Miller v. Baldwin , 178 So. 717 ( 1938 )

The only theory on which recovery against the defendant can be predicated is, as stated in the majority opinion herein handed down, that where a person, as was the decedent in this case, is killed after having gone upon a railroad track and become incapitated, in a locality which by its nature is so dangerous, the operators of railroad trains running through such locality are charged with the knowledge of the conditions which exist, and must control their trains under a reasonable expectation that a person may be found at any time lying on the track, unable to extricate himself from danger. I agree that a certain class of cases support such a theory under which liability is imposed, but I respectfully disagree with the majority of the court that the facts justify an application of the theory in this case.

I submit that a territory encompassed within "a radius of a mile or slightly more in each direction" from a given point on a railroad track, a mile away from the railroad station in a town of from 3,500 to 4,000 population, with only fifteen to twenty families residing within that area, is not such a locality where there is such common use of the tracks by pedestrians as to hold the operators of a train to the duty of reasonably expecting to find a person lying thereon at 2:30 o'clock in the morning.

I rather believe that the case comes within the second class of cases mentioned in the majority opinion, and is governed by the rule on which the group of cases therein cited were decided. These are the cases of Rogers v. Louisiana Ry. Nav. Co.,143 La. 58, 78 So. 237; Tyer v. Gulf, C. S. F. Ry. Co.,143 La. 177, 178, 78 So. 438; Trotter v. Texas P. Ry. Co., La.App.,146 So. 365; Pinckley v. Texas P. Ry. Co., La. App., 165 So. 504.

I respectfully dissent.