
    No. 286.
    Mrs. Kate A. White and Husband vs. Vicksburg, Shreveport and Pacific Railroad Company.
    1. In a suit for damages for injuries caused by alleged negligence of defendant, recovery requires that the record should establish first that the defendant was guilty of no contributory negligence, but for which, notwithstanding defendant’s negligence, the injury would have been avoided.
    2. Under the evidence in this case, which is fully discussed, the record fails to show satisfactorily the negligence alleged against defendant, and clearly establishes contributory negligence on part of the injured pa2’ty.
    .3. While railroads are held to strict observance of all precautions necessary for the protection of the public in crossing the crowded streets of cities, there is also an obligation on the part of the public to be vigilant and attentive when passing such crossings.
    d. A claim for damages for an injury done to a married woman living under the regime of the community is an asset of the community, on which suit must be brought in the husband's name, and the wife is not a competent witness in such a suit.
    
      APPEAL from the First District Court, Parish of Caddo. Hieles, J.
    
    
      J. W. Jones for Plaintiff and Appellee:
    1 Masters and employers are answerable for the damages occasioned by their employes, in the exercise of the functions in which they are employed. C. 0., Art. 2320, 17 An. 19 and 166; 23 An. 180; 15 Wall. 649.
    2. No exact computation can be made for the damages due the plaintiff, and in eases of this kind much discretion is left to the jury in the assessment of damages. C. C. 1934, par. 3; 17 An. 19; 18 An. 26; 19 An. 362.
    3. Plaintiff’s taking risk is not necessarily negligence. Pierce on Railroads, p. 328.
    4. Acts and omissions of employes of the company which are deemed negligence. Pierce on Railroads, 356.
    3. This is a question of negligence rel non by the employe of tlie railroad company.
    6. It is negligence to omit any reasonable duty necessary for the safety of the public, particularly crossings in cities, where there are frequent passage and traffic. 40 An. 816.
    BILL OF EXCEPTIONS OF DEFENDANT.
    1. Bills setting up want of legal citation. T., p. 3. We deem it unnecessary to do more than to refer the court to the judgment of the court a qua and reasons assigned for overruling the same, and authorities cited. T., p. 4.
    2. Idea to jurisdiction. T., p. 3. There is nothing in this plea. See Art. 165., par 9 C. P., and authorities. This case is for a trespass or tort sounding in damages, not for a passive violation of a contract. This plea to jurisdiction was overruled by Judge Taylor, and on his own motion the case was referred to a jury. T., pp. 8 and 9.
    We will also call particular attention to three bills of exceptions of the plaintiff:
    1. The ruling of the court as to Mrs. White’s testimony on purely a technicality of law. This bill deserves the maturest consideration of tlie court, and is entitled to have great weight attached to it. T., pp. 77, 78 and 79.
    2. We contend the refusal to make the charge was erroneous. T.,p. 80.
    3. This evidence was improperly refused and should have g’oqo to the jury as to its effect. T., pp. 81 and 82.
    
      Wise & Herndon for Defendant and Appellant:
    1. Por an injury resulting from the frightening of a horse in the proper operation of a railway no damages are recoverable. Wood’s Railway Law, Vol. 2, p. 1332; Pierce on Railroads, p. 348.
    2. It is the duty of a person crossing a railway track, or approaching it with intent to cross, to exercise ordinary care and prudence to avoid injury. It is the duty of a person approaching a railroad crossing to exercise care, diligence and caution in looking and listening for approaching trains. It is his imperative duty to exercise all reasonable care, and his failure to exercise such care will be such neglect on his part as will preclude a recovery by him for a personal injury. Wood’s Railway Law, pp. 1302-1312; 42 An. 682.
    3. The allowance of excessive damages by juries for personal injuries must be discountenanced. Peyton vs. Railroad, 41 An. 861.
   The opinion of the court was delivered by

Eenner, J.

The allegations are that, while Mrs. White was driving in a buggy with three young children in the streets of Shreveport, and as she approached, in a moderate gait, the crossing of the defendant over Jordan street, a locomotive of defendant came dashing across at unusual speed without blowing whistle or ringing bell, or giving any other precautionary signal, which frightened her horse ' and caused him to run away, upsetting the vehicle and inflicting upon her the damages for which claim is made in this suit.

The defence is a general denial and a plea of contributory negligence.

It has been ruled with such frequency and uniformity as to make its iteration here merely formal, that, to sustain recovery in such a ease, it must appear from the record, first, that the defendant was guilty of negligence; second, that the party injured was guilty of no contributory negligence, i. e., negligence but for which, notwithstanding defendant’s negligence, the injury would have been avoided.

I.

The proof of negligence on the part of defendant is by no means satisfactory. As to the rate of speed, several witnesses express the opinion that the train was going at the rate of about fifteen miles an hour; but nothing is more uncertain than the estimation of rates of speed by mere unskilled observers. The engineer and other employees state positively that the rate did not exceed six miles an hour. What impresses us most, however, on this point is the uncontradicted fact that one of the employees, on seeing the accident, stepped off the train as it ran, without difficulty, and went to the lady’s assistance, which certainly indicates a moderate speed. There is no statute or ordinance prescribing any particular rate.

As to the precautionary signals, defendant’s employees positively state that bells were rung and the whistle was blown. Several witnesses who were in the vicinity state that they did not hear either bell or whistle, but none of them pretend that they were noticing or paying any attention to the matter, or had any concern to do so. Their evidence is robbed of value by the positive proof that the whistle was blown and was heard by the only person, except plaintiff, who had occasion to notice. This was a Mr. Laughlin, who was riding on horseback in the sapie direction and just in advance of Mrs. White, who says that he heard the whistle of the approaching train, and, quickening the speed of his horse, rode across the track in advance of it; that after crossing he chanced to look back, and saw Mrs. White driving unconcernedly toward the track; that he stopped and called out to her and waved his hat, but failed to attract her attention; that she drove right on until she came near the track, when she stopped, and he saw a negro boy jump forward and take hold of the horse; that then the passing train intervened, and he saw no more until it had passed, when he saw the horse running away down the street. This witness is unimpeaehed, uncontradicted and entirely disinterested. We think his testimony must be taken as full proof' that the whistle was duly and timely blown. He says he did not observe whether the bell was ringing as the engine approached, because his attention was absorbed by the danger of the lady. If plaintiffs’ witnessec did not hear the whistle which was blown, they might equally have failed to hear the bell, although it was rung; and their evidence does not suffice to overthrow the positive statements of the employés that the bell was rung.

II.

We are bound to hold that Mrs. White did not exercise that degree of care and caution which the law exacts of persons approaching the crossing of a railroad track with intent to cross. She was unquestionably bound to look and listen, and to exercise care and caution to avoid the possible danger suggested by the very fact of the crossing-

Mrs. White was a resident of Shreveport, and,' as the evidence shows, in the habit of frequently driving herself about the city.

Had she been looking and listening, had her attention been on the alert, we can perceive no reason why she should not have heard the whistle of the approaching train, why she should not have heard its noise as she- approached nearer, why she should not have heard and seen the signals of danger given by Mr. Laughlin in full view across the track. Yet it appears that she heard and saw nothing, but drove recklessly forward and might have passed on the crossing itself and been run over by the train had not the negro boy called to her as she was very near it and warned her of the approaching train. She then stopped and asked the boy to hold her horse, which he did ; but the frightened animal jerked away and did the injury.

It is quite evident that the lady’s attention must have been diverted and otherwise occupied, probably with the three small children which she had in the buggy with her.

While we exact great care from railroad companies in the observance of all requirements necessary to protect the public at a crossing where persons and vehicles are constantly passing, yet, as we have heretofore said, “ there is also an obligation on the part of the public to be vigilant and attentive when passing over a crossing where passing trains may be frequently expected. Deikman vs. Railroad Company, 40 An. 790; Deikman vs. Railroad Company, 42 An.; Wood’s Railway Law, pp. 1302 to 1312.

We have been disposed to give the plaintiff the benefit of a liberal construction of the evidence in support of the claim, because the evidence of the wife who suffered the injury could not be heard in the case; but, if she had been heard and had testified aceordingto the terms of the statement embodied in the bill of exceptions taken to the exclusion of her testimony, it would not have availed to alter our conclusions. Of course, we have not given any effect to her statement, but only mention this to illustrate the spirit in which we have considered the legal evidence in the case.

The bill of exceptions itself has no merit. Of course the claim for damages is a community right and could only be asserted by the husband as head and master’ of the community. ■ The prayer of the petition is fora judgment “ in favor of George A. White, the husband of Kate A. Wliite,” and the husband was heard as a witness iu the case. In a suit by the husband for a judgment in his own favor on a community claim certainly the wife can not be heard as a witness.

There are other bills which are of no moment to our conclusions in the case.

It is, therefore, adjudged and decreed that the verdict and judgment appealed from be annulled and set aside, and that there be judgment in favor of defendant rejecting the plaintiff’s demand at his cost in both courts.  