Schwartz v. New Orleans & C. R.

BLANCHARD, J. The plaintiff appeals from a judgment rejecting his demand for damages for personal injuries sustained in consequence of becoming pinioned or squeezed between two of the cars of defendant company at the intersection of Baronne and •Canal Streets in the City of New Orleans. Negligence is charged against defendant for having so construdted its tracks that there is not sufficient space or room at that point between passing cars, .when swinging in or ■out of the curves in the tracks, for a man to stand in safety, or to extricate himself if caught between the cars. It is averred that this was known to the company, but not within the knowledge of the plaintiff; that in standing in the space between the tracks to allow one car to pass another he had the legal right to presume the company had provided sufficient room to ensure his safety — the place being a public crossing; and that since the accident was one reasonably to be anticipated by the defendant, its failure to provide against the ■same constitutes gross negligence. A supplemental petition, charges the motorneer operating one of the ears with negligence as well as want of skill; that he should not have attempted to run his car past where plaintiff was, seeing, as he must have seen, the situation in which plaintiff was placed; that he fthe motorman) knew, or should have known, that the body of the car engaging the curve at that point would swing towards the left, where plaintiff was ■standing with his back against the other ■car and unable to recede. The answer is a general denial, with the plea that if the plaintiff was injured as claimed by bim it was through his own fault and want of care. The drawing herewith presented accurately depicts the location of the street railway tracks at the point of intersection between Canal and Baronne streets, and, also, with sufficient accuracy the location of the ears at the time of the accident. Looking at the drawing or plat from the southward, the car on the left had just turned into Baronne street from Canal and was either stationary at the time of the accident or was moving up Baronne (which is towards the south) very slowly. The car on the right had just come down Baronne and had turned into the curve on its way to the neutral ground on Canal street, thence towards the river. It, too, was running very slowly. It will be observed the car coming into Baronne had emerged from the curve and was on the straight track, while that going into Canal had passed out of the straight track on which it had been running and had entered the curve. The tracks on Baronne street are parallel and four feet apart, but as they pass out of the foot of Baronne street into Canal street the curvature of the track on the right is sharper and shorter, so that it falls [538] away from the other track, and the two do not again become parallel until the neutral ground of Canal street is reached, where one of the tracks extends along one side of it and the other along the other side of it. The parallel there is a wide one. The track on the right begins its curve in Baronne street just before passing out into Canal street, while the one on the left passes into Canal street before beginning to curve. ¡ The result of this is that whereas the ,- tracks are four feet apart where the curva- ; ture of the one on the right begins, the space j rapidly widens as it (the track on the right) turns away to the near side of the neutral ground on Canal street, leaving the track on the left to describe a more gradual curvature to the far side of the neutral ground. The track on the right is the one that cars coming down Baronne street and which go along Canal street towards the river use, while the one on the left is used by' cars coming back from the river along Canal street and thence up Baronne street. In the forenoon of the day of the accident the plaintiff was walking along the banquette of Canal street going in the direction of the river. Reaching Baronne street at its intersection with Canal, he observed three cars coming along the curve of the. track nearest to him on their way up Baronne street. They were near together and he waited for two of them to pass, and then, stepped across the track immediately in front of the third car. He was walking fast; the car moving slowly. The motorneer of the ear, seeing the man in such dangerous proximity to the front of his car and it moving, applied his brakes and brought his car to a sudden stop, at the same time exclaiming to the man: — -“Look out; do you want to be killed.” Just at that moment a car was coming down on the other track (which is the track on the right in the plat). Plaintiff contends this car had not yet reached the point on its track opposite where he stood, but was some eight or ten feet up the track to his right, and that there was nothing to prevent the motorneer of the car from seeing him had he been looking ahead of his car. Defendant contends that as plaintiff crossed the first track ahead of the car whose motorneer called to him to look out, the car on the second track was opposite him, its forward dash board having already passed the point where plaintiff emerged into the neutral ground between the tracks, and that in consequence the motorneer of that car did not see him at all until after the accident. The preponderance of testimony seems to-sustain defendant’s version. Having passed the first track and encountering the car on the second track, plaintiff stood still on the neutral ground. .He was at the usual crossing, at a point on a prolongation of the center line of the banquette. Had the tracks been parallel there, he would have been in no danger. He might have found himself in “close quarters,” but still the cars would have passed each other without harming him. But the curvature of the track to the right (the one he was then seeking to cross) had already begun, and the car upon it, entering the curve, swung, as is usual, on its trucks, the rear end thereof extending over into the space between the tracks. At that moment the plaintiff stood with his back to the car on the other track, and, so standing, was caught between the cars. With the rear end of the passing car thus-extending over by reason of the car being-on the curve of the track, there was not left space enough for plaintiff’s body between the cars, and he was squeezed or mashed, and quite seriously injured. Ruling —Plaintiff’s conduct was not that of a prudent, cautious man. He was young, active, strong — given to athletics. He did not doubt his ability to successfully pass in front of the car going up Baronne street, and he did so, though in the act he caused a premature and sudden stoppage of the car. It was due to stop above the crossing, some twenty feet, perhaps, beyond where plaintiff forced it to stop, which is immediately at and on the crossing. The proper thing for him to have done was to let the car pass before attempting-to cross. So close was he to the car in passing in front of it that the motorneer, by leaning- over, could have taken his hat from his head. Such is the testimony. Conceding, as contended for by plaintiff, that he had the right to be on the particular spot, viz: — upon the neutral ground between [540] the tracks at the street crossing for pedestrians, it was imprudence to occupy the position just at the moment he did considering the environment then existing. He got himself imprudently into the situation in the sense that he alone was responsible for it, Having put himself there, it was incumbent upon him to extricate himself from it so as to avoid injury if there was a way reasonably and practically open to him to do so. That there was a way, seems clear. The outgoing car, turning on the curve, was, as seen, moving slowly. It was going no faster than a man could walk at a moderate gait. All the plaintiff had to do to escape being pinioned between the cars was, as he realized or should have realized the danger, to walk down the side of the stationary car, in front of which he had just passed, towards Oanal street. This would have, within a few feet, brought him to a space between the cars wide enough to ensure absolute safety, for, as seen on the plat, the track on the right, in engaging the curve as it debouches into Oanal street, rapidly falls away from the track on the left. A man who was agile enough to sprint it across the first track so close to the car moving upon it that the motorneer could touch him, was agile enough to sprint it down the side of the car to escape the swinging end of the car on the other track. We pass no opinion upon the question raised by plaintiff that it was negligence in the car company to operate cars so large upon its tracks that at curves there is not sufficient clearance space to enable a man to stand in safety between the tracks. It is not necessary to pass upon it. Even conceding the contention of the plaintiff in this regard the case is against him because of his own contributory negligence; his failure to use the means of escape at hand to avoid injury. With regard to the contention that the car tracks are placed too near together, a sufficient answer is they are placed where the City of New Orleans, in granting or selling the franchise, required them to be placed. We do not find it is established by the testimony that the motorneer of either ear was guilty of any negligence. But even if one or the other was, or both were, plaintiff is debarred from recovery by the facts and circumstances above detailed constituting negligence on his own part, which is held to have been the proximate cause of the injury he suffered. The judgment appealed from is found correct and the same is affirmed. PEOVOSTY, J., dissents.