as for total loss, the carrier will not be held guilty of “converting" the goods, by reason of calling in disinterested and competent persons and having broken packages re-packed, and unbroken packages opened and examined in order to ascertain the character and condition of their contents.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, 3.

      A. A. G-unbi/ for Plaintiff and Appellant.

      Hudson, Potts and Bernstein for the Defendant and Appellee.

      Argued and submitted May 29, 1899.
    Opinion handed down June 22, 1899.
    Rehearing refused June 30, 1899.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff sues for the alleged value, of certain goods-shipped over the defendant’s road, and for other loss and damages said to have been sustained in connection with said shipment, and resulting, as he claims, from- defendant’s negligence. The aggregate amount claimed is $5,389.30, made up of the following items, to-wit: Cost price of goods, $3,890.46; ten per cent, advance thereon, as the-value at the time of shipment, bringing the claim up, according to the petition, to $4,389.50 (this, however, is an error in calculation,, as 10 per cent, added to $3,890.46 would make $4,279.50, and not $4,389.50); three months rent of store and clerks hire, 25 por cent, loss of profit on goods which he would have sold, personal expenses and loss of time, etc., $1,000.00.

The answer,, denies, generally and especially, the averments upon which the claim is based.

The facts, as we find them from the evidence in the record, are as follows: The plaintiff had been in business in 1897, in Harper, Kansas, where he remained four weeks; he then moved to Alva, Oklahoma, where ho stayed ten weeks; he then shipped most of his unsold stock to Conroe, Texas, where he and his brothers were engaged in business, whilst he himself took the rest of the goods to St. Louis. Sometime in 1898 he shipped this balance of stock, with some other goods that he had collected whilst in St. Louis, to Monroe, in the parish of Ouachita, where he rented a store, and engaged in business for a few months, during which time he received additional goods from St. Louis, and made sales — selling, as he says, goods which cost him $400.00, for $600.00.

This may have been the ease, hut no one could know it but himself, as he kept no books, and there, were no cost or selling marks on the goods, and no prices were fixed, except, by him, and that for the purpose of each transaction. The stock consisted of clothing, shoes, “gents’” furnishing goods, notions, and cheap jewelry, etc. It was a cheap stock throughout, largely made up of shop-worn goods, intermixed with men’s and women’s second-hand wearing apparel. It is true that the plaintifE denies that he had any second-hand goods, and' is supported in this by Gumbiner, Ms clerk, but the evidence in the record, taken as a whole, convinces us that he had.

Upon October 4, 1898, having- packed his stock in thirty-six boxes, lie shipped it to. Columbia, in the parish of Caldwell, where he had rented a store for the months of October, November and December, at ten dollars per month, paying one month’s rent in advance. The boxes readied Columbia safely upon the morning- of the 4th, and the plaintiff, with his clerk, arrived in the evening of the same day. He took lodgings at a hotel, and the next morning, October 5th, was told by his landlord that the car containing his goods had been broken open during the preceding night and some depredations committed upon his goods. ITe, thereupon, went with his clerk to t-lie depot, and found that he had been correctly informed. The depot is situated in a cut in a hill, and, in rainy weather, is not convenient of access because of the mud which forms around it. It is the custom, therefore, to leave cars, which are to be unloaded, at a point, on the switch, from two hundred and fifty to three hundred feet south of the depot, where it is dryer and more accessible. The ear containing plaintiff’s goods had been left there, with the doors slightly fastened by a seal (being a wire twisted through staples, 'and having its ends fastened together with a small piece of lead), and without any watchman. During the night it had been broken into by some unauthorized and unknown-persons, and eight of the boxes containing plaintiff’s goods had been opened, and their contents disturbed and removed; two of said boxes had been thrown out of the. car, whilst the disturbed goods were scattered about on the ground and in the car. The plaintiff did not examine the goods to ascertain whether they were injured, or enter the car, or look into it, for the purpose of finding out how many boxes liad been opened; nor did lie make any attempt to ascertain what goods, if any, were missing. Tic1 stayed at the depot hut a few infinites, informed the agent that he would not receive the goods — • returned to his hotel; and, in the afterno-on, went with his clerk, back to Monroe. Nor did Gumbiner, the clerk, get- into' the car, or handle the goods, to see whether they were damaged, and, though he testifies that, ¡is* far as he could see, the boxes had all been opened, he also testifies that he does not know whether he would have noticed it, if twenty-six of the thirty-four boxes had remained unopened. Other testimony upon t-he subject, that of Rush, the agent; Nelson, the section hand, and Clark, a young member of the. bar, who were on the spot on the morning of October 5th, and of Ranks, Waggoner, Peril stein, and Clark, who subsequently examined and inventoried the goods, leads us to the conclusion that- there were only eight of the boxes opened, and that whilst their contents were somewhat scattered about, they were not appreciably injured. There was no mud, and the goods, such as coats, clothing, shoes, etc., were not hurt by being thrown on the dry ground, or upon the floor of the car. Upon plaintiffs refusal to accept the goods, the agent placed a man in charge of them until he could get instructions from his superior officer, and, having received such instructions in the course of the morning, he had the goods repacked and the boxes numbered so as to distinguish those which had been opened from those which had not. In repacking, he found that he was unable to get all the goods into the boxes from which they had been taken, and he made use of two additional boxes — a starch box and a cracker box, which he says were small. Some of the paper boxes which had held shoes, having been taken out and scattered about, were burned as rubbish. In this connection it may be said that the evidence shows that the slock was altogether irregular, and the shoes found in boxes which came out of the broken packages, arid also those found afterwards in the packages which had not been broken into, were not packed with any uniformity, or with any regard to the proper cartons in which they were supposed to have come from the manufacturer.

Upon the same day upon which all this occurred, the town authoiities declared quarantine against the world for the purpose of keeping out yellow fever, which was supposed to he prevailing in some other places. So that the plaintiff having returned to Monroe, was unable, or supposed he was unable, to get back to Columbia. ITe placed liis case in the hands of counsel who now represents him, however, and ii was, by him, brought to the attention of the counsel for the railroad company, at whose request the plaintiff prepared a detailed list of his goods, and placed a valuation on them. The company secured the services of a detective, who made his way, past the quarantine, into Columbia, hut, whilst it is said that he obtained some information as to the depredators, it was insufficient to satisfy the Grand Jury, and there was no prosecution. Their identity, and their motives, are, therefore, left to conjecture. The counsel for the road, then, upon October 22nd, notified plaintiffs counsel that the road was ready to deliver the goods, and received, in reply to his communication, a letter from the plaintiffs counsel, dated October 29th, declining to receive the goods, and insisting upon the payment of their value as per the statement which had previously been submitted, as also upon payment of other damages claimed. About this time, October 29th, the Columbia quarantine was raised, and an agreement was arrived at, by the respective counsel, to visit the scene of the trouble, together, and, if possible, arrange a settlement. The plaintiff was expected (at least by the defendant’s counsel), to have been of the party, but, for some reason, not explained in the record, did not go. The two attorneys reached Columbia in the evening, and, going to the depot, or warehouse, of the railroad company, found themselves in the presence of a number of boxes of assorted merchandise, piled one upon the other, but with no personal knowledge of what ought to be found in them. They, therefore, returned to their hotel, and, upon the following morning, departed as they had come. Defendant’s counsel testifies that ho proposed that disinterested and competent persons should be called in, the boxes opened, the goods examined, and the damage or loss, if any, ascertained and appraised; The counsel for the defendant does not seem to remember this proposition. We are inclined to think, however, that, aside from the general doctrine that the affirmative is the stronger in such cases, the circumstances render it probable that some proposition was made. Otherwise it would be difficult1 to account, satisfactorily, for the journey to Columbia. Either of the counsel might have gone alone, in the interest of his side of the case, but as they went together, and by agreement, and it is admitted that the common purpose was the settlement of the claim, it would seem rather remarkable if no proposition whatever was made upon the subject. Thereafter, one of the attorneys for the defendant notified plaintiffs attorney that he was going to have the boxes opened by disinterested and competent persons, in order to ascertain, as far as possible, what damage, if any, had been done, and he notified the pjaintiffs attorney to be present- in person, or by representative; this suggestion being declined, the plaintiff called upon' Messrs. Flanks and Waggoner, shown to be prominent merchants in Columbia, and upon Mr. Clark, who had had some experience in commercial life, and the boxes were opened and a detailed inventory made of their contents. The witnesses who prepared this inventory testify that, from the ehaiaeter of the goods, and the. condition in which they were found, il'K sc; which had been takeu out, of the boxes had sustained no damage whatever, but were in as good condiiton as those which were in lhe boxes that had never been broken open. Some of the articles produced in the lower court consisted of men’s and women’s wearing apparel, some with the stains of perspiration upon them, some with lining of different ages, and some with other indications of previous use.

The inventory thus made includes a considerably greater number of articles than appear upon the list which the plaintiff had furnished as the basis of his claim, of which the following history is given, to-wit: The plaintiff testifies that when he shipped his goods from St. Louis to Monroe, he made a pencil list of them. After ho reached Monroe, he sold goods and received others, but kept no record of his business, and when lie shipped his stock to Columbia he made no inventory of it. Iiis method, therefore, of arriving at the list furnished by him to his attorney as being a correct list of the articles in the boxes in question, was, to take the list of the goods shipped from St. Louis to Monroe, estimate, from memory, what he had received, and what he had sold after reaching Monroe, and add, and subtract, the same to, and from his St. Louis list. An effort seems to have been made, without success, to got into court the St. Louis list thus referred to, the list furnished to the defendant being a type-written instrument, made in the office of plaintiff’s attorney from dala thus made up and furnished by the plaintiff. As to the manner in which the list was made, and as to the extent of his knowledge concerning the loss or damage for which lie claims compensation, the plaintiff gives the following testimony, to-wit:

“I gave my lawyer a list of the goods, and he made out the list that I swore to. I made the list when I packed the goods in the cases at St. Louis, I refer now to the itemized list. Then I added and subtracted for the estimated business done while I was in Monroe. * * * Yes, the cost prices are truly and correctly noted in the list. * -- * I shipped from St. Louis to Monroe all the goods which aro itemized in this list, and about $475.00 worth more. * * * These goods were shipped at different dates during’ August and September, 1898. These goods cost the amount shown by the list, less $400.00 for goods sold in Monroe. * * * The goods were worth to me the amount mentioned in the said list, with ten per cent, added, as shown in the list. * * * I was damaged altogether; that is for the cost of goods and for the expenses attending their handling. * * * I did not make any new inventory of the shipment to Columbia.

“Q. Can you tell any particular amount of goods sold by you in Monroe, La., or accertain with certainty what goods were shipped by you from there to Columbia ?

“A. No sir, I can’t tell that. * * * I found the car open and the goods were thrown out and piled up, and the ear was standing right near a washout, or gully, and the goods were down in the gully, ■and on the track by its side. My eyes got dark, and I could not see anything. * * * So the goods were useless, even if I would have liked to have done anything; they were not in shape for me to start business. * * * My young man, Gumbiner, was with me at the time. lie got into the ear, while I was there. I did not get into the •car. * * * I did not receive the goods, because it was useless for me to receive them; I could not open up business with such of the .goods as were in merchantable condition; I needed the whole assortment to open up with. * * * I saw the goods as they lay there on that Wednesday morning, but did not handle them; I did not examine them. * * I just saw the goods there piled in that condition, and I did not see any more. * * * I did not examine the goods, and I can not give any item of damage. * * All the boxes were broken open. Mr. Gumbiner said he could find no solid ones. * * *

“Q. Was any of your goods missing, and, if yes, what goods were missing, and their value?

“A. I can’t tell that, as I did not examine them.”

Gumbiner, who the witness thus testifies got into the car and gave him the information as to the number of boxes broken open, says in his testimony: “As far as I could see, every box was broken open, and the goods -were thrown out. I did not get into the car, but I looked in; there was a little loose goods in the car. * * * I do not know whether any of them were stolen or missing.

“Q. Suppiose you had taken stock, would you have been able to have told whether any of the goods were destroyed, lost, missing, or stolen?'

“A. I don’t know whether or not I could have told, I did not see any invoice or books of goods. * * *

“Q. If as many as twenty-six* of the thirty-four boxes had not been touched at all, w'ould you not have seen and noticed it from your ■examination ?

“A. I don’t know; I was not in the car, but I looked in. * * * I did not handle any of the goods on October 5th, nor did I see Mr. Kilverman examine them.

“Q. Are the prices, charged on the list which you have mentioned, fair and reasonable for the goods, or for such goods as were packed and sent by Mr. Silverman to Columbia ?

“A. I will tell you how it is about this; his goods were not marked. 1 am not an expert to judge what the goods were worth.”

The stock consisted of two or three thousand articles of assorted merchandise, some of which had been carried from Oklahoma to St. •Louis, and most of which had been carried from St. Louis to Monroe, before being taken from Monroe to Columbia. Plaintiff was in business at Monroe for two months, during which time he and his clerk wore selling goods, and, now and then, receiving additions to the-stock. Under these circumstances, for him to have carried, in his mind, the mutations of his stock, so as to be able to testify positively as to the correctness of the list upon which he sues, is a phenomenal exhibition of memory, and all the more remarkable as coming from the plaintiff, because his memory seems to be at fault as to some other matters which would appear to be more easily remembered. Thus, Gumbiner was h'is only clerk, in October, 1898, and had been in his employ only three weeks, and it would he reasonable to suppose that the plaintiff would be able to remember the terms upon which he was employed, and the amount of his salary. He alleges, in his- petiiion, that he had employed Gumbiner for three months, at $75.00 per month, and that he was bound to him for that time and amount, and he also swears to it. Gambiner himself testifies that he was employed by the month, at $45 per month, and we infer from his testimony that there is nothing due him.

Being asked when and from whom he purchased the goods enumerated in the list furnished by him, he says: "It was too many to mention from whom I purchased the goods. I can’t recollect them all. They were purchased by me wherever I could buy them satisfactorily to mo. I can not give the dates of the several invoices; I can not give the names of the parties from whom those goods were purchased.” * * *

As we have seen, Gumbiner, who was his clerk at the time, declines to testify as to the value of the goods. Upon the other hand,' Kuhn, who had been employed by him on his arrival in Monroe, testifies as follows:

“There were second-hand goods in this stock. I assisted in opening up the stock when he first came to Monroe; they wore a regular cheap lino of goods. I do not know how such goods are usually bought. There were shelf-worn goods in the stock. Camphor had been, packed with the clothing.”

And this testimony is eorroberated by that of Blanks, Waggoner, Bernstein and Clark, who examined the goods at the depot at Columbia, and also by the goods themselves, produced on the trial in the-court below. It is true that counsel for plaintiff' suggests that the-inferior goods found scattered about the depot may have been, put there by the same persons who broke the boxes open. Accepting -this-as probable, it fails to account for the fact that goods of the same character were in the stock before it left Monroe, and were in the-boxes which were not opened by the depredators.

These being the facts disclosed 'by the evidence, we find no principle.' of law upon which to predicate a judgment for the plaintiff. It may ho conceded that the defendant was at fault for leaving plaintiffs-property in an insecurely fastened and isolated car, with no one to watch it, nevertheless, the plaintiff can not recover, without proving what, if any, injury this negligence of the defendant’s has caused him.

The preponderance of evidence leads to the conclusion that plaintiff’s goods were neither lost nor damaged. As far as we can see, there was no sufficient reason to have prevented his faking possession of t-hem on the morning -of October 5th, and if, in doing so, he had been subjected to trouble and expense, in collecting and repacking, them, the defendant would have been liable therefor. He, however, refused at that time, and has since refused, to receive the goods, or any part of them, or to have anything to do with them, and the defendant was obliged to accept the alternative of taking such 'steps as seemed prudent, for the preservation of the goods thus left on its hands, and for its own protection against the claim with which it was threatened, and .it accordingly collected the goods and repacked them. • We do not understand that, in ease of the loss or damage of part of a lot of assorted goods, the carrier is bound to purchase the whole eon- ■ signment, at the shipp'ar’s price, with expected profit added.

In Henderson & Gaines vs. Ship, Maid of Orleans, 14 Ann., 352,. this court said:

“The packages being stained by water, when delivered, were opened,. and their contents, examined by disinterested and-competent judges, called in for that purpose, who testify they were damaged by salt water’ to such .an extent as to make them worthless, but that they might have produced, at auction, from thirty to forty per cent, of •their invoice price. The plaintiffs have sued the ship for the total value of the goods, as in case of non-deliveay. This course of proceedings is unusal, and not warranted by precedent. The measure of damages is the difference between the value of the'goods in their damaged state, and their value at the port of destination, had they been delivered in good order. Rathborn vs. Neal, 4 Ann., 566. That difference in value ■ should have been ascertained by a public sale to the highest bidder. Greenwood vs. Cooper, 10 Ann., 796.

■“The doctrine of abandonment for u constructive .total loss has never been applied, that we. are aware of, to the contract of affreightment.”

Affirmed in Smith vs. Bark W. H. Wall, 18 Ann., 724.

'In the instant case the plaintiff might have arrived at the extent of -“the damage in either of two ways, but he elected to abandon, as for a -.total loss — a course of proceeding which, as is said in the opinion : above quoted, “has never been applied * * * to contracts of affreightment,” See also Rapp & Mack, Dig. Vol. 2, Nos. 237, 140, 771.

The learned counsel for the plaintiff, 'however, claims that there has been a conversion of ’the property, by reason of the defendant’s having .had the packages opened, and that defendant is liable, for that ieason, for their entire value. It is, no doubt, true that such liability may attach where the carrier improperly, and without legal justification, opens the packages entrusted to him for transportation. But the plaintiff’s case docs not, we think, fall within that category. He had refused to receive the goods, or to examine them, or to have anything -.to -do with them, and was claiming a large sum, as their value, before rthe defendant opened the boxes. The goods were in defendant’s possession, and it was bound to take such action concerning them as would minimize the alleged loss, whether that loss was eventually to -fall upon it or upon the plaintiff.' This obligation involved the exercise of discretion, which we do not consider w-as abused in opening the boxes for the purpose of ascertaining the character and condition of their contents, and, if necessary, taking steps to preserve •them. Rapp and Mack’s Dig., Vol. 2, Nos. 239, 240.

For these reasons it is ordered, adjudged and decreed, that the Judgment appealed from be affirmed.