Hopkins v. New Orleans Railway & Light Co.

DAWKINS, J. Plaintiff seeks damages of the defendant company for personal injuries alleged to have been received through' its fault and negligence while alighting from a street car. She alleges that, when she went to leave the car at her destination, the platform over which she had to pass was crowded with passengers, one of whom had been permitted by the conducter to place a fish basket in her path to the steps, and that as she attempted to step down from the platform to the steps, the rear part of her skirt caught on the basket, causing her to trip and fall to the shell-covered ground spme two or three feet below, with such force that severe injuries were inflicted upon her left side, neck, shoulder, and hip, from the effects of which she developed curvature of the spine, and that her condition is now such that she is totally and permanently disfigured and disabled from earning a living. She claims' the sum of $50,000. Defendant admits that plaintiff was a passenger upon its car, but otherwise denies the allegations of fact. Defendant further avers that plaintiff fell after she had safely alighted from the car, and that the same was due entirely to her own fault and carelessness, and for which it was in no way responsible. There was a trial before a jury, which gave a verdict for defendant and from a judgment pursuant thereto plaintiff brings this appeal. Opinion. The issues of this case turn almost entirely upon questions of fact. The defendant, as a carrier of passengers, undoubtedly owed the plaintiff the duty of transporting and landing her safely at her destination, and this included clear passageway and safe means to alight. It could not permit its platform and exit to be obstructed by objects which were reasonably calculated to trip or cause injury to its passengers; and the burden rests upon the carrier to show, so long as the relation exists, that injuries received by the passenger were not due- to its fault or those over whom it has control. Clerc v. M. L. & T. R. R. & S. S. Co., 107 La. 370, 31 South. 886, 90 Am. St. Rep. 319; Le Blanc v. Sweet, 107 La. 355, 31 South. 766, 90 Am. St. Rep. 303. The plaintiff, sworn as a witness in her own behalf, says that as she passed out of the car onto the platform a man was standing next the outer side of the vestibule near the exit which she had to use with a large wicker fish basket about two feet long in front of him, and leaving a narrow passageway for her to alight; that she avoided contact with the basket as she passed, but as she put her foot down to the step of the car the lower and rear portion of her skirt caught on the basket and caused her to trip and fall to the ground. In support of plaintiff’s version of what took place there appears the following: A colored witness by the name of Armant was summoned in her behalf, but at the timé he was called to testify could not be found, and defendant’s counsel consented that a statement signed by Armant and given plaintiff’s counsel might be filed in evidence, in order to avoid delay in the trial, and this was received in lieu of his testimony. The statement reads: “William Armant, residing at No. 2731 Lep-age street, New Orleans, La., says: That he was a passenger on Spanish Fort train on or about the 13th of September, 1916, at about 8:30 a. m. He was standing on the platform with two or three other men on the trailer behind motorcar, and there was a man standing on the platform on the right-hand side near the step of car with a fishing basket in front of him. I saw a lady come from the inside of car where I was standing to the platform in order to get out. There was not much space for any one to walk on account of myself and other men and man with fishing basket standing in front of him. The lady had just put one foot from the platform to the step of the car when her skirt was caught at the bottom on the fishing basket and she' was thrown to ground on the shell walk below. I got off the [65] car and later joined by Mr. Ouccia and others, and I assisted the lady to her feet with the aid of the conductor. She looked to me like she was knocked out. She said to me that I am hurted, and held her side and started to limp. The train was about to pull out, and I got on the train, and the lady was left on the road. “[Signed,] W. Armant.” And Robert Blatcher (colored), sworn on behalf of defendant, in response to a question by defendant’s counsel, said: “A. Well, when she got on the platform, a basket was setting on the platform caught her dress. It was loose. It got loose before she hit the step, and when she hit the step — before she hit the step, the basket come aloose from her dress. The car was stopped still; then she got down from the step and got safely down on the ground, and the car started off, and the car was about five feet when she fell, and the conductor, he stopped the car all of a sudden and got down and went and picked her up and helped her to her feet, and he turned her aloose, and she walked by herself.” And again on cross-examination bis testimony was in part as follows: “Q. Now, where was that basket, standing alongside of you? “A. On that side of me; yes, sir (indicating)- “Q. What side? “A. The opposite side of me, on the left side, the way I was standing. “Q. In other words; it was nearer the step' than you were? “A. Well, yes, sir; it was. “Q. You saw the lady’s dress get caught on the basket, you said. “A. Yes, sir. “Q. You don’t know what part of the dress got caught, do you? “A. No, sir; it looks like the end of it, down at the tail. “Q. Who did that basket belong to? “A. Well, I couldn’t say exactly who it belonged to, but the gentleman what was right opposite me, the colored fellow, he caught hold of his basket and pulled it back after it was loose from her dress. “Q. You saw it get caught on the dress, all right, didn’t you? “A. Yes, sir. “Q. Now, wasn’t that basket on the right-hand side of the lady as she was getting off? “A. On the right-hand side? “Q. Yes? “A. No, sir. “Q. You are sure about that? “A. It was on the left-hand side, I am sure.” It is also conceded by all witnesses, in fact admitted in the answer, that plaintiff did fall; the point of difference being as to whether she fell while alighting, and as the result of her skirt having caught on the basket, or after she had reached the ground safely and at a time when it was impossible for the basket or anything else on the platform to have contributed to the fall. On behalf of defendant a fish basket was produced in court by the colored witness to whom it belonged and who swore that it was the same one which he had on the car at the time of the accident. It measured 17% inches in length by 12% inches in width over the top, was 8% inches high, and 14x9 inches at the bottom. The lid and upper portion were made of wicker, and the bottom was composed of small wire netting. This colored witness said that the basket was placed close up against the outer wall of the vestibule on the platform, near the opening or gate leading from the trailer on which plaintiff was riding to the motorcar just ahead (the train being composed of a motorcar and one trailer); that it, the basket, was on the same side of the gate as the step from which plaintiff alighted, but that her skirt did not catch the basket, and she fell after safely reaching the ground. He also denies having replaced the basket after it was moved by plaintiff’s skirt as testified to by the witness Blatcher and quoted above. Both this witness and Blatcher, according to the testimony, were standing on the platform of the trailer, and in a position to see what took place. The conductor of defendant’s train had, just before the stop was made for plaintiff to alight, crossed over from the platform of the trailer, from which plaintiff descended, [67] to that of the motorcar ahead, and says that he saw her safely reach the ground, and thát he gave the signal for the car to proceed, and after plaintiff had moved a few feet away from the car she stumbled and fell; that he signaled the motorman to stop, got down, and, with the assistance of another, helped her to her feet. 1-Ie further denies that her skirt caught on the basket, but we are very doubtful, to say the least, that if the basket was on the side of the platform where all of the witnesses place it, with varying degrees of proximity to the step, it was possible for him to have seen it or what happened with respect to plaintiff’s skirt, for the wall of the vestibule, extending up about waist high, was between him and the basket, and we believe he would have had to be either right up against this wall, or to have craned over in order to do so. The witness Blatcher, heretofore referred to and quoted from, says, as the quotation shows, that he was also on the platform of the trailer in a position to see everything that happened, and that the plaintiff’s skirt did not adhere to the basket or cause her.to fall, but that she cleared the car and fell under the circumstances detailed by defendant’s other -witnesses. All of the -witnesses of defendant heretofore mentioned say they have no recollection of having seen the witness Armant (who had disappeared when called as a witness) on the car. A white witness for defendant named Robert Burr says that he was in charge of a switch at or near the point where the car had stopped, and at the time was standing near the door of the “operating room” at a point about four or five feet from the center of the motor, on the same side that plaintiff alighted from, looking in that direction; that she landed safely, and fell after proceeding a short distance from the car. The motorman, Seruntine, also sworn as a witness, says that his attention was first attracted to the scene by the fact that the conductor gave him a signal of two bells to go ahead, and immediately one to stop; that he looked back through the motorcar and out the side window's and saw the conductor and others helping the lady to her feet. All of the -witnesses who were interrogated on the point say that the signal to go forward was given, and that it was promptly followed by one to again stop. The accident happened about 8 a. m. Plaintiff went on to her destination, came back to Canal street on the same train on its return trip from Spanish Fort, and called upon the assistant claim agent of the defendant company at about 10 o’clock a. m. of the same day, and as to what passed at this interview the agent says: “Q. Now, what did she say to you when she called? “A. And she stated to me that on that morning she had boarded a Spanish Fort train, 509, which had left Canal and Rampart streets about 8 o’clock; that, on the train reaching the West End road and Adams avenue, the train had stopped for her to get off; in alighting from the train, she had fallen. She says she didn’t know what caused her to fall. She said some one on the train said it was a fisherman’s basket. She also told me that in alighting she had held on to a fishing pole that was on, the platform, and on reaching the step she had let go that fishing pole and she was going to the ground then, and it was then she had fallen; that in the fall she had scratched the palm of her right hand and she had bruised her right elbow and she had soiled a dress. She had on a tan dress which is called a mercerized poplin.” The plaintiff denies that she said she did not know what caused her to fall, but claims that she detailed then to the agent the circumstances substantially the same as on the trial. From the character of her replies to questions under examination as a witness, and from difficulties which she had with physicians, etc., she appears to be of a somewhat petulant nature, and for this reason, [69] perhaps, did not impress the jury very forcefully with her testimony, although we are impressed that her intentions were good. Then, again, the unexplained disappearance of her main supporting witness also probably weakened her case before the jury. There is nothing in the record to show that the condition of the ground on which she landed was such as was calculated to cause her to fall; while the reason and circumstances which she details would appear, if true, to lead naturally to the result which she claims. However, it does not seem to us altogether reasonable that the conductor would have given the signal to proceed, if she had been thrown to the ground from the steps as she says, for in that event a situation would have been produced requiring his immediate attention and assistance to the lady, if he was watching her movements, as we, in the absence of proof to the contrary, assume him to have been; and it is further hard for us to conceive, if he did see her fall as stated, that he deliberately signaled to go forward and then immediately followed with one to stop. The condition of our mind, after carefully analyzing and considering all the evidence, is such that we cannot say, without some knowledge of the credibility of the witnesses, just what the true facts were, and we think that they might easily have been resolved one way or the other. In such circumstances we are constrained to accept and rely upon the judgment of the jury, who saw and heard the witnesses testify, and would not feel justified in reversing them on such a close question of fact. As pointed out in the beginning, the issue of fact thus found adversely to plaintiff is determinative of the ease. For the reasons assigned, the judgment appealed from is afiirmed at the cost of the appellant.