Opinion
No. 6723.
June 30, 1944. Rehearing Denied July 17, 1944.
Appeal from Tenth Judicial District Court, Parish of Natchitoches; L.P. Stephens, Judge.
Action by Sylvan and Harry Friedman against the Texas Pacific Railway Company to recover for the value of a bull which was struck and killed by defendant's locomotive. Judgment for defendant, and plaintiffs appeal.
Affirmed.
John G. Gibbs, of Natchitoches, for appellants.
Frank H. Peterman, of Alexandria, for appellee.
The lower Court in a written opinion has set out the issues in this case and has correctly stated the proven facts and determined the case in accordance with the law and jurisprudence of this State. Its opinion is as follows:
"This is a suit for damages by plaintiff against defendant in the sum of $300.00, the value of a bull killed by one of defendant's trains in Natchitoches Parish, Louisiana, near the village of Natchez, on March 6, 1942.
"The evidence is brief and uncontradicted. Plaintiff proved that the bull was worth $300.00; that it was killed by defendant's train on March 6, 1942, and that the track at the point where the bull was killed was not fenced. The engineer swore that the condition of his equipment on the night the bull was killed was good; that he was driving at the rate of 65 miles per hour; that he first saw the animal 350 or 400 feet away coming out from behind the depot and west of the depot, and that it ran on the track and was struck; that he applied the brake, blew the whistle and rang the bell and that there was nothing he could do to avoid striking the animal.
"This evidence was corroborated by the fireman and was not contradicted. Under the law the railroad, when it kills an animal and no fence is maintained, has the burden of proving that it is not negligent. Under the evidence in this case, the Court believes it has sustained that burden.
"Therefore, let there be judgment dismissing plaintiff's suit at his cost."
Since all the authorities of the Supreme Court and other appellate courts of this State sustain the finding of the lower Court, it would only be surplusage to cite them.
The judgment is correct and is affirmed with costs.