The decision announced in the majority opinion would be entirely correct if the accident in question had happened in an open country at a place which was devoid of human habitation. Here, however, the unfortunate tragedy occurred only 1,875 feet from the corporate limits of the city of Natchitoches, wherein the Louisiana State Normal College is situated, while defendant's train was speeding at the rate of 60 miles per hour. Many persons walk along the tracks at this location, going to and coming from their work in Natchitoches, and several well-defined footpaths are there, all to the knowledge of defendant and those who were in charge of the train. The neighborhood consists of approximately a dozen residences and several other buildings, is generally improved, and, therefore, may be said to be somewhat thickly settled. Two public roads cross the track in that locality. The majority opinion correctly and properly describes the community as a suburb of the city of Natchitoches.
Considering the facts and circumstances herein, it is my belief that the doctrines announced by the Supreme Court in Jones v. Chicago, R. I. Pac. Ry. Co., 162 La. 690, 111 So. 62, 64, and Blackburn v. Louisiana Ry. Nav. Co., 144 La. 520, 80 So. 708,711, are applicable and controlling in the case at bar.
In the Jones Case the court said:
"The real question to be determined is whether the engineer is shown to have had knowledge of the fact that, in the particular place where the deceased was killed, the track was used daily as a pathway by pedestrians going and returning to their homes from that town, and that these people lived in the vicinity of Ruston near the railroad right of way. The proof is that the engineer was aware of these facts. Counsel for defendant relies upon the cases of Rogers v. L. R. N. Co., 143 La. 58, 78 So. 237; and Tyer v. G., C. S. F. R. Co., 143 La. 177, 78 So. 438.
"In the Rogers Case the court said:
"`The place where the accident occurred is about 204 feet east of the crossing of the Alexandria Western railroad, on the outskirts east of the city of Alexandria. On one side of the track is an open field, on the other side a thicket. There are no human habitations in that neighborhood, and there are no public roads near or crossing the railroad track. In other words, it is a place where no one would reasonably expect to find any human being between 10:30 and 11 o'clock at night.'
"There is a marked similarity in this case and the case at bar, in that in each case the engineer saw the object on the track when about 300 feet away, and did not discover that it was a human being until within about 50 feet away, when it was too late to avoid the accident; but there is a marked dissimilarity in the two, in that in the Rogers Case the body was on the track at a place where `there are no human habitations in that neighborhood, and there are no public roads near or crossing the railroad track. In other words, it is a place where no one would reasonably expect to find any human being between *Page 509 10:30 and 11 o'clock at night,' whereas, in the case at bar, the body of the deceased was on the track between two public crossings on the outskirts of the town of Ruston, where there were numerous habitations near the track, and where the track was commonly used as a pathway by pedestrians.
"In the Tyer Case the deceased was lying face down upon the track in the woods, remote from human habitation. No one would expect a human being to lie down upon the track in such a place. The engineer discovered that the object he saw was a human being when the locomotive was within 60 or 70 feet of it, when it was too late to stop the train in time to avoid the accident. The cases are not authority for holding that an engineer, after seeing an object on the track is, under all circumstances, justified in maintaining the speed of his train until he is satisfied that the object he has seen on the track is a human being. The location of the object, the public's use of the track, the proximity of habitations thereto, if within the knowledge of the engineer, are elements in determining whether or not, under the particular circumstances shown, the engineer was negligent, and whether he could by timely action have prevented the accident. There is no fixed rule in the jurisprudence of this state determining when the engineer shall stop his train after he discovers that some object, the nature of which he does not know, is on the track, but the opinions of this court in such cases are based primarily upon the special facts of each case. When it appears that the engineer knew that a portion of the track was used by pedestrians daily, and that these pedestrians lived near the right of way of the railroad, he must exercise greater caution in the operation of his train than will be required of him under other circumstances. * * *
"With these facts proven, and it appearing that the engineer had knowledge of them, the Court of Appeal held that the authorities relied upon by defendant's counsel do not apply, and that the failure of the engineer to exercise extra precaution to avoid injury to persons who might be on defendant's track at the point where the deceased was killed was negligence, for which the defendant is liable under the doctrine of the last clear chance. * * *
"We think the ruling of the Court of Appeal is correct."
We find the following in the Blackburn Case:
"In our opinion this case must turn upon the failure of the engineer or fireman to see deceased in time to stop and avoid striking him. As indicated heretofore, the active phases of his gross negligence were spent, and he was in such a position of apparent helplessness as to have been seen and his condition appreciated had the proper precautions been observed. It will not do for railroad companies to run their trains into and through thickly populated towns and cities, by depots and places where people are known to frequent, at such high rates of speed, their employees not seeing that which, by the exercise of ordinary care, they should see, and then be permitted to escape liability because of the inability of such employees to stop the trains when the danger is actually discovered. Under such circumstances, ordinary prudence should induce them to get their trains under such control as, with a careful watchout, they will be able to stop when necessary. In other words, increasing caution with danger, such speed only should be maintained as will enable them, with the light available, whether natural or artificial, to see persons or objects upon their tracks, and by the use of modern appliances to stop and avoid striking them, if the necessity should appear to a reasonable mind. If this were not required, they might as well pull the throttle open and go through at full speed, in so far as any good might result from an effort to stop when running at such a speed as would not permit it to be done after seeing the danger. This train was either running at such a rate of speed that it could not be stopped within the distance objects on the track could be seen, or the lights were defective, or the trainmen were not keeping a proper lookout. Whichever may have been the case, that was the proximate cause of the injury. If there were difficulties against seeing, this was all the more reason why greater care should have been used. At the place where Blackburn was killed, the railroad track was used as much as the street, to the knowledge of defendant and those in charge of the train. It was a case of the last clear chance, and the chance was, or should have been, with the defendant.
"We may add that both the deceased and the employees of defendant were guilty of the grossest negligence, the one in getting *Page 510 drunk and lying down upon a railroad track, and the other in running through a populous town and frequented depot grounds, and a place where people might be expected to be, without exercising proper care. But Blackburn was no longer capable of exercising powers of discretion, and proper precautions by defendant would have discovered that condition, whereas the active negligence of defendant continued down to the time of striking deceased."
It is my opinion that under the circumstances, and by reason of the doctrines enunciated in the above-cited cases, defendant's train should have been under a control which would have permitted its being stopped in time to avoid the accident. Failure in this respect was the proximate cause of Pinckley's death.
Accordingly, I respectfully dissent.