
    (44 South. 159.)
    No. 16,305.
    HOLLINS et ux. v. NEW ORLEANS & N. W. R. CO.
    (March 4, 1907.
    On Rehearing, June 10, 1907.)
    1. Railroads — Injury to Child on Track-Negligence.
    It is the grossest negligence for a railway company to back a train through the streets of a town, particularly through a part where children congregate, without having some one to keep a lookout from the forward end; and, where, under such circumstances, and in broad daylight, a child of tender years is found, by a person passing by, to have been run over and killed, and it appears that no one connected with the train was aware of the killing, it is for those who are responsible for such negligence to show that the tragedy, which would otherwise appear to have been its natural consequence, was, in fact, attributable to some other and excusing cause.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1117, 1119.]
    2. Same — Companies Liable for Injuries.
    Where the evidence in a ease is of such a character as to satisfy a reasonable mind that one railroad company to all intents and purposes, owns and operates another, though the autonomy of the latter is preserved for the convenience of the parties, the two companies may be condemned, in solido, for a tort committed in the course of such operation. If the prima facie case, made out by such evidence, is not the real case, it is for the companies to show it. The knowledge of their relations is in their possession, and not, ordinarily, in the possession of the person injured.
    On Rehearing.
    3. Same.
    As a general proposition, where one railroad company negligently causes an injury while operating the railroad of another, both companies are liable. Hence a petition which sets forth such a condition of facts shows a cause of action against both companies.
    (Syllabus "by the Court.)
    Appeal from Tenth Judicial District Court, Parish of Concordia; John Stirling Boatner, Judge.
    Action by Henry Hollins and wife against the New Orleans & Northwestern Railroad Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Frederick Gray Hudson and Hugh Tullís, for appellant. Dagg & Dale, for appellees.
   MONROE, J.

This is an ¿ppeal from a verdict and judgment for $2,000 against the New Orleans & Northwestern Railroad Company and the Natchez & "Western Railroad Company, for the killing of the plaintiff’s child. The facts disclosed by the record are as follows:

On the morning of June 16, 1905, between 10 and 12 o’clock, a mixed train of cars came into the town of Yidalia, and, after discharging its passengers and getting rid of its freight or baggage cars, was reduced to an engine and two coaches, and, at the moment of the killing, was being backed through one of the streets of the town, to the.depot, which is situated just inside the levee and at a point where it forms a right angle, so that, as the train approached it, after rounding ' a curve in the track, one arm of the levee was immediately to its right, and the other crossed its path; the depot being within the angle thus formed.

The train crew consisted of an engineer, a fireman, and a brakeman. The engineer and fireman were at their posts, in the cab of the engine, the brakeman (speaking of the coach, which, as the train was moving, was nearer to the depot, as coach No. 1, and of the other as coach No. 2, and of the end of the train which was nearer the depot as the front, and of the other as the rear, end) was on the rear platform of coach No. 2, next to the engine. There was no one-on the front of the train, or any nearer to the front than the brakeman. The conductor was standing at a point about 200 feet distant from that at which the accident occurred, and the weather conditions are not shown to have been unusual. As thus operated, the train reached the depot, which is-about 75 feet beyond the point at which the accident occurred, and the engine was detached from the coaches and taken away for other work. Shortly afterwards, it was discovered, by some one in passing, that plaintiff’s child, a boy about five years old, had been run over, and, coach No. 2 having been raised by means of jack screws, the body,, still warm, but mangled and lifeless, was-removed from beneath its rear truck. No one-had seen the accident, and, by reason of the curve in the track, and the positions occupied by them, no one connected with the train could have seen it. It is shown that children were accustomed to playing in the-street near the place where the accident occurred, and that the railway employés frequently had occasion to warn them away,, and (whilst such an admission is hardly necessary) it is admitted, by the conductor who-had charge of the train, that some one ought to have been in front, keeping a lookout. Under these circumstances, we have no hesitation in finding that the failure to maintain such a lookout was the grossest and most inexcusable negligence, and that it is for those who are responsible for that negligence to-show that the tragedy, which would otherwise have been its natural consequence, was,, in fact, attributable to some other cause.

The learned counsel for the defense say:

“There can be no doubt, we think, that this-lamentable accident was caused by the attempt" of the child to steal a ride on the train. In other words, he was a mere trespasser, and, as-such, the railroad owed him no duty except not to wantonly injure him. The accident happened from the sudden and unanticipated act of the child itself, which could neither be foreseen nor guarded against.”

We are, however, unable, so readily, to assume that a child, five years old, will attempt to steal a ride on a moving railroad train. If, however, the infant had been near enough to the track to have made such an attempt, as the rear end of coach No. 1 was passing, he would have been near enough, when the front end of that coach passed, for the lookout, if there had been one, to have seen him, to have recognized his peril, and to have rescued him, as the train was moving very slowly. But whether the child walked or fell under the train between the coaches, or whether he fell in front of the train, and, coach No. 1 having passed over him, was killed whilst attempting to get out, is a matter of conjecture, and that it is so that a railway train should be so operated, through a public street, where children are known to be in the habit of playing, as, in broad daylight, to run over and kill one of them, without the knowledge of any of the crew, is the most remarkable feature of the case. It is contended that the two companies made defendants do not occupy such a relation to each other as to authorize a judgment against them in solido. We think, however, that any reasonable mind, with knowledge of the testimony, and of the facts disclosed in the record, would conclude that, whilst, for the convenience of the parties, the autonomy of the Natchez & Western Railroad Company has been preserved, the company itself is owned and operated by and with the New Orleans & Northwestern Railroad Company; and, if the ínfima facie case thus made out is not the real case, it was for the defendants to show it. The knowledge of their relations is in their possession, and not in the possession of the plaintiff.

Judgment alarmed.

LAND, J., takes no part, not having heard the argument.-

On Rehearing.

PROYOSTY, J.

After careful reconsideration of this case, the court finds no reason for changing the views expressed in the oplrn ion heretofore handed down, or for adding anything to what was there said.

Nothing was said, however, in that opinion touching the prescription of one year pleaded in bar of the suit against the Natchez & Western Railroad Company, and the court will now supply that omission.

The Natchez & Western Railroad Company was cited on both the original and supplemental petitions within the prescriptive period, .and the two petitions, together, contained the allegation that the child was negligently killed on the road of said company by one of its trains operated by the other company. This set forth a cause of action against both companies, since, in Louisiana, as a legal conclusion for such a condition of facts, both companies are liable. Muntz v. Algiers R. R. Co., 111 La. 423, 35 South. 624, 64 L. R. A. 222, 100 Am. St. Rep. 495; Hamilton v. R. R. Co., 117 La. 243, 41 South. 560, 6 L. R. A. (N. S.) 787; I. C. R. R. Co. v. Barron, 5 Wall. 90, 18 L. Ed. 591; Ricketts v. C. & O. Co., 33 W. Va. 433, 10 S. E. 801, 7 L. R. A. 354, 25 Am. St. Rep. 901; Railroad Co. v. Brown, 17 Wall. 445, 21 L. Ed. 675; Railroad Co. v. Stewart, 155 U. S. 350, 15 Sup. Ct. 136, 39 L. Ed. 176; Harden v. Railroad Co., 129 N. C. 354, 40 S. E. 184, 55 L. R. A. 784, 85 Am. St. Rep. 747; Lee v. Southern Pac. R. Co., 116 Cal. 97, 47 Pac. 932, 38 L. R. A. 71, 58 Am. St. Rep. 140. Note Caruthers v. Railroad Co., 59 Kan. 629, 54 Pac. 673, 44 L. R. A. 739; Davis v. Railroad Co., 117 La. 325, 41 South. 587.

The judgment heretofore handed down is therefore reinstated and made the final judgment of this court.  