
    (94 South. 436)
    No. 23759.
    DAVIS et al. v. ALEXANDRIA & W. RY. CO.
    (Nov. 3, 1919.
    On the Merits, Nov. 27, 1922.)
    
      (Syllabus by Editorial Staff.)
    
    On Motion to Dismiss.
    (. Appeal and error &wkey;389(I) — Appeal not dismissed because case consolidated for trial with ease in which pauper áffidavit was insufficient. '
    Appeals in cases properly tried and appealed in forma pauperis will not be dismissed because they were consolidated for trial with another case in which the affidavit for prosecution of the suit in forma pauperis was insufficient.
    2. Appeal and error <§=»227 — Objection and exception not mentioning ground insufficient to raise question of sufficiency of pauper affidavit.
    Objection to motion and orders for prosecution and appeal of case in forma pauperis and bill of exceptions reserved thereto, not mentioning the ground of objection, were insufficient to raise the question of the sufficiency of the affidavit, as the court might have ruled differently, or the necessary affidavit might have been furnished if the ground of objection had been stated.
    
      (Syllabus by the Court.)
    
    On the Merits.
    3. Railroads <&wkey;3l6(2) — Speed consistent with safety of train not excessive in country.
    ' In the open country outside of.city limits any speed is legitimate for a railroad train, which is consistent with the safety of such train.
    4i. Railroads. &wkey;309 — Not required to stop trains at stations.
    There is no rule of law, or reason in common sense, why a railroad company should be required to stop all or any of its trains at all stations on the line of its road.
    5. Railroads &wkey;309 — Mistake in emergency not actionable.
    Where, in an emergency, the engineer of a railroad train promptly takes such measures to avoid an accident as then seem best, it is not a fault oh his part that he might have erred in judgment, and that the accident might have been avoided ha'd some other course been followed.
    Appeal from Thirteenth Judicial District Court, Parish of Rapides; Jas. Andrews, Judge.
    Consolidated actions by Mrs. Earl Davis and others against the Alexandria & Western Railway Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    R. F. Liebler and John Henry Mathews, both of Alexandria, for appellants.
    Blackman & Overton, of Alexandria, for appellee.
   On Motion to Dismiss.

By the WHOLE COURT as then constituted.

PRO YO STY, J.

Three separate suits, filed by three different plaintiffs are included in the record of this case. As these suits grew out of the same railway accident, and involved the same inquiry into the circumstances of the accident! they were consolidated for trial in the lower court. Judgment went against the plaintiffs, and an appeal was moved for and granted in each case. As the cases had been prosecuted in forma pauperis, and the appeals had been granted in the same form, it was not thought necessary to give bonds of appeal, and none were given. Defendant moves to dismiss the appeals, for the reason that in one of the cases, that of Murphy, the affidavit required by law for the prosecution of a suit in forma pauperis was not made, and that therefore the trial court was without authority to allow the case to be tried, or appealed, in ■ that form, so that the appeal stands without a bond and must in consequence be dismissed, and that the appeals in the two other cases must also be dismissed, because the cases were tried with this Murphy Case and the costs of the trial were incurred in the three cases conjointly.

We do not see the necessity of this consequence. These two cases were properly tried and appealed in forma pauperis. Why, then, may not' the appeal in them stand without a bond? and why should their having been consolidated for trial with the Murphy Case make any difference in the premises?

When the motion and the orders were made for the prosecution and the appeal of the Murphy Case in forma pauperis, defendant objected, and reserved a bill of' exception ; but did not mention the ground on which the objection was founded, so as to afford the trial court an opportunity to pass advisedly upon the objection. This form of objection was insufficient. Non constat that the court would not have ruled differently if the objection had been made properly, and that the necessary affidavit would not have been furnished at once if its absence had been mentioned.

The motion to dismiss is denied.

On the Merits.

By the WHOLE COURT.

ST. PAUL, J.

Plaintiff, above named, and' two others severally sue for damages, the first for the death of her husband, the others for personal injuries to themselves, growing out of a wagon in which they were riding having been run into by one of defendant’s trains through the alleged negligence of those in charge of said train.

I.

The negligence originally charged was that the train gave no warning of its approach, i. e., sounded neither whistle nor bell as it approached the crossing. But the evidence .is overwhelming that the whistle was sounded at the usual place, about 1,200 feet from the crossing, and that the bell was rung continuously from thence to the crossing; and the only reason why the occupants of the Wagon did not hear it was the noise made by the wagon as it drove rapidly over the gravel road, and the talk and laughter of the occupants thereof, who were a party of ten on their way to a circus.

II.

It was also claimed that the train was running at an excessive rate of speed; but the evidence shows that the speed did not exceed 25 miles per hour, and the accident occurred at a crossing in the open country some two miles outside of the limits of the city of Alexandria. Such speed was not excessive. In the open country any rate of speed consistent with the safety of train was proper and legitimate. Houston v. V., S. & P. Ry. Co., 39 La. Ann. 796, 2 South. 562.

III.

It is claimed that there was a station just before the crossing at which trains were in the habit of stopping, and at which this train should have stopped before going over the crossing; thereby avoiding the accident.

But the evidence shows that this station had been abandoned more than six weeks before the accident; that it was only a flag station; that not all passenger trains, and no freight trains at all, stopped there at any time. And finally, we know of no law, or regulation, or reason in common sense, why a railroad company should be obliged to stop all or any of its trains at all stations on the line of its roads.

IV.

In brief and argument counsel for appellants urge that the engineer, when he saw the wagon emerge from behind some growing corn about- 50 feet from the track, and continue without stopping, should have again sounded his whistle to warn the driver, who, apparently was paying no heed to the approaching train.

The answer to this is that the train was about 150 feet from the crossing when the engineer first saw the wagon and realized that an accident was imminent; whereupon he immediately shut off steam and applied the emergency breaks in the hope of reducing the speed of the train and allowing the wagon to get over the crossing.

It is true perhaps, that had the engineer blown the whistle instead of applying the brakes (for he could not do both), he might have attracted the attention of the driver. But the fact of the matter is that he was obliged to think and act quickly, and in the emergency did that which then appeared to him as the best thing to do. An error of judgment (if error it was) was no fault on his part under the circumstances.

The trial judge found no fault in the defendants, nor do we.

Decree.

The judgment appealed from is therefore affirmed.

OVERTON, J., recused.

O’NIBLL, J., being absent from the state, takes no part in the decision of this case.  