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other employees of the defendant company in hauling the milFs
products of the lumber company to the main trunk of the de-
fendant road.

The spur track measures about one thousand feet in length,
and begins at the east line of the main trunk, and runs in a
westerly ^** direction through the mill-yard of the lumber com-
pany to a point across a street known as Cypress.

Platforms at places are erected about the level of the floor of

Digitized by


S80 Bollinger v. Texas etc. Ry. Co. [LonisUiu^

the can, on either dde of the spur^ and a space of about one foot
was left on each side, between the platf oim and the car.

Frequently during the day the railway company hauls loaded
cars from the spur to be coupled with the passing freight trains.
Cars are also left on this track to be loaded by the laborers in the
service of the Whitecastle Lumber and Shingle Company.
There are quite a number of laborers and other employees of this
company who dwell in houses near this track. It is stated that
when there are a number of freight-cars standing on the spur,
the employees quite often pass through the cars from one side
of the track to the other, as it is quite conyenient The water
supply of the company was on the south side of the track. The
dwelling-house of the plaintiff on the north.

On the 14th of August, 1893, the plaintiff sent his son, a
bright lad, for water to the artesian well, on the south side of the

There were two ways — one, the conyenient, through the cars,
or the other around the cars. Boylike, naturally he chose the
former. As he entered the car a locomotiye began to pull the cars
toward the main track.

A witness, the only witness who was present when the acci-
dent occurred, stepped on the car from the platform. The boy
was at the time in the car leaning against the door casing. He
did not see the boy get in; nor did anyone else. The car in
will eh they were was partly loaded with laths. It was a stock-
car, not a close box-car. Having just commenced to pull out,
the movement of the cars was not rapid when this witness
stepped onto the train. It was a moment after the witness
stepped in that the car touched the platform, where there was
a defect in the track, and pressed against the sliding door and
closed it violently against the head of the boy. The oscillation
converted the sliding door and its post into an improvised trap,
which would seize, and did seize, the lad's head. The employees
of the defendant, who were operating the locomotive and the cars,
testify that the usual warning was given to give notice that they
were coupling the cars and about to move. That at the time
of leaving for the main track they did not see anyone on the
stock-car in question. The foregoing are the facts disclosed by
the evidence.

^** The chief contention in behalf of plaintiff is that it was
common for the employees and members of their families to cross
the spur track through the cars when they are open. Conced-
ing that it was usual, it none the less devolved upon those

Digitized by


Aprili 1895.] BollingeiL v« Texas etc. Ry. Co. 881

croesing to exercise due care and prudence. It was, at
cnstomaiy to cross. This did not involye a ride of some distance
on the moving train.

It is not our impression that he could not have stepped across
immediately after he had stepped into the car. He must have
known that the engine was coupled to the car^ and that unless he
hastened to pass, he would he carried away with the moving train.
He did not^ after the car was hauled away^ hecome a passenger,
entitled to the protection due a passenger, or to one who is in-
vited on the train, and, therefore, whatever negligence on the
part of the defendant there may have heen in not repairing the
track was not legal cause for complaint on the part of anyone
who thus continued on the train. He did not come within the
measure of the duty of the carrier to his passenger, or of the em-
ployer to his employee. The risk of passing through the can
likely to get on the way at any moment, or in the act of moving,
was apparent and should not have been taken.

We have thus far assumed that he was not negligent in at-
tempting to cross as he did, but it is not in proof that the spur
track was filled with cars at the time, and that it was not pos-
sible to pass at some other point without the greatest incon-
venience. There were four or five cars, as we understand from
the evidence, standing on this track. There was, we judge, very *
little difference in the distance to the well to which it was his in-
tention to go for water. The injury might have been avoided
by walking a few yards further. In view of the fact that cars
were being moved, it was imprudent to attempt to pass through
the open doors of one of the number.

Where a boy climbed in play into an open freight car standing,
and was injured by the falling upon him of the door of the car,
which was insecurely hung, the court considered that ''the fact
that the defendant knew that the car was left upon the track
where it would be an enticing, attractive, and inviting object
to children, and that the children were and had been accustomed
in and about such cars, upon the defendant's sidetrack, was not
an invitation or inducement '^^ held oat by the plaintiff to the
defendant, and that the defendant owed no duty to the plaintiff,
he being a trespasser'': Boswell on Personal Injuries, p. 104, par.
78. See, also. Beach on Contributory Negligence, 2d ed., p. 874^
par. 218.

'OSut that there has grown up a habit on the part of individ-
uals, or of the public generaUy,to travel over the track on foot,'ancl
that no measures have been taken to prevent it, does not change

Digitized by


382 Baasheab v. Houston etc. B. R. Cq. [LouisianSy

the rdatiye rights and obligations of the public and the com-
pany. It is not the less a trespass in that it is repeated or that
there are many trespassers": Beach on Contributory Negligence^
sec. 212.

In the light of doctrine and authorities^ we are of opinion
that plaintiffs cannot recover damages for the loss and severe
affliction sustained. Our brother of the district court excluded
the testimony offered to prove the habit alleged of passing
through the car. We have none the less given due weight to the
facts alleged upon that point.

It is therefore ordered, adjudged, and decreed that the verdict
of the jury and the judgment of the court based thereon are
affirmed at appellant's costs.


The act of a ^rown person, or of a boy between nine and ten years ol
age, in climbing over standing cars, or in attempting to pass between
freight-cars standing on one of the sidetracks across a street, withoat
looking to see whether they are attached to an engine or not, or in dis-
regarding the situation if an engine is found to be attached, is such
contributory negligence as to prevent any recovery for injuries received
while BO doing: Corcoran v. St. Louis etc. Ry. Co., 105 Mo. 899; 24
Am. St. Rep. 394; Burger v. Missouri Pac. Ry. Co., 112 Mo. 238; 34
Am. St. Rep. 879; note to Spencer v. Baltimore etc. R. R. Co., 54 Am,
Rep. 272, 274, showing a conflict of authority on the question. The sub-
ject of negligence in dealing with children is treated in an extended
note to Barnes v. Shreveport City R. R. Co., post, p. 400 A failure to
avoid apparent danger is contributory negligence; Note to SavanniJi
etc. Ry. Co. t. Flannagan, 14 Am. St. Rep. 188.

Bbashear V. Houston, Central Arkansas, and

Northern Railroad Company.

[47 LouniANA Annual, 786.]

TION WITHOUT SLOWING UP.— A passenger on a railroad train,
-with a ticket for a station at which it is not customary for the train to
stop, but to slow its movement, so as to allow passengers to alight, if
called to the platform by the announcement of the station, where he
is thrown from the steps of the car and Injured by a sudden Increase
of the speed of the train, which should be slowed or stopped, Is entitled
to damages, though he is thrown from the car on the side opposite to
his station, the train having passed it and the passenger having
crossed to the other side of the train under the reasonable expecta-
tion thai it would bo slowed nt his destination, a few feet beyond the

APPEAL— EXCESSIVE DA^fAGES.— If a passenger, while en-
deavoring to alight from a movlncr railroad train, ts not seriously In-
jured, and works at his business after the accident with no diminutloa

Digitized by


April, 1895.] Brabhbab v. Houston £tg. R. R. Ca 888

of hli physical ability apparent to his fellow workmen, though he to
subsequently made sick from the effects of the fall, a verdict of three
thousand dollars is excessive, and the appellate court will reverse the
Judgment, but will allow five hundred dollars, to cover the expensee
of sickness and loss of time, with some allowance for suffering.

Frederick G. Hudson, for the appellant.

H. H. White, for the appellee.

''»'' MILLER, J. The plaintiff, a passenger on defendants'
train, alleges he was thrown with violence to the ground by the
movement of the cars while he was endeavoring to alight at his
place of destination. The defense is the general issue and con-
tributory negligence. The judgment of the lower court, based
on the verdict of a jury, was against the defendant for three
thousand dollars, and defendant appeals.

The plaintiff's ticket on the train was for a flag station, at
which the trains made no stop, unless flagged or to put out pas-
sengers, and the testimony is that, for the last purpose, it was
customary to slow the train instead of coming to a full stop. It
is in proof that, as the train approached, the station was called hy
the train ofiicials, and accordingly plaintiff went to the platform ,
to find that the train had passed his station. He supposed the
purpose was to put him off at the mill where he was working, a
short distance from the station, and with that idea he stood on
the steps of the car, but, instead of slowing, the train, as the
petition alleges, "gave a sudden jerk,'* which threw him to the
ground. If not this jerk, it is in proof the speed of the train was
increased, so that there was no slowing, either at the plaintiff's
station, or after it was passed to enable plaintiff to alight. The
plaintiff's testimony is, he was thrown from the train, nor is
there any testimony that he made the attempt to alight from the
''** moving train. We note the reference in the brief of the de-
fendant to the petition, and the inference from the petition, it is
claimed, is that plaintiff's fall was due to his stepping or jumping
from the train. The allegations were, the custom of the trains
to slow and not to stop at the station; that plaintiff was familiar
with the custom, and had on several occasions got off while the
train was in motion; that as the station was neared the usual
stopping signals were given, that plaintiff went to the platform,
and when about to step off there was the jerk and increased
speed, throwing him to the ground. We do not think there is
any sensible variance between the petition and the plaintiff's tes-
timony that he was thrown from the train, and, as stated, he is
not contradicted on that point

Digitized by


884 Bbabhear v. Houston etc. R. B. Ca [Louisiaoii

In our appreciation of the testimony, the defense that the pu-
senger, carried beyond his station^ cannot recover for injurieB ea-
sning iErom attempting to leave a train in motion, has no applica-
tion. That defense is recognized in the text-books and adjudi-
cated cases: 1 Thompson on Negligence, 115; Damont t. New
Orleans etc. E. B. Co., 9 La. Ann. 441; 61 Am. Dec. 214; dtmg
the leading Pennsylvania decision of Aspell v. Bailroad Co.,
Walker v. Vicksburg etc. B. B. Co., 41 La. Ann. 796; 17 Am. St
Bep. 414. If, indeed, under the impulse of the moment due to
the signal of the train official, and the custom not to come to a
stop, the plaintiff had jumped, his imprudence might, perhajM,
be deemed attributable to the implied direction of the company.
It has been held that where the imprudence of the passenger,
under such circumstances, is due to the error or fault of the train
official, he will not be disentitled to recover for injuries: Whar-
ton on Negligence, sees. 375, 877; 2 Bedfield on Bailways, eec
194; 2 Thompson on Negligence, 1174; Lehman ▼. Louisiana etc
B. B. Co., 37 La. Ann. 708; Odom v. St. Louis etc. B. B. Co., 4S
La. Ann. 1201. The plaintiff was invited by the train signal to
leave his seat and go to the platform. Under the natural ex-
pectation the train would slow, if not stop, to enable him to
alight, it cannot be deemed negligence that he stood on the atepi
of the car. It is urged on us that his station was passed, and he
went from one, i. e., the station side, to the other, and was stand-
ing on the steps on that side when the accident occurred. Thii
was because he supposed, as he states, not putting him out at the
station, it was intended to slow up at the mill a few feet beyond.
We cannot hold this change in his position, induced by the
natural expectation of a chance to alight, the company owes to
its passengers, charges the plaintiff with negligence. ^^^ Galled
to the platform and to the steps of the car, for that is the signif-
icance of the whistle and the announcement of the station by the
train official, the train is neither slowed or stopped, passes the
station and the mill with a speed accelerated, when it ahonid
have been diminished, and the result the plaintiff is thrown to
the ground and injured. We think the record shows a case of
responsibility of the defendant

We have given very carefid attention to the question of dam-
ages. The plaintiff describes himself as a handy laboring maSy
had followed blacksmithing, repairing machinery, and had f6l<
lowed farming; when worldng he received two dollars and fiftj
cents per day, and when the accident occurred was engaged in
making a ''skb conveyer," for which he was to get fiftj doOaia

Digitized by


Aprily 1895.] Brabhbab v. Houston etc. R. B. Oa 885

The fall braised him in his back, ribs, and shonlden. He te**
tifies his arm was disabled, his leg shortened, and other resulting
injuries are stated by him. There is in the record the testimony^
of a number of physicians. Two called by plaintiflf testify to the
injuries, but the statement from one as to the result of the in-
juries is that his sufferings may be serious, accompanied with the
qualification he may recover. Another physician, who called on
the plaintiff with his family physician, negatives any serious in-
juries to plaintiff. Two physicians, experts, appointed by the
court to examine plaintiff, report no injuries to shoulders, hip,
back, or legs, no difference in the length of the legs, and ascribe
plaintiff's pains to some nervous trouble. We cannot find in the
record any satisfactory basis for damages, on the theory of per-
manent diminution of the plaintiff^s working capacity.

It weighs with us, too, that the plaintiff, after the accident,
worked at his job with no diminution of his physical ability ap-
parent to his fellow workmen; but, of course, the effects of the
fall might not then have been developed. Indeed, we think it
proved the plaintiff was made sick later from the effects of the falL
The jury gave three thousand dollars. We cannot perceive the
basis for this verdict. We think the damages should cover the
expenses of his sickness and loss of time, and some allowance
should be made for his suffering. But from the examination of
the record we are brought to the conclusion the judgment should
be reduced.

It is therefore ordered, adjudged, and decreed that the judg-
ment of the lower court be avoided and reversed, and it is now
ordered, ^^ adjudged, and decreed that the plaintiff recover
from defendant five hundred dollars, with interest from date of
judgment of the lower court, and the costs of the lower court,
those of the appeal to be paid by him.

RAHiBOADS. — IT IS NEGLIGENCE in a railroad company to
■addenly and violently start ita train when passengers are expected to
be gettins off, althoagh the train has not oome to a fall stop and is
moving slowly: See note to Walker v. Vicksbnrg etc. R. R. Co., 17
Am.St. Rep. 429; and it is liable for injuries to passengers if too little
time is afforded them to alifrht at their destination : Pennsylvania R. R,
Co. V. Kilgore, 82 Pa. St. 202; 72 Am. Dec. 787; Fairmoontete. By. Co.
w. Stntler, 54 Pa. St. 875; 98 Am. Deo. 714.

AM. 8r. Rv., VOL. XLQL— a

Digitized by


886 STANOiJiD C. S. 0. Co. V. Bzgslbiob R. Co. [Louisiaoa,

Standard Cotton Sbbd Oil Company f^. Exosl-
siOR Refining Company.

[17 LoxnsiAKA Annual, 781.1

ties make a contract on the tenth day of January for the sale of prime
crude cotton-seed oil, to be thereafter manufactured and to be deliT-
ered as made, the quality of oil contracted for is necessarily that kind
which can be manufactured at that late season by the seller.

Action on contract The Standard Cotton Seed Oil Com-
pany, the plaintiff, on January 10, 1894, sold to the defendant,
the Excelsior Refining Company, five hundred barrels of prime
crude cotton-seed oil. Shortly afterwards the plaintiff delivered
and received pay for one hundred and twenty-four barrels of
oil. A little later the plaintiff tendered the remainder of the
five hundred barrels, but the defendant, on the ground of in-
ability to pay, requested the plaintiflE to sell the remainder of the
five hundred barrels to other persons and allow it to take a like
number of barrels thereafter.. The plaintiff, in conformity with
this request, sold such remainder to the Union Oil Company,
which was accepted and paid for as being up to the grade of
oil stipulated. Under the second contract, the plaintiff ten-
dered oil made by it to the defendant, which the latter at first
declined to receive, because it was not prepared to pay the price,
and subsequently, upon the ground that the oil tendered was not
up to the grade of oil stipulated. The question as to whether
the oil tendered was prime or not was, by consent, submitted to
arbitration. The arbitrators differed in opinion. One of them
reported that the oil was "crude — made of slightly mixed seed —
seed over-cooked. Oil not settled — not prime." The other re-
ported: "I have critically examined the said oil. I do not hesi-
tate to say that, in my opinion, it is fully prime, and should be ac-
cepted as such.*^ W. A. Lawler was appointed an umpire, in
view of tliis disagreement. His report was: "I call the oil prime
crude cotton-seed oil of the season. The oil is not properly set-
tled — containing light settlings." The arbitrators then joined
in a report as follows: "The umpire's opinion, as above ex-
pressed, is in favor of the plaintiff, and therefore makes the oil
offered by the said mill a good tender." The defendant com-
pany refused to accept or approve this report, and called in ques-
tion the right of the arbitrators to express any opinion as to the
conclusions of the umpire, insisting that his report was really in
its favor. The plaintiff, in the mean time and after notice to the
defendant, sold the oil at a loss for account of defendant. The

■ Digitized by


April, 1896.] Standard C. S. 0. Co. v. Ezcelbiob IL Ca 387

plaintiff sued for the price under the contracts, subject to the
credits resulting from the subsequent sales for account of de-
fendant The defendant obtained judgment, and the plaintiff

Qus A. Breauz and Percy Roberts, for the appellant

Gilmore & Baldwin, for the appellee.

''** NICHOLLS, C. J. A great many witnesses were placed
upon the stand, and a great deal of testimony was taken as to
whether there was any difference between ''prime crude cotton-
seed oil'^ and ''prime crude cotton-seed oil of the season," as to
what that difference was, and whether the former quality of oil
was better or worse than the latter. Among the witnesses ex-
amined were the two arbitrators and Lawler, the umpire.

Plaintiff attempted to elicit from Lawler, as a witness, his
opinion as to whether the oil tendered was a good tender under
the contracts, but defendant successfully objected to his answer-
ing questions directed to that end, on the ground that that was
matter for the court, and not the witness, to pass upon, but none
the less we think his opinion pretty clearly appears from the evi-
dence actually received.

He said, among other things: "The difference [between the
two classiiieations of oils] is this: prime crude cotton-seed oil is
made from seed in the early part of the season, while the seed is
nice and i^sh. You can store away a thousand barrels of such
oil in tanks and put it on the market in March, and you can take
oil that is made from good sound seed and you will find that
there is a difference in the oils, both in color, taste, odor, and re-
fining properties in favor of the oil of the early months of the
year — ^the first oil made.

The following questions and answers followed:

'^^ Q. A contract is made for oil on the 10th of January for
oil delivered the last of January and the early part of February,,
the oil to be made under that contract and to be delivered on that
contract; I ask you if an oil of that kind, with good color, with
proper smell, proper taste, and with light settlings, would be ac-
cepted under a contract for prime crude oil? A. Well, I con-
sider oil prime whether it has got settlings in it or not

Q. It is prime? A. Yes, sir.

Q. In other words, there is settlings in all oils? A. An oil
may be prime and good, but it may not be well settled.

Q. What I want to get is this: Here is a contract made on
January 10th for prime crude oil delivered in the latter part of

Digitized by


Standard G. S. 0. Co. v. Ezcslsiob R. Co. [LooisUnai

January and in the early part of February; now I wani to know
from you whether or not such oil, oil as you examined, whether
or not that oil should have been receivable under that contract?

(Defendant's counsel objected as aboye stated.)

Q. This is your decision, Mr. Lawler, which I now hand you?
A. Yes, sir.

Q. Now, I want to know precisely what you mean; I cannot
determine from that whether you determined that oil could be
delivered under the contract or not?

(Defendant's counsel objected to any statement of the witness
that the oil is receivable under the contract, because the contract
speaks for itself, and on the ground that if there is anything am-
biguous in the contract it should be considered against the

By the Witness: What I mean by "crude cotton-seed oil of the
season,'' when I mentioned those two samples taken from those
two cars, I mean that it was oil that was perfect in every respect,
and as good oil as could be made out of sound seed, at that time,
properly handled.

By the Court: Do you mean that it was as good as prime crude
cotton-seed oil?

A. It was not as good as oil that could be made out of seed
during the months of October, November, and December.

Q. Was it such oil as the people interested in the contract
would call for? A. I have never seen the contract.

''®* Q. Well, the contract calls for prime cotton-seed oil on
the tenth day of January, deliverable in the latter part of Janu-
ary and the first part of February. Here is the contract; I will
read it to you. (Counsel reads the contract.)

A. This oil, if I remember aright, had a good deal of light set-
tlings in it.

Q. That is your opinion? A. No, sir; not my opinion merely.
I should have considered it good delivery, but as tiie oil was not
well settled — ^the contract not saying anything about well-settled
oil — ^it is between the buyer and vendor to settle this matter.

Q. In other words, you did not decide whether it was a good
delivery or not? A. No, sir; I am not able to, on account of the

Lapeyre, the refiner of the defendant, upon the stand as a
witness, being asked the question whether there was a difference
in the trade between "prime crude cotton-seed oil" and '^rime
crude cotton-seed oil of the season," answered: '^ell, there is
only one quality of prime crude cotton-seed oil, as I said^ P^p-

Digitized by


Aprils 1896.] 8TAin>ARD C. S. 0. Co. «• Excslbiob B. Oa 889

criy manipulated^ and you can only get it at one season of the

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 44 of 121)