dissenting. I - can see in this case nothing to distinguish it from the innumerable others which have established firmly the doctrine that a pedestrian who is struck by a train is guilty of such negligence as to bar recovery, if, by the due use of either the sense of sight or the sense of hearing, the approach of the train could have been discovered.
*592In such cases no purpose can be served by investigating and discussing the negligence vel non of the operatives of the train. Failure of the pedestrian to use his senses of sight and hearing are insurmountable obstacles in the path of plaintiff, without any reference to the negligence of the train crew.
“No failure on the part of the railroad company to do its duty will excuse anyone from using the senses of sight and hearing, upon approaching a railway crossing, and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.”
Tucker vs. I. C. R. R. Co., 141 La. 1102, 76 So. 213.
Brown vs. R. R. Co., 42 La. Ann. 355, 7 So. 684, 21 Am. St. Rep. 374.
Tatum vs. Rock Island R. Co., 124 La. 927, 50 So. 796.
Herlisch vs. R. R. Co., 44 La. Ann. 280, 10 So. 628.
Provost vs. Y. & M. V. R. Co., 52 La. An. 1894, 28 So. 305.
“The mere omission of train signals will not subject the railroad company to damages if the traveller struck by the locomotive attempts to cross the track without observing usual precautions to avoid such accidents.”
Brown vs. T. & P. Ry. Co. (supra).
Britton & Koontz vs. Harvey, 47 La. Ann. 259, 16 So. 747.
Loften vs. L. R. & N. Ry. Co., 135 La. 33, 64 So. 972.
“It is the duty of one crossing over railroad tracks in a city, to look and to listen so as to avoid accidents; and, if he fails to look and listen, and to see and hear danger signals, he is negligent and he cannot recover damages for injuries suffered by him.”
In the above case the plaintiff was crossing the intersection of Toulouse Street and Claiborne Avenue and was run into and knocked down by a freight car, operated over the tracks in Toulouse Street, driven backwards by a steam locomotive.
I do not find it necessary to disagree with my associates as to the facts of this case, although if it were necessary to a decision to disagree on the facts, I would respectfully direct attention to the unanimous jury verdict in favor of defendant, and would suggest that the rarity of such a verdict in a damage suit against a railroad is a stronger argument in favor of their correctness than could be couched in any words of mine.
Assuming that the crew was not looking out for pedestrians; that no whistle was blown and no bell was rung and that the crossing bell was not ringing (though, in view of the verdict, all these are rather violent assumptions), a recovery is not justified under the jurisprudence of this State. The view of Mrs. Seelhorst was unobstructed, the day was clear and deceased, through her twenty-nine years’ residence on Elysian Fields Avenue in the immediate vicinity of the crossing in question, was thoroughly familiar with the locality and with the fact that trains were constantly run on all the tracks over which her path crossed.
The law applicable to such a situation is well stated in Nolan vs. Illinois Central R. R. Co., 145 La. 483, 82 So. 590:
“A person about to walk upon a railroad track must look and listen for approaching trains; and where he fails to do so, and walks upon the track in such close proximity to an approaching train as to be struck by it before it can be stopped, he is guilty of such negligence as will preclude a recovery in damages for his death; and the fact that the train was negligently *593operated will not render the company liable. White vs. Railroad Co., 114 La. 825, 38 So. 574; Riley ys. Shreveport Traction Co., 114 La. 135, 38 So. 83; Lewis vs. Railroad Co., 114 La. 161, 38 So. 92, 108 Am. St. Rep. 335; Jones vs. Railroad Co., 121 La. 39, 46 So. 61; May vs. Railroad Co., 123 La. 647, 49 So. 272; Dubose vs. Railway Light Co., 123 La. 1029, 49 So. 696; Tatum vs. Rock Island Railroad Co., 124 La. 921, 50 So. 796; Harrison vs. Railroad Co., 132 La. 767, 61 So. 784; Elliott (2d Ed.) p. 1171.”
See, also, Gibbens vs. N. O. Terminal Co., et al., 159 La. 347, 105 So. 367; Tucker vs. Ill. Central Railroad Co., supra, and the following decisions of the Courts of Appeal:
Morin, etc., vs. Central R. R. Co., 1 La. App. 72.
Guillot vs. La. Ry. & Nav. Co., 3 La. App. 541.
Simkins et al. vs. La. Ry. & Nav. Co., 5 La. App. 438.
Sullivan vs. Tremont & Gulf Ry. Co., 4 La. App. 358.
Trainmen have a right to believe that a person approaching a railroad track will exercise their sense of sight and hearing, so as to perceive an approaching train in time to avoid an accident. Schulte vs. N. O. City & Lake Rd., 44 La. Ann. 511, 10 So. 811; Cook vs. L. & N. W. R. Co., 130 La. 918, 58 So. 767; Nelson vs. T. & P. Ry. Co., 140 La. 676, 73 So. 769.
The case of Betz & Son vs. Ill. Cent. R. R. Co., 161 La. 931, 109 So. 766, can, in my judgment, afford no comfort to plaintiffs, merely by reason of the fact that there as here, there were several tracks to be crossed. In the first place, in the Betz case the object struck was a vehicle, which, of course, is not so easily nor instantaneously controlled as is a pedestrian. In the second place the vehicle was crossing the tracks not at right angles as was Mrs. S'eelhorst, but at an angle of about forty-five degrees, so that the train was approaching to some extent from the rear o.f the vehicle. But, most important of all, in the Betz case the court found that it should have been apparent to the engineer that the driver of the vehicle was oblivious of the danger approaching partially from the rear, and that therefore, had the engineer been looking, he would have had an opportunity to avoid the accident, even after it was no longer possible for the driver of the vehicle to do so. In other words, the engineer had the last clear chance.
The doctrine of the last clear chance, however, can have no application to a case of a pedestrian,, in the full possession of his faculties, because his negligence in stepping upon the track and in remaining there continues up to the very moment of the accident and prevents the application of the doctrine of the last clear chance.
Harrison vs. Railroad Co., supra.
Castile vs. O’Keefe, 138 La. 479, 70 So. 481.
Morin vs. I. C. R. R. Co., supra.
Leopold vs. T. & P. Ry. Co., 144 La. 1000, 81 So. 602.
Tucker vs. I. C. R. R. Co., supra.
Hammers vs. C. S. N. O. & P. R. Co., 128 La. 648, 55 So. 4, 34 L.R.A. (N.S.) 685.
Nor can I agree that Cherry vs. La. & Ark. Ry. Co., 121 La. 471, 46 So. 596, 17 L.R.A. (N.S.) 505, 126 Am. St. Rep. 323, is in point here. There is not the slightest doubt that the crossing here was in no *594way obstructed and that any care on tbe part of Mrs. Seelborst would have brought to her notice the approaching train. In this regard the facts are entirely different from those in the Cherry case, in which the court said that “the crossing was one of the most frequented of the town and was obstructed by cars standing upon and near it.” It appears that the engineer in the Cherry case admitted the charges of negligence, but sought to excuse himself by stating that “he did pot know the car stood so near the crossing, or, in other words, that the crossing was so obstructed or so dangerous.”
Furthermore, in the Cherry case the persons killed were riding in a vehicle, and were not, as was Mrs. Seelhorst, walking.
In order to avoid the impression which may be erroneously obtained from a reading of the majority opinion, let me state that the train involved was not being driven backwards. That is to say, the cars were not ahead of the locomotive. The only charge of negligence in this regard is that the locomotive was operating with the tender end first. It has been many times held that such movement does not constitute negligence. Ladner vs. N. O. Terminal Co., 139 La. 262, 71 So. 503.
I am unable to persuade myself that the opinion of my associates, for whose views I have the highest regard, is in accord with the jurisprudence of this State. On the contrary, in my opinion, it does violence to. established doctrines and annihilates the defense of contributory negligence in railroad crossing cases.
I therefore respectfully dissent.