
    (78 South. 237)
    No. 22604.
    ROGERS v. LOUISIANA RY. & NAV. CO.
    (Feb. 25, 1918.
    Rehearing Denied April 1, 1918.)
    
      (Syllabus by Editorial Staff.)
    
    1. Death <@=>58 (1) — Presumptions—Contributory Negligence.
    Where the presence of deceased, who was lying down between the rails of a track, was unaccounted for, it would be assumed as a legal conclusion that he was guilty of gross negligence amounting to recklessness.
    2. Death <§=>58 (1) — Bureen of Proof — Last Clear Chance.
    Where deceased, killed when lying between the rails of a track, was guilty of gross negligence, his widow could recover only if she showed that the accident might have been avoided by the exercise of ordinary care on the part of defendant’s engineer after the danger of the situation was or should have been discovered.
    
      3. Railroads ©=>398 (3) — Injury on Track-Negligence — Evidence.
    In an action by the widow of one killed while lying- between the rails of a track, evidence held not to show a want of exercise of ordinary care on the part of defendant’s engineer after the dangerous position of deceased was or should have been discovered.
    Appeal from Thirteenth Judicial District Court, Parish of Rapides; James Andrews, Judge.
    Action by Mrs. Sadie Rogers against the Louisiana Railway & Navigation Company. Judgment for plaintiff, and defendant appeals.
    Judgment reversed, and suit dismissed.
    Wise, Randolph, Rendall & Freyer, of Shreveport, and Thornton, Gist & Richey, of Alexandria, for appellant. R. P. Liebler, of Alexandria, for appellee
   LECHE, J.

On the night of October 15, 1916, between 10 and 11 o’clock, a passenger train of defendant company ran over and killed Ed. Rogers, who was lying down between the rails of defendant’s railroad track just outside the limits of the city of Alexandria.

The widow of Rogers, alleging that her said husband was killed by the negligence of the employés of defendant in charge of said train, claims damages in the sum of $20,000 as a result of said killing and prays for judgment accordingly.

The district court allowed her $5,000, and defendant appeals.

The train which killed the deceased left the station in Alexandria at about 10:25 p. m., and was proceeding on its way to New Orleans, when, after passing the Alexandria & Western Railroad crossing, the engineer recognized the form of a human being lying flat on the ground, between the rails some 50 feet ahead of him. S. E. Angle, the engineer in charge of the train, further testified that he was then running at a speed of about 20 miles per hour, and immediately applied the brakes, but was only able to stop his train after the engine, tender, and baggage car had passed over the body of the man.

The mangled form of Ed. Rogers was then picked up under the rear end of the baggage car and brought back to Alexandria. The engineer further says that Rogers was lying flat on his back, lengthwise with the track, his head away from the engine, absolutely motionless until just before the engine struck him, when he slightly raised his head as if trying to see what was coming. He further says that he had seen a dark object on the track some 300 feet ahead, but never suspected that it was a human being, until about 50 feet from it, and that with all the diligence he could exercise it was impossible for him to stop his train any quicker than he did.

The place where the accident occurred is about 204 feet east of the crossing of the Alexandria & Western Railroad, on the outskirts east of the city of Alexandria. On one side of the track is an open field, on the other side a thicket. There are no human habitations in that neighborhood, and there are no public roads near or crossing the railroad track. In other words, it is a place where no one would reasonably expect to find any human being between 10:30 and 11 o’clock at night.

The presence of Rogers at that place is unaccounted for and will likely forever remain a mystery. Was he sick, intoxicated, or did he want to depart this life on a railroad track; no one knows. In the absence of any explanation, it must be assumed as a legal conclusion that he was guilty of gross negligence amounting to recklessness, and his widow can only recover if she can clearly show that the accident might have been avoided by the exercise of ordinary care on the part of the locomotive engineer after the danger of the situation was, or should have been, by him discovered.

A great deal of testimony was elicited from several locomotive engineers on this point. Some testified that they could distinguish a human body lying as described by Engineer Angle, anywhere from 350 to 500 feet ahead of an engine; but those who testified to this effect all admit that it is merely a matter of opinion on their part, and not one of them ever had the'misfortune to be situated as was the engineer on the train that killed Rogers. One of defendant’s engineers testified that he once in the nighttime, ran over a man who was lying across the track on a trestle; that the man’s body was between the ties and his legs across one of the rails; that he had one hand sticking up and looked to him like an animal of some kind; that he was only able to distinguish the object within 100 to 150 feet, was running 30 miles an hour, and was unable to avoid the accident.

As a matter of fact, and it is admitted by most of the engineers who were placed upon the witness stand, it is extremely difficult at night to distinguish objects on railroad tracks, and the distance at which they can be recognized varies with their size and shape, their color and the color of the background, their motion or lack of motion, weather conditions, and possibly many other surrounding circumstances. The place where they are seen may sometimes offer a clue to their identification and at other times mislead the mind as to their real nature. Most frequently any object on the track at nighttime looks dark, and, as stated by these engineers, if the speed of passenger trains was checked or if the trains were stopped every time dark spots appear on the track, it would be impossible to efficiently operate passenger trains. The testimony of Angle appears to us to be truthful, to comport with reason, and to outweigh the opinions of experts who have never actually been in a similar predicament.

Our conclusions are that the train which caused the death of plaintiff’s husband was being operated with ordinary care and that plaintiff’s demand should be refused.

It is therefore ordered that the judgment appealed from be set aside and reversed, and Plaintiff's suit, dismissed, with costs.  