
    James Davis,Appellant. vs N.O.Public Belt RRD. and Al.
    No.8941
    Charles P.Claiborne,Judge.
    April 2nd 1923
    
      
    
    
      
    
    
      
    
   James Davis,Appellant. vs N.O.Public Belt RRD. and Al.

No.8941

Charles F.Claiborne,Judge.

This is a damage suit for physical injury.

The plaintiff alleged that on June 23rd 1921 his son was run over and killed by a train of the defendant railroad for which he claims $25,000 damages fBom the City of New Orleans, alleging that the " public Belt Railroad " is merely an- administrative agent of the City of New Orleans.

The defendant" excepted to plaintiff's petition on the ground that same discloses no cause of action."

The trial Court"referred the exception-to the merits because of the urgent contention of counsel for plaintiff that if the Public Belt Railroad was to be maintained and operated by the City of New Orleans that,by all custom,and by the ruling of the Interstate Commerce Commission,"operating expenses” necessarily include whatever expenses may bo inourred by reason of damages flowing "ex delioto" from the " Operation" of the road," and that it was authorized by the Constitution of 1913 •to pay all" operating expenses".On the merits,on the authority of Jones vs City of New Orleans 143 La 1073^the Court dismissed plaintiff's suit.The plaintiff has appealed.

In the Jones oase his widow sued the City for the negligent and careless killing of her husband on one of the docks of the City of New-Orleans,by one Humphreyssat .that time Humphreys was a City policeman, assigned to duty under, the Publli Belt Railroad,the defendant herein,and at the time of the sKoo%' It , ing was acting within the scope of his employment." The killing was investigated by the grand jury upon the' charge of murderj the return was "not a true bill* .

The Supreme Couty said that.this return was présump tive evidence that the policeman did not' comalt a■crime,but that even if he had, the City of Hew Orleans could not"T}e held // liable therefor in damages.The Court concludes with the language " We are therefore of the opinion,v/hether Humphreys be considered as an employee of the Belt Railroad Commission,a governmental function,or. whether he be considered as an ordinary policeman,that plaintiff cannot hold the City of Hew Orleans, liable in damages'ex delicto^or his'negligence or carelessnes" See Lamport vs Board 137 La 784-146 La 641-143 La 1077-52 A 429 -434-51 A 880-19 R.C.L.698- 9 A 461-41 A 1031-50 A 417-51 A 683 14 A 120-13 A 275-12 A 858-3 A 566.

The error of plaintiff's argument based upon the theory that damages caused by the running of trains'^eam a legitimate item of responsibility is in assuming that such damages are part of the"operating expenses."

Public owned railroads cannot pay damages for which the Courts decide they are not responsible and therefore such damages cannot form a component part of their " operating expenses."

Judgment affirmed.

April 2nd 1923 .  