On Rehearing.
MONROE, J.The earnest and able argument of plaintiff’s counsel on rehearing has failed to convince the court that there was any error in the conclusion heretofore reached in this case that defendant should not be held liable in damages for the injury here complained of. The place where the accident occurred was not a public crossing, and was not used as such; it was not a place where children or other people assembled, or had any reason to assemble; and the circumstances were such that the switch foreman, who directed the movements of the cars by which the injury was inflicted, had no reason to anticipate that the person injured would place herself where she did; such action having been wholly unnecessary and unusual and highly dangerous. The locus in quo had been a public road, but, as it lies between the main plant of the oil company and its lard plant, the police jury, in consideration of the opening of a new public road by the oil company upon the other side of the lard plant, had authorized the old road to be covered with railroad tracks, for the convenient handling of the product of those plants. Whether it was legally competent for the police jury to grant such authority is immaterial for the purposes of this case. The fact is when the accident occurred there were five tracks between the lard plant and the main plant, and what with the inequalities in the surface of the ground between the tracks and the rails rising above the surface of the tracks themselves the place was practically unfit for any other use than the handling of cars, and we fail to find in the evidence that it was used for any oth*427er purpose. The employés in the lard plant and those who brought their meals had no occasion to cross the tracks, and did not do so. Chauncy Trauth, a witness for plaintiff, on his direct examination, testified as follows:
“Q. Was that incline used frequently by people going in there? A. Yes, sir; it was always used. [Referring to the incline running down from the platform which extended along the side of the lard plant and between it and the spur track where the accident occurred.] Q. And the people going up this, incline and going into the lard plant, were they in the habit of crossing this spur track? A. No, sir; they came straight up. Q. Did they some time cross this track? A. Not that I know of.”
Leah Fink, a witness for plaintiff, who had carried her brother’s dinner to the plant, as Hilda Boyle had carried her sister’s, had overtaken Hilda on the way, and accompanied her, was standing with her upon the incline a moment before she went upon the track, and witnessed the accident, was interrogated by plaintiff’s counsel, and answered as follows:
“Q. Was it usual for you and the other people carrying meals there to wait on this incline and platform until the parties had completed their dinner? A. Yes, sir. Q. It was usual for you to do that? A. Yes, sir. Q. I wish you would state whether or not it was usual to cross this track near this bulkhead, going on and off this incline ? A. No, sir; it wasn’t usual. Q. Well, did you ever cross right there by the bulkhead? A. I never did. Q. Did you ever see anybody else cross there? A. The workmen. Q. You have seen workmen .cross there? A. Yes, sir.”
On cross-examination:
“Q. Where did you say that you met Hilda Boyle? A. On the road. Q. She was ahead of you? A. She was ahead of me. Q. And you caught up with her? A. Yes, sir. Q. Which way did you come? A. Up the front way. Q. What do you mean by that? A. On the road. Q. You didn’t go up the levee at all? A. No, sir. Q. Did you ever cross this track in order to get into the lard plant? A. We passed along the track. Q. Did you cross it? A. No, sir. Q. Did she cross it to go in where her sister was? A. No, sir. Q. Didn’t you have to cross, or didn’t you cross, all of these tracks, and didn’t she cross all of these tracks to get in there? -A. No, sir. Q. You are positive of that? A. Yes, sir.”
Hilda Boyle had testified that she had to cross the tracks, and did cross them. Harry Le Blanc (an employé, at the time that he testified, of the Union Oil Company, but, at the time of the accident, working in the lard plant of the Southern Oil Company), called as a witness for defendant, testified as follows on cross-examination, to wit:
“Q. Do you know whether it was customary for the employés of that lard plant to cross this switch track in going into the lard plant? A. I don’t think. * * * Q. Didn’t they cross in front of this bulkhead usually in going into this lard plant? A. No, sir. Q. Did you ever see them do it? A. No, sir.”
Mr. Snypp, superintendent of the Southern Oil Company, called as a witness for defendant, gave the following testimony:
“Q. If a person were going from Gretna to the lard plant, to take dinner to one of the inmates there, would they have to cross any track in your yard, in order to go up that incline, to go into the lard plant? A. No, sir.”
It is quite likely, as Leah Fink says, that those who brought dinners to the employés of the lard plant waited, in mild weather, on the incline and platform for the vessels that they were to take home with them; but there is not a syllable of testimony to the effect that any of them ever assembled on the tracks, or that any one person ever stood or waited on the tracks, for a moment. Under such circumstances, defendants’ switch foreman, who had caused three cars to be left on the spur track, could have had no reason for anticipating that within the five minutes that elapsed while he was bringing in the other two cars the little girl who was injured would interpose her person in the two or three foot space between the bulkhead and the car nearest to it, since for any one to do so was wholly unnecessary and unusual and, as the event proved, highly dangerous.
The judgment heretofore rendered is therefore reinstated and made the final judgment of the court.