
    No. 11,831.
    Hugh J. McDonald vs. Louisville & Nashville R. R. Co., East Louisiana R. R. Co., New Orleans & North Eastern R. R. Co.
    A collision of railroad trains brought about by the concurring negligence of two companies will render them liable in solido to an injured party.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    
      Benjamin Biee Borman for Plaintiff, Appellee:
    Where a railroad company permits another company to exercise the franchise by running cars drawn by steam over its road, the company owning the road and to which the law has entrusted the franchise is liable for injury done. Macon, etc., Ry. vs. Mayes, 49 Ga. 355; 5 Wallace, 105.
    
      Denigre & Denigre for Louisville & Nashville R. R. Co., Defendant and Appellee.
    
      
      Harry H, Hall for New Orleans & Northeastern R. R. Oo., Defendant and Appellant:
    A railrosd company authorized by act of the Legislature to contract, to perform its transportation with another railroad company may permit that company to use its tracks without becoming liable for the negligence of that company. Act 60 of 1870, Sec. 4; Hutchinson on Carriers, Sec. 515, p. 585, and authorities.
    And such legal use of track and immunity will result from a traffic arrangement. Morawetz on Private Corporations, I, Secs. 876* 377, 378, 379, 380. . , -
    Farrar, Jonas & Kruttsohnitt for East Louisiana Railroad, Defendant and Appellant.
    Argued and submitted June 6, 1895.
    Opinion handed down June 21, 1895.
    Opinion refusing rehearing June 29, 1895.
   The opinion of the court was delivered by

McEnery, J.

The defendant corporations are sued in solido for ten thousand dollars damages inflicted upon plaintiff’s wife in a collision of the trains of the first two defendants, at the intersection of the New Orleans & Northeastern Railroad and the Louisville & Nashville Railroad, at People’s avenue and Patriot street, on the morning of October 14, 1894. There was judgment against the East Louisiana and New Orleans & Northeastern Railroad Company in solido for plaintiff in the sum of one thousand two hundred and fifty dollars, with five per cent, from date of judgment.

The East Louisiana, to reach its own track, has to pass over and use the track of the New Orleans & Northeastern Railroad Company. The East Louisiana was running its own train, and on its own schedule. They are separate corporations, and the contract between them is for the mutual interest of both lines covering the interchange of traffic between points on the line of the road of the New Orleans & Northeastern south of but not including Pearl River Station. There is nothing in the agreement to indicate ownership of the East Louisiana by the New Orleans & Northeastern, nor is there any stipulation that would indicate that the latter road is to be responsible for any damages to third parties by defective equipments of the former’s trains running over the New Orleans & Northeastern tracks.

The plaintiff’s wife was a passenger on the Louisville & Nashville Railroad when the collision occurred, and received severe and painful injuries, from which she had not entirely recovered when this suit was filed.

At the crossing, the Louisville & Nashville road, it is conceded, had the right of way; that is, the right when trains on both tracks were approaching the crossing, to pass over first.

The Louisville & Nashville Railroad train, as it approached the crossing, stopped at the “ stop board,” some three or five hundred feet from the crossing. It gave the usual signals, but no response was made by the train of the East Louisiana road.

The engineer of the Louisville & Nashville train, believing the track was clear, from hearing no signals, moved forward to cross. When seventy-five feet from the crossing, he saw the East Louisiana train coming at a distance of three-quarters of a mile. The train moved on, the engineer says, he was sure the engineer of the East Louisiana was preparing to stop. When one car was on the crossing, the engineer of the Louisville & Nashville became convinced that; the East Louisiana would not stop. He then put on all the force he could to clear the crossing. There were eight coaches in his train, and the East Louisiana struck the sixth coach. The train, when put in motion to cross, was going at the rate of six miles per hour.

The “slow post ” on the Northeastern road is 3500 feet from the crossing; the “stopping post” 300 feet. The engineer of the Louisville & Nashville says in his testimony: “ When I saw him rolling by the ‘stop board,’ I knew the speed he was going at. I saw that he was not going to stop his train, and I threw the reverse lever down in the corner, and opened the throttle valve to get out of his way as quick as I could, but I couldn’t do it quick enough on account of stopping at the ‘ stop board.’ ” The engineer of the East Louisiana says that as he approached the “ slow board ” he blew the whistle for the crossing, and “let his train,” as he supposed, “roll up, ‘half way,’ as it was an incline.” He was going at a high rate of speed, twenty-five miles per hour. When half way between the “ slow hoard” and the “ stop board” he applied the air brake, but it did not work. He called for hand brakes and succeeded in reducing the speed of the train to two miles, when it struck the Louisville & Nashville train.

There is no doubt as to the negligence of the East Louisiana. The air brake, it is said, was in good condition when the train left the depot, and that it had been inspected prior to the departure of the train. The defect in the brake is accounted for on the supposition that it had been maliciously tampered with. There is no evidence of any kind that points to this conclusion. It is much more reasonable to assign as a cause the oversight of the inspector, or some inherent defect in the brake, than to attribute it to some depraved and malicious creature, without even the slightest suspicion upon any one.

Notwithstanding this defect in the air brake of the East Louisiana road, the accident would not have happened had the engineer of the Louisville & Nashville exercised ordinary care and judgment. When he saw the train it was in time, about two minutes from the crossing. It would take his train about the same time to go over the distance, say one thousand one hundred feet from where he first saw the approaching train, in order to clear it, if it kept at the same speed at which it was going, twenty-five miles per hour. Human life is too precious to take chances in the small margin of time here presented. He ought to have stopped his train and waited for the stopping of the approaching train at the “stop board” on the Northeastern Railroad track. Although the Louisville & Nashville train had the right of way, the engineer had no right to exercise it in the presence of immediate danger. In attempting to exercise this right, with the approaching train so near the crossing, he had to assume that it was in order in all its equipments, and no contingency would prevent its stopping at the “ stop board.”

The engineer’s experience and his trained judgment ought to have taken in the situation and appreciated the danger in taking such chances within such limited time. The fraction of a minute was important in calculation, and the least derangement of the machinery or equipment of the approaching train would cause the loss of this precious time.

Surely human life is too valuable to be sacrificed to save in the scheduled time of a train such an inappreciable amount.

Both trains were in default, and the fault of each was simultaneous and concurred as a proximate cause in bringing about the accident. They are liable in solido to the plaintiff.

It was said in argument that there was no contractual obligation between the plaintiff and the East Louisiana Railroad, as he was not a passenger on its train. The claim for damages arises as against the East Louisiana Road ex delieto. Had the Louisville & Nashville been without fault, would the plaintiff have been denied relief against the East Louisiana road? We see no force in this contention.

It is ordered, adjudged and decreed that the judgment appealed from be amended, reversing that part as to the New Orleans & Northeastern Railroad Company, and that part as to the Louisville & Nashville Railroad Company, and it is now ordered that plaintiff’s demand against the New Orleans & Northeastern Railroad Company De dismissed, and that there be judgment against the Louisville & Nashville Railroad Company in solido with the East Louisiana Railroad Company for the amount of the judgment appealed; in other respects the judgment is affirmed, the defendant roads against which judgment is rendered to pay costs of appeal.

Nicholls, C. J., absent.

On Application for Rehearing.

In the application for rehearing it is urged that the amount awarded by the jury and affirmed by this court is excessive, and that this court assigned no reason fob the amount of damages allowed. It was entirely unnecessary to go into details of plaintiff’s injury.

The testimony of the physicians show that her injuries were severer than mere bruises or contusions, and that the injuries inflicted were more than temporary. She was not well at the trial of the case and exhibited her injuries had to the jury. Dr. Butterworth, a competent physician, says that at the time of his testimony she suffered some, and this must be a necessary consequence of the condition of the hand, which he describes as having the outside bone of the hand fractured near the bone of the little finger; that she seemed to be nervous, and that the third and fourth Angers were stiff. This was the condition of the hand a few days before the trial. Besides, it is shown that the plaintiff was hurt about the shoulders; that her left leg was dark and bruised.

It is true the first physician who saw her discovered no fracture of the bone of the hand, but it is asking too much of this court to believe that the broken bone was a self-inflicted injury.

From the condition of the plaintiff when she received her injuries and when she appeared in court, we are satisfied her suffering from the time of the accident until the trial was severe and painful. Dr. Butterworth says that the probabilities are that the plaintiff will never have her hand restored to its first healthful condition.

Under the circumstances of the case and the testimony in the record, the jury assessed the damages at a reasonable amount, and had we been disposed to interfere with the verdict we would have increased rather than diminished the amount of damages.

The cases referred to in the brief of defendants are, with few exceptions, those in which temporary injuries were suffered and the inconveniences to plaintiffs were limited.

Rehearing refused.  