On Application for Rehearing.
Monroe, J.In their application for rehearing, counsel for defendant attempt to place the court in the attitude of having accepted as proven by the testimony of Ohotin that the side bearings were locked, when he examined the car, after it had been replaced on the tracks, and they say: “Apart from direct contradiction by Joret, Blancbn, Maitland, Fields and Callan, Ohotin’s statement is branded as absurd and false by the admitted impossibility of the cars standing on .the rails on a straight track, where he pretends he saw it, with the side bearings locked by the top plate swinging down against the lower one. * * * How the .court could have failed to realize that, beyond the question of the condition of the car when derailed there was still the question of its condition after being put on the track, is surprising enough, but that the court should have paid no attention to this physical rebuttal of Chotiu is astounding.”
There is nothing in the opinion to sustain this ¡attempt or to occasion the astonishment thus expressed. It is true that, referring, in general ■terms, to the testimony given by the different witnesses, the opinion mentions the fact that Ohotin testified that the plates were locked, when he examined the car; but that particular statement was not made the basis of the judgment, nor is it so intimated. And, possibly, an injustice was done to the witness in not giving (has ¡testimony mope fully, since it appears doubtful whether he intended to convey the idea that the plates were locked when he examined the car, or merely that, from the condition as he then found it, he concluded that they had become lodked when t)he car entered the curve. Thus, the following was elicited from his cross-examination:
“Q. And you found these plates locked'?
*§£. Yes,
“Q. iiind ene ®£ the bolts missing out of that top plate?
<rK. (íüée of the puts was off and the offier was logse.
*371“Q. Did you examine the lower plate?
“A. Yes, sir; that was resting on the side bearings.
“Q. Now, how would that interfere?
“A. Well, the top plate was bearing on the side rests.
“Q. Well, how would that affect it? ,
“A. It would allow it to steer one way, but not the other.
“Q. Now I will place these two books one on top of the other; 'we will call the top book the top plate, and the lower book the lower plate. Now this top plate had a bolt, as you say, of only one inch. Can you explain how that would effect the curving of the car; in what way would it cause those two plates to lock?
“A. (Witness here explains to the jury.) The bolt was loose on one side of the top friction plate, and on the other side it was gone; and, the hanger pin being out, the car was lower and listed to one side; that would cause one of the plates to work to one side and be higher than the other, and in going into a- curve it would be locked and could not come back to its place, and that would keep the trucks from steering, and they would go straight on.”
The facts to which he. testified, therefore, were that one of the ibolts in the upper plate was missing, and the other loose; that fhe hanger pin was out of position; that the car was listed to one side, and that the “top plate was bearing on the side rests,” from which he appears to have deduced, rather as an opinión than a fact, that the plates had become locked, when the car entered the curve. And Fields, who examined the car at the same timq, and corroborates Ohotin as to the misplacement of the hanger pin, reached the same conclusion as 1 o the effect of that condition, as may be seen,from the following questions and answers in his examination as a witness for .the plaintiff:
“Q. State whether or not, the hanget pin being out of place, the-, trucks would slew so as to take a curve? ^
“A. No sir, not in my judgment. * * *
“Q. lYhen the hanger pin works out of its socket and the car drops, down, is it not a fact that that would cause the trucks to become rigid ?■
“A. Yes sir.”
This being the case, and the witness, Ohotin, being a plain workingman, with a limited vocabulary, it is hardly justifiable, upon a doubtful interpretation of his meaning, to make the chaigfe that 'his statement “is branded as absurd and false,” and i't is not a legitimate method . fi *372arguing for the counsel -to profess to be astonished that this court should have accepted that statement, so interpreted, as full proof, when, in point of fact, it was not, and the opinion handed down affords no. reason for supposing that it had been so accepted.
The counsel say in .their brief: “It is a misstatement of the facts to say that the ear reached Morgan City in a defective condition. With absolutely no basis for such a statement, why depend on the record at all, if essential facts are to be bodily supplied ex cathedral We say that the court has supplied this fact, without .any intention of suggesting that the court would knowingly make a misstatement, for we know that the court would do nothing of the kind,” etc. The expression in the opinion to which .this charge is directed reads as follows: “ Our conclusion, then, upon the whole case, is that it was the duty of the defendant to have had the car in question inspected in New Orleans; that that duty, if discharged at all, was not efficiently discharged; that the condition of the car when it reached Morgan City was defective; that the defect w.as attributable to .the defendant’s neglect to make proper inspection and repairs in New Orleans.” * * *
This conclusion was reached and expressed after as careful a consideration .and review as we were able to give, and to make, of all the undisputed facts and of all .the testimony in the case. It was a conclusion of fact, predicated upon the facts, which we believed to have been established, that the oar, if inspected at all, was not efficiently inspected in New Orleans; that, nothing having happened .to it which could .account for its defects, so far as shown or suggested, during the interval which elapsed between its arrival .at Morgan Oity and the moment of the accident, when the rear truck ran off a .track, which was in perfect; •order and free from obstructions and over which other cars in the •same, slowly moving train, and the forward truck of the particular car in question, had passed in safety; and that, immediately thereafter, defects were discovered in the truck, which, in our opinion, were sufficient, in the absence of suggestion of .any other known cause, to account for the derailment. And this, we take it, was the opinion of the .jury, which gave a verdict for the plaintiff in the sum of $12,300, and of the judgé before whom the case was tried and who made that'verdict the judgment of the court.
The counsel say: “To eke out Ohotin’s story, that, after the accident, the side bearings were locked, the court presumes that they were locked *373before the accident, and it reaches this conclusion by supposing that the king pin was ibent .on the trip.to Morgan City in consequence of the hanger pin being out; and that the hanger pin was out before the accident is likewise presumed.”
The charge that the court indulged in any presumption in order to “eke out Chotin’s story” has no foundation in fact, and the assertion that the court reached the conclusion that the plates were locked before the accident by supposing that the king pin was bent on the trip to Morgan City is equally unwarranted. As may be seen by reference to the opinion, it was said, referring to the testimony of certain witnesses for the defendant who undertook to testify as experts: “ They testified, generally, that the truck, while on a straight track, cannot turn far enough to allow the friction plates to become locked by getting the one behind the other, and that the listing of the car, resulting from the displacement of the hanger pin, cannot effect such a result and does not endanger the safety of the car. As to the first of these propositions, it may be said that the ear was not on a straight track, but that the rear truck was derailed when the forward truck had been carried into the switch, around a sharp curve, and because the rear truck, failing to follow, split the switch and kept on the main track, so that .the yard master reported, the car was twisted and made to lean over badly. The truck might, therefore, very well have reached the angle, as compared with the body of the car, which the witnesses think was necessary to the locking of the plates.” And the theory is then propounded that the plates might have become locked sidewise by reason of the listing of the car, and the ¡bending of the king bolt. It may be conceded that this latter theory is improbable and, perhaps, wholly unsound, and that, in all probability, the plates could not have become locked in the manner suggested; but that has nothing to do with the present question. There were two ways suggested by which -the plates might have become locked; the one, as we believe, a practicable and probable way; the other (as we now think) an improbable one, suggested and considered as a possibility, and the counsel have seen fit to ignore the former and to say that the court reached its conclusion, or presumption, upon the basis of the latter, alone; and, in doing so, they make use of the following language: “It is remarkable how little this case depends on fact. The issues have been settled ¡by pure mental effort, with an occasional reference to the record. We trust this criticism of the opin*374ion is proper; it may serve to direct the attention o£ the court to tha general defect in the opinion without which the case would certainly have been decided differently. The objectionable presumption to which we refer is that the court, finding that there could be no locking of ■the side bearings, without discovering somewhere a play of at least four inches, out of the normal between the upper and lower plates, carves the four inches out of the impossible.”
There was, ¡however, one fact commented on, with some emphasis, in the opinion, of which this application for rehearing offers no explanation. It is referred to in the following language: “We are, therefore, absolutely without reliable information, from any one who is willing to admit that he examined it, as to the condition of the car between the time that it was derailed and the time that it was replaced on the track. And this seems to us to require some explanation. Here was a little train, consisting of an engine and four ears, in charge of Joret, the yard master; two ibrakemen, Budge and Blancon; and, presumably, an engineer and a fireman. A truck was derailed and Budge crippled for life. Joret, the yard master, knew that it was his duty to replace the derailed car on the track, and to find out and report to the company the cause of the derailment. The witnesses all say that there was nothing the matter with the track. It seems to us, under the circumstances, that, in the discharge of his duty, Joret would, naturally, have examined the car before replacing it on the track, for the double purpose of ascertaining the cause of the accident and of finding out whether there was any defect in the car which would prevent Us being replaced. It seems to us, also that Blancon, and the yard crew, and the engineer, and the fireman, would naturally, as ia matter of interest or curiosity, have examined the car before putting it again on the track from which it had just, apparently, derailed itself without cause, in order to solve the mystery and protect themselves and the company from another, and perhaps even more disastrous derailment. Taking it altogether, it looks somewhat as though. Joret and Blancon were afraid that if they examined the car they might acquire some information that they did not care to possess. And we are left to conjecture as to whether such information was not acquired by the engineer, the fireman, and the yard crew. Joret was, however, obliged to make his report, and he therein states that the rear truck split the switch; and, as he testifies that the track was in good order, and *375that the several trucks which had immediately preceded that which was derailed had not split the switch, it would seem to follow that the derailed truck must have differed in some way from the others, and it appears to us not unlikely that the difference, which caused one truck to split the switch when the others did not, was ¡that the one was, for some reason, immobile, and held on to the main track, whilst the others took the curve, and it may be .that the immobility was so cured in replacing the truck on the track as to make it comparatively safe for those who were afraid of acquiring too much information thereafter to inspect it, though not thoroughly, as we understand the yard master to say that he never did inspect it thoroughly.”
Eeferring to some of the language used in the foregoing excerpt, the counsel for the defendant say: “We are appalled at such a declaration as this from the count. We cannot refrain from saying that this seems to evidence quite a strong feeling on the part of the court against these particular witneses, or against this particular defense.”
The only explanation which they offer, however, is ithat in their opinion the witnesses intended to testify that they examined the car immediately after the accident. And this explanation would seem io require another which is not offered; i. e., if the witnesses intended to testify “ thát they examined the car,” etc., why, in point of fact, did they testify that they did not examine it, and that they could, therefore, give no information as to its condition immediately after the accident 1
Eeferring to that part of the opinion in which it is said, “A somewhat more doubtful question presents itself in the matter of the failure of the yard master .to inspect the car upon its arrival. It appeared from the evidence that it arrived at Morgan City at about midday on May 26th, and that it had not been inspected up to the time of the accident, say 7 o’clock on the following morning, and it further appeared from the evidence that the regulations of the defendant require that cars shall be inspected upon arrival and departure. We are inclined io think that a regulation of this kind presupposes a necessity for it,” the counsel for the defendant say: “Suclhi a regulation has never been promulgated; it was never spoken of at the .trial; it has never been heard of at Morgan City; and simply has no existence. We are entitled upon so vital a point to a correction.” C. Ilantle, a witness sworn for ¡the defendant, testified that he was the defendant’s inspector at New *376Orleans, and had been so employed for several years. His cross-examination reads, in part, as follows:
“Q. Do you inspect cars that just go from Algiers to New Orleans, across the' river on the ferry ?
“A. We inspect them every -opportunity, we get. * * *
“Q. Is that the rule of the company?
“A. That is my rule.
“Q. Is that the rule of your company? Answer my question.
“A. Yes sir; to inspect them every time they go out or come in.”
It is possible that the witness was referring to a rule which obtains at New Orleans and not elsewhere, but he does not so state, and we can conceive of no reason- why such a rule should not be equally necessary at Morgan City, a point at which the railroad and steamship lines of the defendant meet in the transaction of a business which extends across the continent and far into the interior.
The counsel say: “The only inspectors for whose competency the defendant was responsible were Hayes and Hantle, and, after quoting certain of the testimony given- by those witnesses and by one Garrett, they further say: “We would respectfully suggest that, in its general hostility against the hypothetical testimony of the numerous inspectors, the court allowed itself to believe that the inspectors at Algiers would have let the car pass, if defective, without examining their testimony upon that point. We venture the assertion that this testimony of Hayes, Hantle and Garrett will be quite surprising to the court.” The counsel have ventured an assertion which is totally erroneous. The testimony referred to was carefully considered before the opinion was prepared. It is true that the witnesses mentioned give such testimony as the following — by Hayes:
“Q. Would you consider a car perfectly safe with the hanger pin out?
“A. Well, if it was at a terminal, I would have put it back in place; if not, I would have it go on.”
But they also testify that there is no danger whatever in running a car with the hanger pin out of its sockets; from which, and from the testimony of other inspectors examined on behalf of the defendant, we concluded that they attached no importance to a defect of that kind and would have had it remedied at a terminal, though not elsewhere, only if it happened to be entirely convenient.
*377In this same connection, the brief of defendant’s counsel contains the following:
“There was certainly no lack of frankness in the opinion dealing with the opinions of the inspectors; they were dismissed as of no weight or bearing; but the court did not refrain from parrying their testimony, saying they referred solely to the locking of the trucks on a straight track, while the accident happened on a curve. It is only natural that, having announced that such testimony would not influence the court, there should be inaccuracy in stating what it was, when the court did undertake to deal with it. Hence, error in the statement that this testimony did not take in the ease of locking at the curve is not surprising. It will be found that locking at a curve is pronounced utterly impossible by Pollock * * * Fravor, * * * Gillan, * * * Ernst, * * * Gash, * * * McDonald, * * * Hayes.”
The opinions of the witnesses named were disregarded either because, as appeared from itheir own statements, the witnesses were utterly without the experience or qualifications necessary to entitle their opinions to consideration, or because of the intrinsic weakness of the testimony, or for both causes.
In conclusion, it may be said that this court is restrained by the obligations, which are inseparable from -fee advantages, of its position, from attacking the motives and conduct of counsel engaged in the discharge of the duties which they owe to their respective clients, and it is, no doubt, partly for this reason, as well as because of other and obvious consderations of justice and propriety, that such attacks are rarely levelled at the court, .though, in the discharge of its duties, the court is, necessarily, brought into close relations with the entire bar, and at one time or another must inflict disappointment upon each individual member. The brief under consideration is exceptional in this respect, and contains charges which are equally unfounded and unprovoked, and which cannot be reconciled with the' professions of respect by which they are accompanied.
The application for rehearing is denied.