It is admitted that the only question presented to us is the application of the doctrine of last clear chance, or discovered peril, as recently announced in the case of Rottman v. Beverly,183 La. 947, 165 So. 153, 157, and its application thereto.
It then becomes necessary for us to determine when the crew of defendant's train discovered the deceased's peril. The majority opinion of this court is to the effect that the train crew only discovered this peril at some five or six hundred feet away from the deceased. I am of the contrary opinion, being my interpretation of the admitted facts that the train crew discovered the peril at least some 1700 feet from the point of the accident. The engineer and the fireman both testified that, when the train executed a curve over 1700 feet away from the point of the accident, they saw or noticed the deceased walking between the rails of the track; they further testified that, from that moment on, they had the deceased under constant observation, and watching every movement of his; they further testified that upon reaching a point some 1700 feet from the deceased (sufficient time to bring the train to a complete stop or to have the train under its complete control) they gave the alarm to attract the attention of the deceased of the oncoming train, yet the deceased did nothing to indicate to them that he had had notice of the oncoming train, they presuming that he would get off of the track and save himself from the danger; they did nothing more but continued to observe the deceased in his walking between the rails, without even turning his head around to notice the train, if any, was approaching him from behind. This, to me, is sufficient to charge defendant's crew with the knowledge that deceased was unmindful of the perilous situation in which he had placed himself, and that there was something radically wrong with the deceased. It is, at this point, that I say that the deceased's peril was discovered by defendant's train crew instead as contended by the majority of this court. The speed of the train was not moderated, or anything else done, save and except at a point some five or six hundred feet away from the deceased (a distance admitted by the engineer to be too short within which to bring his train to a stop to avert the accident) when the engineer gave the stock alarm; to which alarm the deceased did not heed. The engineer only applied his emergency brakes at a point some two to three hundred feet from the deceased, without any hopes however of saving the life of the deceased.
It is from the point of giving the stock alarm that the majority of this court is of the opinion that the defendant's train crew discovered the peril. Yet it must be remembered that the engineer testified that it was physically impossible for him to stop the train, at the speed it was traveling, within such a short space, and that the train could not be stopped in less than 900 feet; it must also be remembered that the train crew testified that they saw and noticed and had the deceased under constant observation for more than a third of a mile, and that they had actual knowledge that the deceased had not reacted to their signal of danger given at a point of 1700 feet away, yet doing nothing but the giving of this alarm when some five or six hundred feet away from deceased. Then, from my point of view, the train crew did a useless thing, serving no purpose whatsoever, and it cannot be now said that the train crew only discovered the peril within the five or six hundred feet of deceased; and in the language of Justice Odom, in the case of Rottman v. Beverly, supra, "But he had waited too long." It is therefore my opinion, as stated before, that the train crew discovered the peril at the first blowing of the whistle, some 1700 feet away, and should have taken precaution, then and there, and not await until too short a distance to stop its train. To say that the engineer only discovered the perilous position of the deceased at any other point does violence to the first statement of the case wherein it is stated that the engineer and fireman both saw and noticed that the deceased had not given heed to the previous warning by the blowing of the whistle at some 1700 feet away.
It is contended that the engineer was justified in assuming that the deceased would step off of the track in time to prevent being hit. The train crew, having discovered the deceased in a perilous position some 1700 feet away, was in no position to indulge in presumptions. They were confronted with a condition, not a theory. They did nothing to prevent the accident. *Page 484
We held in the recent case of Jackson v. Cook, 176 So. 622, decided on Nov. 6, 1937, interpreting the case of Rottman v. Beverly, supra, that the negligence of a driver of an automobile must be considered from the time he actually discovered the perilous position of the person and not from the time he should have discovered it. My views in the present case are in accord therewith, in that the engineer in this case did discover the perilous position of decedent some 1700 feet away, ample time to use all possible means at his disposal to avert the accident, and which he failed to do.
The doctrine as announced in the case of Rottman v. Beverly, supra, was affirmed in the case of Hicks v. Texas N. O. Ry. Co., 186 La. 1008, 173 So. 745; and in that case the Supreme Court held the defendant liable because the operator of the motorcar of defendant saw the perilous position of plaintiff in time to avert the accident and he did nothing (as in our case) to avert the same.
This case does not present nor involve the negligence of the engineer to the effect that he is charged with seeing that which he should have seen, but having seen for a distance of over 1700 feet the perilous position of deceased and doing nothing to save him from his eminent death. I am of the opinion that the language of Justice Odom, in the Rottman Case, is applicable to the present one, that is: "But if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can. The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger (no question here but that the engineer did keep a sharp lookout and did discover the deceased on the tracks). If they perform that duty and discover that some one is in danger, then a second duty arises, and that is to use every possible means to avert injury. If the defendant fails to perform that duty, his negligence in that respect is regarded as the proximate and immediate cause of the injury and the negligence of the plaintiff in putting himself in a place of danger, the remote cause. In such cases the last clear chance doctrine applies even though plaintiff's negligence continues up to the accident."
In writing this dissenting opinion, I am not unmindful of the fact that the engineer was in charge of a locomotive driven on a railroad track, the right of way of which belongs to the railroad which must meet competition, and is regulated by governmental agencies, and that it is an object of difficult control in case of an emergency; I am not also unmindful that the deceased was a trespasser. Yet, I am of the opinion that those in charge should use these instrumentalities having due regard to human life and property.
For these reasons, I am of the opinion that the doctrine of last clear chance is applicable and that the defendant is liable, as held by the lower court, and I am of the opinion that the judgment appealed from should be affirmed. I therefore respectfully dissent.