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until the crowd of boys came running from the base-ball ground to board the moving train, and crossed or occupied the track in front of the outgoing train, and so little in front of it that it is doubtful whether it could have been stopped in time to avoid the accident. The evidence on the last point is contradictory, but, even granting that the boys were on the track when the outgoing train was further off, yet the officers of the latter might bave well assumed that they would succeed in boarding the other train, or otherwise get out of the way in time; and in point of fact all actually did so except young Weeks. Although the petition alleges that the spot where the boy was hurt was where the trains usually stopped for Loeper's park, yet there is some effort to show that the trains were in the habit of simply slowing up, without stopping, for the purpose of receiving or discharging passengers at the base-ball green, and that therefore the boys in thus boarding the moving train were acting on the invitation of defendant, and thus stood under its protection. We have examined the evidence on this point with great care, and failed to establish such custom or habit. It very clearly establishes that when the train had passengers to discharge or receive, either for the green or the park, it stopped, and its stopping place was Loeper's park gate, which on Sundays and picnic days was a regular stopping place, and on other days was a signal station, and stopped there when signaled. No doubt boys from the green did sometimes jump on or off the train as it moved slowly away from or up to its stopping place at the gate; but this was not by invitation of the company, which stopped its trains for the purpose of receiving or discharging passengers at this point, and had the right to expect that such passengers would leave the train while thus halted. On this occasion the train did stop, undoubtedly, and ample opportunity was afforded Weeks to take his passage in a lawful and proper manner. We need not discuss other features of negligence charged against the defendant, deeming it sufficient to show that at the time of the accident Weeks was not in the position which he occupied under any circumstances which made defendant the guarantor of his safety, or exempted him from the obligation of using proper care for his self-protection.
2. This brings us to the question of contributory negligence. The boy Weeks was attempting to board a moving train, which is universally recognized as a negligent and indiscreet act, constituting such contributory negligence as will debar him from recovering for injury received while so engaged. Wood, Ry. Law, 1155; Knight v. Railroad Co., 23 La. Ann. 462; Phillips v. Railroad Co., 49 N. Y. 177; Railroad Co. v. Scates, 90 Ill. 586. In addition to this, he was upon or in dangerous proximity to a railroad track in a position which the authorities universally agree threw upon him the duty of listening and looking and using all his sense to discover and avoid the danger necessarily incident to such a situation. Said the supreme court of the United States in a case much more favorable to the injured party than this: “The failure of the engineer to ring the bell or sound the whistle, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employes was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the track, in order to avoid an approaching train, and not walk carelessly into the face of possible danger. Had she used her senses, she could not have failed by them to hear and see the train which was coming. If she made use of them, and walked thoughtlessly on the track, she was guilty of culpable negligence, and so far contributes to her injuries as to deprive her of any right to complain. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequence of her mistake and temerity cannot be cast upon the defendant. No railroad can be held for failure of that kiud. If one chooses in such a position to take risks, he must bear the consequences
of failure.” .Railroad Co. v. Houston, 95 U. S. 701; 2 Wood, Ry. Law, 1302–1324, and cases there cited; Houston v. Railroad Co., 39 La. Ann. 796, 2 South. Rep. 562. Now, in the instant case, Weeks was not merely crossing, but standing on a track in full view of a nearly approaching train, which rang its bell and sounded its whistle. Everybody else saw the train and heard its signal, and with the slightest use of his own senses he might and should have done so. His failure was attributable solely to his eager absorption in the performance of an act in itself improper, indiscreet, and negligent. Under such circumstances it is impossible to absolve him from the charge of gross contributory negligence, and to cast upon the defendant the consequence of his own fault. It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of defendant, and rejecting plaintiff's demand, at her costs in both courts. Rehearing refused.
GERMANIA SAV. BANK V. PEUSER. (Supreme Court of Louisiana. November 19, 1888. 40 La. Ann.) 1. GARNISHMENT-CLAIM OF THIRD PARTY – PAYMENT TO SHERIFF — APPEAL BY GARSISHEE.
The garnishee admits that he has a specific sum in his hands which he received from the defendant, but alleges that he received and holds it for his mother, and therefore, in answer to interrogatories, denies indebtedness to defendant or possession of any property belonging to him. The mother intervened in the suit, and asserted her right to the fund. On a traverse of garnishee's answers judgment was rendered against him, but simply ordering him to deliver the fund into the sheriff's hands, there to abide the decision of the case. From this judgment the garnishee alone appeals. He has no interest in the matter, and claims none, and the judgment correctly maintains the seizure of the fund subject to the rights of
parties concerned. 2. SAYE-RIGHT OF CREDITOR HOLDING COLLATERALS.
The mere fact that a creditor holds collateral securities does not prevent the principal debt from becoming due, nor debar the creditors from pursuing legal remedies for its enforcement. The pledge might be insufficient or invalid. The rights of defendant or of others interested to require surrender on application of the original securities are not involved in this appeal by a garnishee who has neither right
nor interest. (Syllabus by the Court.)
Appeal from civil district court, parish of Orleans; A. L. TISSOT, Judge.
The Germania Savings Bank sued out a writ of attachment against George Peuser, making Gustave Peuser garnishee. Mrs. Peuser intervened. Judgment ordering the garnishee to turn the fund in controversy over to the sheriff to a wait the final decision of the suit. The garnishee alone appeals.
F.C. Zacharie, for appellant. Braughn, Burk, Dinkelspiel & Hart and Bayne & Denegre, for appellee.
FENNER, J. Plaintiff, a creditor of George Peuser, an absconding defaulter, took out a writ of attachment against him, under which Gustave Peuser was made a garnishee. In answer to interrogatories, Gustave Peuser disclosed the facts that, on the eve of his flight, his brother George Peuser had transferred to his name certain shares of city railroad stock, which he had sold, and received therefor the price of $3,300. This sum, he says, “I subsequently deposited in the Germania Savings Depository in my name, under an agreement with George Denegre, attorney of plaintiff herein, subject to the decision of my mother's rights thereto in this case.” He admits that the money is thus in his hands; that it was placed in his bands by George Peuser, who at the time owned the stock from the sale of which it was realized; and he does not pretend to have the slightest claim upon it in his own right. But he denies that it is due to George Peuser, and says that it was placed in his hands for their mother, to whom he says it belongs. Mrs. Peuser has intervened in the
case, and is championing her own rights. As the garnishee denied any indebtedness to the defendant and the possession of any property belonging to him, it was, of course, essential that plaintiff should traverse the answers, because upon their face, in the absence of any service on the defendant or any seizure of property, the plaintiff's suit necessarily fell. Pennoyer v. Neff, 95 U. S. 714; Laughlin v. Ice Co., 35 La. Ann. 1184. Accordingly a traverse was filed. The issue was tried exclusively between the plaintiff and the garnishee. When Mrs. Peuser, the intervenor, attempted to take part therein, objection was made on the ground that the question of her right was not involved, and that the decision upon the traverse could not affect her, which ob jection was sustained by the court. The traverse was tried before a jury, and resulted in a verdict and judgment in favor of plaintiff, but simply ordering said Gustave Peuser to turn over to the sheriff the said $3,300 in currency, to be held by said sheriff to await the final decision of this suit, etc. The only possible effect of this judgment is simply to maintain plaintiff's seizure of the fund, and to hold it in court subject to the final decision of the rights of the claimants thereon. A contrary decision would have liberated the fund and have thrown plaintiff out of court. It would in effect have been a decision in favor of Mrs. Peuser without trial or hearing. As the matter stands no one is prejudiced. Mrs. Peuser's rights are perfectly preserved. She is not in any degree affected by this decision. Her intervention is before the court, and must be determined before any disposition of this fund can be made. Moreover she has not appealed. The only appellant is the garnishee, and what possible right he can have to complain is not apparent. He claims no interest in the fund. He admits he received it from George Peuser, and he suggests no claim that anybody else has upon it, except his mother. She has asserted' her own claim judicially, and that is the issue upon which depends the disposition of the fund. The garnishee also filed an exception to the effect hat as plaintiff's claim against. George Peuser appeared on its face to be secured by a pledge of amply sufficient property for its payment, the petition set forth no cause of action. Without discussing the question whether, under the circumstances of this case, an exception of this kind lies in the mouth of the garnishee, the exception as such has no merit. The mere fact that a creditor holds collateral securities does not prevent the principal debt from becoming due, nor debar him from pursuing his legal remedies for its enforcement. Duncan v. Elam, 1 Rob. (La.) 135; Lewis v. U. S., 92 U. S. 622.
In this case is in evidence that the title to the securities originally pledged is in contest before the courts. The rights of the defendant or others interested to require the surrender or application of the original securities are not here involved. The garnishee has no right or interest in the premises. Judgment attirmed.
DEIKMAN 0. MORGAN'S L. & T. R. & S. S. Co.
(Supreme Court of Louisiana. November 19, 1888. 40 La. Ann.) RAILROAD COMPANIES-INJURY AT CROSSING-CONTRIBUTORY NEGLIGEXCE.
To recover damages for injuries received from a railroad company it is necessary for plaintiff to prove that the accident in consequence of which the injuries were received was caused by the negligence of the railroad company, and that the plain
tiff was not guilty of any negligence which aided in the accident. (Syllabus by the Court.)
Appeal from civil district court, parish of Orleans; A. L. Tissot, Judge.
Action by Henry Deikman against Morgan's Louisiana & Texas Railroad & Steam-Ship Company, for damages for personal injuries by defendant's train. Judgment for plaintiff, and defendant appeals.
Lerry & Blair, for appellant. Howard Lee, for appellee.
MCENERY, J. The plaintiff sues the defendant railroad company for injuries sustained in consequence of a collision between a train of cars of defendant and a wagon driven by plaintiff, in the city of New Orleans, near 7 o'clock P. M., at the Barracks-Street railroad crossing on March 17, 1887. The testimony, as is usual in cases of this character, is conflicting. But, from a careful and attentive review of the statements in the record, we think the following facts are conclusively established: On the evening of the 17th of March, 1887, about 7 o'clock, the incline engine of the defendant company coupled on to six freight cars for the purpose of placing them on defendant's transfer boat, and began to back them in the direction of the Barracks-Street crossing. This was the only practical way to put the cars on the transfer boat. The train was moving at a reasonably slow rate of speed, not exceeding four miles an hour. The electric light at the crossing gave at the time a sufficient light to make plainly visible for some distance the surroundings at the crossing. There were no obstructions to prevent a full view of the crossing from the Third-District ferry-landing, and the approach of trains from Hospital street, the direction from which the trains came at the time of collision. The ThirdDistrict ferry-boat landed about the time the defendant company's train was moving towards the crossing. Three vehicles were driven from the ferryship towards the crossing. The first two were driven at a comparatively rapid speed, and successfully made the crossing when the train was some 75 feet from them, and approaching them. The third wagon, driven by plain. tiff, was 10 or 12 feet behind the second wagon. The horse was driven on the track, and one wheel of the wagon crossed the first rail of the track. At this time the train was within a short distance of plaintiff's wagon,-some 10 or 12 feet. The flag-man was at the crossing. He fagged down plaintiff's vehicle as he had tagged down ihe other two wagons which had successfully passed the track. The plaintiff failed to heed the signal. The flag-man hallooed to plaintiff to stop or back, and, as he still continued in his course, he seized his horse, and endeavored to get the wagon from its perilous position. The horse's head was turned until the front wheel of the wagon was parallel with the track, and it became fastened, so that it was impossible to get the wagon off in time to prevent the collision, which threw plaintiff from it, and injured him. The train, in consequence of the efforts made before the collision, passed on a few feet, and was stopped. While the train was backing the bell was continuously rung. Every reasonable effort was made by defendant's employes to avert the accident. The signal to stop was given, the brakes applied, and engine reversed. The train-hands were in their positions, and were discharging their duties. There were lights on the top of the train. These were used, as well as the loud voices of the employes, to warn the plaintiff of his danger. All these warnings were given, and the efforts made to stop the train, as soon as it was evident that the plaintiff was in danger; that is, as soon as he had reached the track. The crossing, like others in populous cities, is dangerous. The railroad is bound to take extraordinary precautions for the protection of the public at such places in the management and handling of the trains. Employes of railroad companies must always be vigilant and attentive, and their responsibilities must be measured by the dangerous conditions which confront them; the greater the danger, the greater the vigilance and attention. It would be the grossest carelessness and negligence for a railroad company to fail in any of the require. ments necessary to protect the public at a crossing where persons and vehicles are constantly passing. There is an obligation also on the part of the public to be vigilant and attentive when going over a crossing where passing trains may be frequently expected. Counsel for plaintiff says in his brief: “Of course there can be no question that, if the court finds that the llag-man was there, it was the grossest negligence on the part of plaintiff to undertake to drive by him." We are convinced that the flag-man was at the crossing, and
gave timely warning to the plaintiff. Plaintiff's witnesses prove that a flagman was kept at the crossing before and after the accident, but on this particular night they did not see him there. There must have been some obvious reason for his absence from his post of duty on this particular occasion. The company must have ceased placing a flag-man there, or he must on his own responsibility have quit his accustomed place. Neither of these facts is shown. The plaintiff states that some one hallooeil to him to stop or back, when he got on the track, and that in obedience to this he pulled his horse back. The evidence shows that the borse's head was turned so that one of the front wheels was parallel to the track. Who was it hallooed to plaintiff? The plaintiff does not state who it was. But other witnesses identify the party who hallooed to plaintiff as Fitzgerald, the flag-man, who also seized the horse, and turned his head towards Canal street; thus placing the wheel parallel to the track. The plaintiff did not hear the bell ringing, or the noise of the cars in motion. He did not see the Hag-man or his signals, the light on the cars, or anything to warn him of the approach of the train. The evidence shows, had the plaintiff been governed by ordinary prudence in using his sight and hearing, he would have seen the train in motion, the flag-man at the crossing, his signals in vain efforts to arrest the course of plaintiff. He would have heard the continuous ringing of the bell, and the noise of the train. The plaintiff was evidently paying attention to the wagons ahead of him, and as these had passed in front of the moving train, he thought that he could also do so with safety. After the second wagon had passed, he was warned in sufficient time to prevent the attempt to cross the track. There was no invitation, no neglect of any of the ordinary and necessary precautions, which could have led him to believe it was prudent to make the attempt. There is not sufficient evidence to establish the fact contended for by plaintiff that there was a crack or hole in the track larger and deeper than should have been, caused by the neglect of defendant to repair the same, in consequence of which plaintiff's wagon was unable to be moved from the track in time to prevent the collision. The plaintiff has failed to show that the accident in consequence of which he received his injuries was due to the neglect of the defendant company, and that he was guilty of no negligence which aided in the accident. It is therefore ordered, adjudged, and decreed that the verdict of the jury and the judgment appealed from be set aside, annulled, and reversed. It is now ordered, adjudged, and decreed that the demand of plaintiff be rejected, with costs of both courts.
PHILLIPS 0. BENSON.
(Supreme Court of Alabama. December 4, 1888.) JUDICIAL SALE-REVERSAL OF DECREE-INNOCENT PURCHASER.
A bill to set aside a judicial sale, on the ground that the decree ordering it, though not superseded, had been reversed on appeal, alleged that the solicitor of record of the party in whose favor the decree was rendered was in fact the purchaser. The record showed that the register made a conveyance to B., and reported that B. was the purchaser, and the sale to B. was confirmed. The register testified that T., who bid off the land, told him to make the deed to the solicitor, and call at the bank and get his money. This was denied by both T. and D., who testified that T. bid off the land for D., who paid the register's costs, and had given his note to the solicitor for the purchase money, and that there was no arrangeme it with the solicitor in regard to the purchase. Held, that the sale would not be set aside. Appeal from chancery court, Elmore county; S. K. McSPADDEN, Judge.
Bill by Sarah A. Phillips against John Benson to vacate a sale of land. Decree for defendant. Complainant appeals.
John A. Terrell, for appellant. Watts & Son, for appeilee.
CLOPTON, J. Appellant seeks by the bill to vacate and set aside a sale of land made by the register, August 4, 1884, under a decree of sale rendered