
    (74 South. 627)
    No. 21458.
    BOLNER v. TEXAS & P. RY. CO.
    (March 12, 1917.)
    
      (Syllabus by Editorial Staff.)
    
    Railroads &wkey;>376(l) — Injuries to Persons Near Track; — Negligence.
    Where plaintiff crossed the main track of a railroad along which an engine was approaching in order to speak to the fireman in an engine backing a train along a branch track ten feet fi'om the main track, and, after reaching a place of safety between the tracks, stepped back so close to the main track that the engine thereon struck and injured him, and it appeared that when he stepped back the engine, which had sounded its whistle and was ringing its bell, was too close to be stopped before striking him, no negligence on the part of the railway was shown and plaintiff cannot recover.
    [Ed. Note.. — For other cases, see Railroads, Cent. Dig. §§ 1275, 1278.]
    Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Adolphe J. Lafargue, Judge.
    Action by George H. Bolner against the Texas & Pacific Railway Company. Judgment for the plaintiff, and defendant appeals.
    Judgment set aside, and suit dismissed.
    Howe, Fenner, Spencer & Cocke, of New Orleans, and Wm. I-I. Peterman, of Marks-ville, for appellant. Cappel & Cappel, of Marksville, for appellee.
   PROYOSTY, J.

As plaintiff was on his way to the post office, in the town of Bunkie, to mail a letter, he crossed the track of the Marksville branch of the Texas & Pacific Railroad, and then, 30 feet further, the track of the main line of the railroad. He then had before him, 10 feet further, the track of the Eunice branch of the same road. On this last track a long freight train which was backing slowly intercepted his path. Several persons going in the same direction as he had stopped before crossing the main track, because they had seen a locomotive and tender approaching on the track, and hardly more than 100 yards away. One of them called plaintiff’s attention to this locomotive, and says that plaintiff looked at it and answered that he saw it. This is testified to by several witnesses, but is denied by plaintiff. Be that point as it may, it is not necessary for the decision of the case. Plaintiff’s object in crossing the second, or main, track was to come close to the backing train to speak to the fireman. In doing so he stood in the 10-foot space between the track in front of him, on which this train was backing, and the main track behind him, on which the locomotive and tender were approaching. When this locomotive and tender were about 15 feet from him he stepped back, thus coming within the line of danger, and the beam of the locomotive struck him, and knocked him down. The locomotive stopped within about 25 feet after having struck him. He brings this suit in damages against the defendant company, charging negligence.

We can discover none. He was standing out of the line of danger while the locomotive was approaching, and was seen by the engineer and fireman. When he stepped back into the line of danger, the time had passed when the locomotive could have been stopped before striking him. It is supposed that what caused him thus to step back was the letting out of steam by the locomotive of the backing freight train just after having passed him. The whistle of the locomotive that struck him had been blown shortly before and the bell was duly ringing.

The judgment appealed from is set aside, and the suit is dismissed at plaintiff’s cost.  