
    METOYER v. TEXAS & P. RY. CO.
    No. 5512.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1937.
    Frank H. Peterman, of Alexandria, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, for appellant.
    J. D. Rusca, of Natchitoches, for ap-pellee.
   DREW, Judge.

Plaintiff instituted this suit to collect $300, the alleged value of two mules killed by a passenger train of defendant on the night of October 12, 1935. The accident occurred in the country between the stations of Derry and Montrose.

Defendant admits the killing of the mules, but denies that same was due to any negligence or carelessness on its part.

The lower court rendered judgment for plaintiff as prayed for and the defendant has perfected this appeal.

There is little or no dispute as to the facts of the case. The train which killed the mules was a fast through passenger consisting of an engine and eight coaches. The place of the accident was in the country. The train was running on schedule time at a speed of. sixty miles per hour. The right of way was fenced in, and it is not shown where or how the mules got onto the right of way. The headlights on the engine were burning and were bright enough for an object to be discerned 800 feet ahead in clear weather. The time of the accident was just before daylight. The train could not be brought to a stop, when traveling as fast as it was, in a lesser distance than 1,800 feet. Due to a fog the engineer and fireman did not see the mules until within a distance of about' 100 feet, at which time the brakes were applied, the whistle sounded, and the bell rung. The distance was too short within which to stop the train. The mules did not move after being discovered on the track by the engineer and fireman.

Under such facts as above found in this case, and over which there can be no serious dispute, the courts have repeatedly held the railroad company is not liable. McLemore v. Louisiana Railway Co., 17 La.App. 74, 135 So. 244; Wallace v. Missouri Railway Co. (La.App.) 151 So. 103; Jeter v. Texas & P. Railway Co. (La.App.) 149 So. 144; Boyd v. Kansas City Railway Co. (La.App.) 147 So. 100: Sanders v. Illinois Cent. Railway Co., 127 La. 917, 54 So. 147; Campbell & Co. v. Texas & P. Railway Co. (La.App.) 152 So. 351.

The accident was entirely unavoidable in so far as the defendant was concerned and it is not liable.

The judgment of the lower court is erroneous, and is now reversed and the demands of plaintiff rejected, at his cost.  