DocketNumber: No. 1551.
Judges: Ott
Filed Date: 1/28/1936
Status: Precedential
Modified Date: 10/19/2024
Defendant filed an exception of no cause or right of action, which was sustained. Plaintiffs have appealed. *Page 528
In so far as the allegations of the petition are pertinent to the exception, they may be summarized as follows: That plaintiff, Mrs. Nettie Robertson, on the date stated, was driving eastward on Broad street in her said car; that it was so cloudy and dark that she could not see an object approaching from the right or left outside the glare of her headlights; that she approached the crossing of said railroad over said street in a cautious manner and at a rate of speed of about ten to twelve miles per hour; that her lights were burning and she was observing the right of way carefully for any obstructions thereon, and looked both north and south before attempting to cross the track, but was unable to see or hear any train approaching.
She further alleges that a switching crew of the railroad was backing up a train of cars across the street, and the lead car of the train, while thus backing up, ran into her automobile while the front wheels of her automobile were about across the track, demolishing her car and causing her physical injuries.
Plaintiffs charge the defendant railroad with negligence and responsibility for the accident in the following particulars: that the train crew operating said train was violating a rule of the railroad in failing to protect the crossing by stationing a member of the crew at the crossing to signal approaching motorists, in the absence of any flagmen or any automatic signaling device; that the members of the crew saw the car of plaintiff approaching the crossing in ample time to stop the train before striking the automobile, but failed and neglected to do so.
(1) It is negligence for a railroad company to back a train of cars across a street crossing at night in a populous city without any lights or signals on the lead car, or without a switchman, flagman, or other warning device stationed at the crossing, to warn those approaching the crossing of the danger. Maher v. Louisiana Railway Navigation Co.,
Therefore, if we assume as true, as we must for the purpose of the exception, the allegations of the petition that the train crew of defendant in backing these cars across the street after dark without placing some one there to signal traffic, was violating a rule of the company, and if we further assume as true that there were no automatic signaling devices stationed at this crossing by the defendant railroad, it follows that plaintiffs have sufficiently charged the railroad with negligence to set forth a cause of action.
(2) However, we gather from the briefs filed in the case that the exception was sustained principally on the ground that the plaintiff, Mrs. Robertson, shows by the petition that she was guilty of such contributory negligence as to preclude a recovery in that she does not allege that, before attempting to cross the railroad track, she stopped, looked, and listened as she is required to do under the law. She avers that she approached the crossing cautiously and at a rate of speed of about ten to twelve miles per hour; that she looked in both directions, north and south, before crossing the track; that she could not see any train approaching; that she was observing the right of way carefully to ascertain if there were any obstructions thereon. These allegations must be taken as true for the purpose of the exception.
The question of whether or not a motorist, before crossing a railroad track, should first stop, in addition to looking and listening, has given rise to much diversity of opinion in the courts of the several states. Blashfield, Cyclopedia of Automobile Law and Practise, vol. 3, p. 123, par. 1742 et seq. The rule prevailing in a majority of the states, including Louisiana, is that the driver is not required to come to a complete stop before crossing, provided he has his car under such control as to be able to stop immediately, and provided, also, that he has exercised due care in looking and listening for an approaching train.
Some confusion has arisen on this point, in this state as well as the other states and the federal courts, because of an effort to apply a standard of conduct for the driver on such occasions as set forth in the case of B. O. R. R. Co. v. Goodman,
A review of a few of the pertinent cases in this state shows a similar rule. We quote the following pertinent expression on this point by the Supreme Court of this state in the case of Aymond v. Western Union Tel. Co. et al.,
And in the case of Draiss v. Payne, Agent,
In those cases where the plea of contributory negligence of the driver of the car in cases of this kind was sustained, it will be seen from an examination of the cases that the failure to come to a stop, before making the crossing, was not the only reason for holding the plaintiff guilty of contributory negligence. For instance, in the case of Pearce v. Missouri Pacific R. R. Co. (La.App.)
To the same effect was the decision in the case of Noel v. New Iberia N. R. Co. (La.App.)
In the case of Ross v. Mo. Pacific R. Co. (La.App.)
It is unnecessary to burden the record with other cases in this connection as these suffice to illustrate the point under discussion.
Moreover, we find running through all the cases the rule that, in order for plaintiff to be barred from recovery on account of contributory negligence for failure to stop, it must appear, first, that by stopping he could have avoided the accident; and, second, as a corollary to the first proposition, the failure to stop must be the proximate cause of the accident. See Holstead v. V., S. P. Ry. Co.,
Applying this rule to the present case, it appears from the petition that Mrs. Robertson, the driver of the car, was looking and listening, and driving cautiously, but on account of the darkness she could not see beyond the glare of her headlights. Had she come to a complete stop, it does not appear that she could have seen or *Page 530 heard the approaching train any better than she did hear or see it. There was no light on the lead car of the backing train, no other signals by which it can be reasonably inferred that she would have been able to see or hear this train backing up more or less noiselessly, nay, perhaps, stealthily, in the darkness of the night without lights or warning. We are not prepared to hold under these circumstances that her failure to stop was the sole and proximate cause of the accident.
(3) Reference is made to the law regulating traffic on the highways, rule 17, § 3, tit. 2, Act No.
(4) In article 10 of their petition, plaintiffs aver that the train crew saw Mrs. Robertson's car in ample time to stop the train before striking her car, and this failure to stop the train was the sole and proximate cause of the accident. This appears to be contradictory to other allegations of the petition assigning other and further grounds of negligence on the part of the train crew as the cause of the accident. However, in view of the fact that in the next article of the petition, plaintiffs reiterate as the cause of the accident the other alleged grounds of negligence of the defendant, we do not think the allegation in article 10 has the effect of destroying the other allegations of negligence. If there is inconsistency in setting forth the cause of action, it might give grounds for a motion to elect, but certainly would not have the effect of emasculating the petition to the extent of destroying the cause of action set forth in any part of the petition.
(5) Plaintiffs pray for the citation of defendant, for judgment, and for general relief, but do not specifically pray for judgment against defendant. In view of the allegations in the petition and the prayer for citation of defendant, for judgment and for general relief, we think the prayer sufficient to form the basis of such judgment as the allegations and facts of the case may justify.
For the reasons assigned, the judgment of the lower court in sustaining the exception of no cause of action is reversed, and the case remanded for trial; cost of the appeal to be paid by appellee, and the cost of the lower court to await the judgment of the lower court.
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