
    No. 7679.
    Court of Appeal----Parish of Orleans.
    Maurice Stich. -vs-Wm. G. Mc. Adoo, Director General of Railroads and of the Louisville & Nashville Railroad Company. Walter D. Hines, Subrogated.
    By Dlnkelaoiel. J.
   Plaintiff avaro, that on April 18th. 1918, at about 1.30 o'clock, p. m., he was driving his Hupmobilo Automobile from the Louisville and Nashville Fruit Shed to the annex of fcfc»- the Southern Pacific Railro-ad at Julia and Front Streets, and when he approached the Julia Street crossing of said Louisville and Nashville Railroad Company there was an engine with several cabooses belonging to the said Louisville & Nashville Railroad Company on the aide track whioh more than half obstructed his view of the crossing. - That upon entering the orpssing the railroad flagman, employed by defendant company, signalled to plaintiff to stop whioh he promptly did; that after a reasonable time had elapsed the flagman walked away and plaintiff assumed, ae he had a reasonable right to do, that the departure of the flagman indicated that the engine with the cabooses was to remain at a standstill; he proceeded to cross the tracks and had crossed the first track of the crossing when the machine was hit by a string of care belonging to defendant, and whioh cars had been out and kicked by the engine belonging to defendant. That this aooident took place in tne presence of switchmen o£ defendant company who were unable to stop the cars before biting the automobile of plaintiff. There was no locomotive attached to the cars.

Plaintiff further alleges, that as a result the Automobile was badly damaged-to the extent of §335.00.; thAt he made amicable demand upon defendant, and in default of defendant acting properly,he was compelled to have the repairs made at a cost of §335.00^ and annexes the bill of O'Connor & Co.;that same was done at_a fair and reasonable amount.

Plaintiff olaims further, that the oauae of the aooident was the negligence and neglect of duty on the part of the flagman employed by defendant in walking away from the tracks and failing to request plaintiff not to make the orossing, and that the foreman employed by defendant was not properly attending to his duties being quite a distance away from the orossing, and therefore plaintiff believes that said flagman acted improperly and without attending properly to hie duties as such flagman, and that the accident was due to a violation of the ordinary care in the kioking or backing up of oars on a public orossing in this City. He alleges further, that he was exeroising due oare and dellgence and did not in no way contribute to the accident; that said orossing is frequently used by vehicles and pedestrains, and that defendants gross neglect oaused plaintiff the damge as above setforth. Wherefore, he prays for judgment.

The answer substantially admits the aocident in question, the damge to the oar; alleges that the traok was olear at the time of the aocident and that plaintiff oould have seen just where to drive his automobile; that the flagman was in no wise responsible for the Injury, neither was the w switchman nor any of Its employees, that at the point where the accident ooourred, Julia Street, is intersected by ten railroad traoks. It is therefore the duty of anyone approaching the said orossing to exsroise a high degree of oare. That plaintiff approaohed the said crossing towards the woods. A out of eight oars were being switched or kloked along the traok in an uptown direction, and said oars were approaching Julia Street at a moderate rate of speed, and defendant's flagman al pal lad -plalptlff to atop which he did. at a safe dlstanoe from said track. Answering further’, the flagman did not walk away there after, hut hearing a wagon approaching from the other side the flagman turned hie baok on plaintiff to signal said wagon to ooms to a atop;, that plaintiff started the automobile forward and attempted to cross just In time to have ■ the automobile struck by the on coming up out of care. Defendant claims further, that the flagman in question did all that was possible and proper in the premises, and that the accident was caused solely by plaintiff's disregarding the warning given by said flagman; denies that the flagman was guilty of any negligence or duty in the premises; denies that said flagman walked away from the tracks as alleged; denies that the flagman failed to request plaintiff not to make the crossing; denies that said flagman was in any way guilty of negligence, denies that the foreman was not attending properly to his duties, that he was away six hundred feet from the orossing or that he was in uqmUi anywise guilty of negligence in the d/

Defendant avers that it exercise all oare and deligenoe under the circumstances and did nothing to contribute to the accident; admits that the crossing is frequently used by vehicles and pedestralns, and prays for a judgment in its favor.

it A careful examination of the evidence convinces us that the accident which oaused the damg'e was in nowise attributable to plaintiff and that he did everything that a careful and prudent man should have done under the circumstances.

tPlaintiff testified, that he had crossed these particular tracks two or three times a day* for the pact twenty years, and he acted no differently on tris occasion than hr had on similar previous occasions, and that his interpretation of the flagmans attitude on the day of tnis accident from his previous experience at tne crossing lead him to believe that there was no danger to be apprehended from crossing the tracks at that particular time.(See Transcript,page 8, plaintiff's testimony.) His testimony convinces us that the action of the flagman which is supported by two witnesses who were in the automobile at the time of the accident, that plaintiff, when the flag was put down by the flagman, had the right to do just as he attempted to ao, that is,cross, and that he was stopped .unen the flagman turned his back looking for the approach of a wggon and therefore left the place he had in charge in order to perform other duties and left free to plaintiff to orpss at the time that he did; were it not for this, we are convinced from the testimony, that plaintiff would not have attempted to have crossed and the accident, therefore, could not and would not have occur--rod.

Tnilst it is true that the flagman, Smith, swore that he did his duty in flaglng plaintiff's automobile in order to prevent him from crossing the tracks at the time of the accident, and while it is true that some of defendant's witnesses also testified t.'.at tney saw Smith flag, the automobile,none of them deny that his back was turned when plaintiff started to cross tne tracks, but on the contrary, from all t,.,c evidence in this case, we are convinced that the flagman absolutely and utterly failed in performing the duties required of him.

His Honor, the Judge of the lower Court a sur and heard the testimony and was of the opinion that the aooident was due solely to the negligence of defendant, (Trans, p. 17.)and under the Jurisprudence of this State we are not disposed to say that he erred.

Harrison -vs- Goldburg, 133. La. p. 389.- Schwartzburger -vs- Schwartzburger, 138 La. p. 924.

"It is a general rule that a person who by his fault causes damage to another either by his act or by his neg--llgenoe, imprudence or want of skill, is obliged to repair same.* Wells -vs- Johnson. 53 La. p. 733. Lang -vs- Illinois Central R. R. Co. 115 La. p. 887.

Judgment Affirmed.  