Clogher v. New Orleans Ry. & Light Co.

LECHE, J. On July 9, 1915, shortly before the noon hour, plaintiff was a passenger on one of defendant's electric railway cars, going out on Tulane avenue. After the car had crossed Miro street, and being then within one block of the intersection of Tonti street, where that street runs across Tulane avenue, plaintiff, gave the customary signal, indicating that she wished to alight at said corner, the nearest stopping place to her home on Tonti street. Instead of stopping the car in such manner as to bring the reaij step on a line with the sidewalk on the further side of Tonti street, according to the well-established custom of defendant in the operation of its cars, the motorman proceeded some 20 feet further, so that the rear step of the car, off which plaintiff had to alight, instead of being at the usual place where pedestrians cross the street, was some 20 feet further, over the neutral ground, where the car tracks are laid on Tulane avenue. The plaintiff, a lady 44 years of age, and weighing 175 pounds, with a small bundle in her hands, descended to the ground in the usual manner, when she missed her footing, fell, and suffered bodily injury. These are the facts, substantially, as alleged, in plaintiff’s petition, as borne out by the testimony in the record and not controverted in this court. The record further shows that at the street crossing, where the car should have been stopped, the car step would have been 14% inches from the ground, which is level at that point; that the neutral ground, on which the tracks are laid rises gradually as it extends towards the center of the block, and that where the car actually was stopped, the car step was 11% inches above the neutral ground; that there is a ledge of neutral ground extending approximately 7 inches beyond a line perpendicular to the outer edge of the step of the car; that this ledge of ground is supported by a rock or concrete curb 4% inches higher than the pavement, so that the paved part of the street used for traffic was 16. inches lower than the car step, at the place where plaintiff alighted. To say exact [87] ly how plaintiff came to her fall is more a matter of surmise than of direct proof, but the only reasonable deduction to be drawn from all the testimony in the case is that she rested the foot upon which she alighted to the ground on the edge of the curbing; the berm or ledge of the neutral ground being too narrow to place her foot inside of the curb and too wide to permit her to reach the pavement beyond the curb; that in turning she slipped and twisted her ankle, causing her to lose her balance, thereby bringing her body in violent contact with the pavement below. This conformation of the surface of the street made it dangerous for a lady of the age .and weight of plaintiff to alight at this particular place. Defendant does not plead contributory negligence, a defense which should be specially pleaded (Buechner v. City of New Orleans, 112 La. 599, 36 South. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, affirmed in Robertson v. Jennings, 128 La. 804, 55 South. 375), but it alleges that the car was stopped at the usual place, at the street crossing, and that plaintiff was hurt by her own awkwardness. This defense is not supported by the evidence, was not urged in argument, and was virtually abandoned on appeal. [1] The law as recognized in decisions of this court is that a carrier of passengers should exercise the strictest diligence in receiving a passenger, conveying him to his destination and setting him down'as safely as the means of the conveyance employed and the circumstances of the case will permit. Le Blanc v. Sweet, 107 La. 355, 55 South. 672; Guidry v. M. L. & T. R. & S. S. Co., 140 La. 1008, 74 South. 534, L. R. A. 1917D, 962. Our conclusion then is that plaintiff was deposited at an unusual and more or less dangerous place, and that defendant failed to carry out its duty of safely setting plaintiff down from its car. The quantum of damages is not contested in this court. The judgment appealed from is affirmed.