
    (91 South. 671)
    No. 24424.
    AYMOND v. WESTERN UNION TELEGRAPH CO. et al.
    (March 13, 1922.
    On Application for Rehearing, April 20, 1922.)
    
      (Syllabus by the Court.)
    
    1. Railroads <&wkey;3!2(l I) — Backing train without light or lookout held negligence.
    • It is gross negligence for a railway company to back a long train over a dark and unguarded crossing in the heart of a populous city, without a light ahead to mark its presence or lookout preceding to give warning of its approach; the noise of the locomotive far in the rear being no indication that the dark and silent “load car” is in motion.
    2. Negligence <&wkey;i22(l) —Contributory negligence must be proved.
    Contributory negligence, being a matter of defense, must be proved by the defendant, unless it be shown affirmatively by the very evidence'relied upon by plaintiff. Hence when neither the evidence of defendant nor that of plaintiff show’s clearly some contributory negligence on the part of the person injured, no such contributory negligence will be presumed.
    3. Railroads &wkey;>327(7) — Obligation to stop before crossing does not require absolute immobility.
    The obligation to stop before crossing a railroad track must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position of absolute immobility. Common sense and common practice both indicate that it will suffice for such person to have his motion so checked and under control that he may stop instantly if need be.
    
      4. Master and servant <&wkey;>96(2) — Unlawful em« ployment not proximate cause of death at railroad crossing.
    Where between the alleged negligence of a defendant and the alleged consequences thereof, there supervenes the culpable act of a third person for whom the defendant is not responsible, the proximate cause of the damage is the supervening culpable act of such third person, and not the original negligence of the defendant.
    
      (SyllaTms hy Editorial Staff.)
    
    5. Death &wkey;99 (3) — $10,000 held excessive for child’s death.
    A judgment for $10,000 for the death of a boy 14 years old, who was not assisting his father in any way, but, on the contrary, dependent upon him, was excessive, and should be reduced to $5,000.
    6. Death <&wkey;8l — Elements of damage for child’s death stated.
    The measure of a parent’s damage for the death of a boy 14 years old is the boy’s sufferings, the parent’s loss of the boy’s companionship, and the shock and sorrow occasioned by the death.
    7. Railroads <&wkey;5i/2, New, vol. 6A Key-No. Series — Judgment against Director General bears no interest.
    A judgment against the Director General of Railroads is a judgment against the United States, and bears no interest, unless Congress shall allow therefor.
    Appeal from Thirteenth Judicial District Court, Parish of Rapides; Jas. Andrews, Judge.
    Action by Newton G. Aymond against the Western Union Telegraph Company and another. From a judgment for plaintiff, defendants appeal.
    Reversed, and plaintiff’s demand rejected as against one defendant, and judgment amended as against the other defendant.
    Francis R. Stark, of New York City, and White, Holloman & White, of Alexandria, for appellant Western Union Telegraph Co.
    Spencer, Fenner, Gidiere & Phelps, of New Orleans, and Wm. H. Peterman, of Alexandria, for appellant Payne.
    Blackman, Overton & Dawkins, of Alexandria, for appellee.
    By Division C, composed of Justices DAW-KINS, ST. PAUL, and THOMPSON.
   ST. PAUL, J.

Plaintiff claims damages for the death of his minor son, charging same to the negligence of the defendant telegraph company and of the Director General of Railroads (operating the Texas & Pacific Railroad), hereinafter designated for convenience the railway company. The cause of action against the railway company is wholly apart from that against the telegraph company, and will he passed upon separately.

I.

The deceased was nearly, but not quite, 14 years of age, and we find the facts to be that on the night of December 20, 1919, he was in the employ of the telegraph company on his way to deliver a message; that he was run down on the tracks of the railway company, whilst riding a bicycle over a public crossing in the heart of a city of 17,000 inhabitants (to wit, Alexandria, La.); that the night was dark, the crossing unguarded and poorly lighted; that the train was backing without a light ahead to mark its presence, and without lookout preceding it to give warning of its approach; that the locomotive was several hundred feet to the rear, where the noise of its whistle, bell and exhaust could be no indication that the dark and silent “lead car” was in motion. This we hold to be gross negligence. See Maher v. L. R. & N. Co., 145 La. 733, 82 South. 872.

II.

The defendant pleads contributory negligence. This is a matter of defense, and must be proved by defendant unless shown affirmatively by the very evidence relied upon by plaintiff. The theory that the boy attempted to cross between the cars before they started to move is not supported' by a scintilla of evidence; but, on the contrary, it is negatived by the fact that the bicycle track led right upon the railroad track, and showed that the bicycle was struck aside and pushed along. This is corroborated by the further fact that the body (trunk) was found wholly between the rails (as testified to by the brakeman), thus showing that the unfortunate boy was crushed by the low-lying brakebeams, and dragged along without being touched by the forward wheels, and until in the course of his rolling some part of his hands and feet were caught beneath the wheels further back; all of which fully accounts for the lack of blood on the wheels ahead.

For the rest, we do. not know whether the boy looked or listened, or whether looking or listening would have done any good; but since the burden of proof as to contributory negligence is on defendant, it is a presumption of law that he did look and listen; and since the love of life is instinctive, especially in youth, it is also a presumption of fact that the boy gave some care to his own safety. Hence, since neither the evidence of the defendant nor that of plaintiff shows contributory negligence in the boy, no such contributory negligence will be presumed.

As to the obligation to stop before ■crossing a railroad track, that must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position of absolute immobility; but common sense and common practice both indicate that it will suffice for such person to have his own motion so checked and under control that he may stop instantly if need be.

There is nothing in this record to indicate that the deceased approached this track otherwise than with his motion under full control. And the fact is that he unknowingly ran into a death trap where “two or three” men had been killed before.

The defense of contributory negligence is not sustained.

III.

As to the telegraph company, the only negligence charged against it is that it employed the boy in night work, contrary to the provisions of statutes forbidding such employment of children under the age of 16 years, and denouncing penalties therefor. Act 301 of 1908; Act 133 of 1914; Act 177 of 1916.

The defense is that this defendant acted in good faith, upon representation made by the boy that he was more than 16 years old, and appeared to be so; and that in any event this employment was not the proximate cause of his death.

It may be that the good faith of the defendant is no excuse in such matters (Alexander v. Standard Oil Co., 140 La. 54, 68, 72 South. 806) ; but we find it unnecessary so to hold in this case. For we find here, as shown above, that between the alleged negligence of this defendant and the injury suffered by the boy, there supervened the culpable act of a third party for whom the defendant was not responsible, and hence the defendant’s alleged negligence was not the proximate cause of the injury.

We find it unnecessary to decide, and we do not decide in this case, whether the defendant would or would not be liable had the supervening act of the third person been nonculpable. That is left absolutely open. We mean here to decide only this: that since between the alleged negligence of this defendant and the alleged consequence thereof there did supervene the culpable act of a third person for whom this defendant was not liable, then it follows that the act of the other party, and not the alleged negligence of this defendant, was the proximate cause of the injury.

IV.

The trial judge allowed $10,000. This we think was excessive. From a pecuniary standpoint the father was not damaged at all by tbe death of this young boy, who was not assisting his father in any way, but, on the contrary, entirely dependent upon him. The measure of damages is the suffering of the boy, whose death does not seem to us to have been instantaneous, and whose sufferings, though short, must have been intense ; and likewise the loss of the boy’s companionship and the shock and sorrow to the father occasioned hy the awful death of his young son. We think the allowance should be reduced to $5,000.

Of course a judgment against the Director General of Railroads is a judgment against the United States, and therefore bears no interest unless Congress shall allow therefor.

Decree.

The judgment appealed from is therefore reversed as to the Western Union Telegraph Company, and plaintiff’s demand as to that defendant is now rejected at his cost in both courts; and the judgment appealed from is amended as to the' Director General of Railroads, so as to reduce the amount allowed plaintiff from $10,000 to $5,000, but without interest (unless allowed by Congress). Plaintiff to pay the costs of this appeal, and the Director General to pay all other costs.

On Application for Rehearing.

By Division B, composed of Justices O’NIEDD, DAND, and BAKER.

DIVISION B.

The Director General of Railroads has applied for a rehearing. Plaintiff has applied for a rehearing on the question of allowing legal interest on the judgment from the date of judicial demand, and on the question of liability of the Western Union Telegraph Company. Plaintiff requests, however, that a rehearing on these questions be not granted unless the rehearing applied for by the Director General of Railroads be granted: Our conclusion that the Director General of Railroads is not entitled to a rehearing disposes of plaintiff’s alternative application. Our refusal of a rehearing, therefore, is not an affirmance, by the members of Section B of the court, of the doctrine on which the court has rejected plaintiffs demand for legal interest from judicial demand, according to Act 206 of 1916; nor do we affirm the doctrine on which the Western Union Telegraph Company has been declared not liable in this case. The judgment rendered against John Barton Payne, Director General of Railroads, and his successors in office, is a judgment against the newly appointed Director General of Railroads and Federal Agent under the Transportation Act (41 Stat. 456), James C. Davis, or his successors in office. The applications for rehearing are denied.  