Conolly v. Crescent City Railroad

The opinion of the Court was delivered by Fenner, J. On a Sixnday in December, at about two o’clock of the afternoon, Patrick Conolly, a sober", respectable citizen, of 55 years, en [60] tercel a car of tlie defendant’s street railway, and paid his fare as a passenger. Nothing in tlie evidence indicates that he exhibited any sign of intoxication or was guilty of the slightest impropriety of behavior, on entering the car, or until he had ridden a, considerable number of squares (from Terpsichore to Third street), and the testimony is conclusive that, in point of fact, he was perfectly sober. After passing Third street, he was suddenly stricken with apoplexy, accompanied, as the medical experts prove to be common, with severe vomiting. The car had numerous passengers to whom thin vomiting undoubtedly occasioned serious discomfort- and inconvenience. Some of them left the car on account of it, while others of those remaining suggested that he should leave the car and took -stexis to call the attention of the driver to the necessity of removing him. The sick man had sufficient consciousness and sense of propriety left to observe this, and he said, “ I will get out myself,” but on rising to do so, he fell x>rone upon the floor, where he lay absolutely helpless. As far as apxiears, he never spoke again, and was incaxiable of taking any care of himself. The driver then came, back and, with the assistance of a passenger, bodily lifted him, carried him out of the car, and laid him down' in the street between the car track and the gutter, between two and three feet from the former. Tin-evidence is conclusive that, almost immediately afterward, and while the car was moving of, he shifted his position, by some convulsive-movement, so that his legs were across the rail of the. track. 'Phis is X>roven by passengers who saw him in this position as the car moved away, and by others who came to him immediately afterwards. The driver, however, after thus summarily disposing of his stricken pmssen•ger, x>aid no further attention whatever to the matter. He took no stops to secure for him any relief or assistance. It is doubtful if he made any rex>ort of the incident to his employers, and if he did it was not acted up>on. He simpdy went his way in a serene confidence that, as he e-x-pm-Mses it, he had “ done his duty,” and although he passed the promt several times while his ejected prassenger was still lying helpfless on the adjoining sidewalk, he states that he does not recollect whether he saw him or not. A female passenger, observing his perilous prosition across the track, went to his assistance and, with the aid of a gentleman, removed and laid him on the sidewalk. Here he remained for more than four hours, on a. bleak, drizzling December day, in the open street, without aid or relief, in his terrible condition. At last tlie pmlio.o authorities came to his assistance ¡md he was conveyed to the Charity Hosputal where he died on the following- morning. ft should need no parade of learned authorities to maintain the propo [61] sition that a connuon carrier cannot treat, an unfortunate passenger stricken with apoplexy while under its charge, in the manner above indicated, without a breach of the plainest obligations of its contract, of carriage. If there were any precedent, to the contrary, humanity would revolt at it, and it would be one “more honored in the breach than in the observance.” But. there is uo such precedent; and those cited by defendant’s counsel are far from sustaining the position. No doubt a carrier owes obligations to its well passengers as well as to sick passengers, and is bound to protect the rights of both. When the condition of a sick passenger is such that his continued carriage is inconsistent with the safety or even the reasonable comfort of his fellow-passengers, regard for the rights of the latter will authorize the carrier to exclude him from the conveyance. Thus if he had cholera, or smallpox, or (Milium trcmenn, or even if, as in this case, he were subject, from any cause, to continuous vomiting, utterly inconsistent with the comfort of other passengers in a street ear, the right of the carrier, in protection of the latter’s privileges, to exclude him, would undoubtedly arise. Such is the reasonable doctrine of the cases cited. Lemont vs. R. R., 47 Ann. Rep. 238; Vinton vs. R. R., 11 Allen (Mass.) 304; Murphy vs. R. R., 118 Mass. 228; R. R. vs. Weber, 33 Kansas 543; R. R. vs. Statham, 42 Miss. 607. But none of these cases hold that this right of exclusion can be exercised arbitrarily and inhumanely, or without due care and provision for the safety and well-being of the ejected i>assenger. On the contrary, the duty of exercising such care and provision is universally recognized. Thus, in the. Kansas case, above quoted, the Court said : “Under these facts, the propriety of.his removal cannot be doubted. * * The duty of the railroad company, with respect to Weber, did not end with his removal from the train. He was unconscious and unable to take care of himself. They could not. leave him on the, platform, helpless, exposed and without care and attention. It was its duty to have exercised reasonable care and diligence to make temporary provision for his protection and comfort.” This was a case of intoxication; And in the case most relied on, Lemont vs. R. R., the Supreme Court of the District of Columbia, after recognizing the. right of removal, is 'careful to add: “Of course, for an abuse of this discretion, or for any oppression in its exercise, the company would be responsible.” In another ease the. Court, while recognizing the right of ejection, said: “ It does not follow that the right may be exercised in such manner, under such circumstances, or against a person in such physical or mental condition as that death or serious bodily harm will necessarily [62] or even probably result from putting him off.” R. R. Co. vs. Sullivan (Ky.) 16 Am. and Eng. R. R. cases, 390, See also Hall vs. R. R. Co. (So. Ca.) S. E. Rep., March, 1888; Lovett vs. R. R., 9 Allen (Mass.) 557; Higgins vs. R. R., 46 N. Y. 23. We conclude, therefore, that the conduct of the defendant’s agent, in turning ont this helpless and.speechless sick passenger into the roadway of the street, and there leaving him, on an inclement day, without the slightest attempt, at the moment or afterward, to have him taken care of, was a gross violation of its duty. The company attempts to shield its agent on two special grounds, viz : 1. That he supposed, and appearances justify him in supposing that Conolly was drunk. Even if his illness had been the result of drinking, yet he had ridden a considerable distance without misbehavior, and was never guilty of any, except in the sudden access of vomiting bringing about a condition of complete helplessness. In such case, the duty of the company to see to his being taken care of, after ejection, would have arisen, and would have been abridged by no fault on his part, because, until his sickness, he had been in lit condition to take passage and had committed no voluntary misbehavior. Moreover, it is admitted that (Ionoily was not under the influence of liquor, and the assumption that he was so was a. rash one, under the circumstances, and the company, not Conolly, must suffer for the mistake. 2. It is claimed that Conolly had signified his desire, and had attempted, to get out, and that the driver only helped him to accomplish his purpose. That he wished to get out while he thought he was able to do so and to take care of himself, may be true; but to suppose that he desired to be put ont and left in the street after he had fallen down in an utterly helpless condition, is too preposterous to merit consideration. We are not here concerned with the measure of the duty which a street company, operated under the conditions prevailing in the City of Ne\y Orleans, owes to a passenger in such unhappy case, nor with the kind of degree or care, which it is bound to take for his protection. .If we were, we should give due consideration to such conditions and would be careful to adjust the duty according to praticability. But the defense here rests upon the entire absence of any effort whatever to perform the, duty and a denial that any duty arose in the premises. Such a defense can receive no sanction at our hands. Nothing remains for determination but the measure of damages. The cause of action arose, prior to the recent amendment of Article 2315, Rev. C. 0., and the damages recoverable are those, only which wore suffered by Couollv. [63] Tlie case was tried twice before a jurj\ The first verdict was for $1500, ou which a new trial was granted. The second verdict, from which the present appeal is taken, was for $2500. The evidence indicates that Conolly was not entirely deprived of consciousness, but. his faculties were, no doubt, greatly obtunded. His sufferings were severe; and though he must have suffered in any event, it would be a reproach to the medical art to suppose that it could not have means to alleviate them, had he received proper attention. The medical testimony indicates 'that the attack was necessarily fatal. The humiliation of this position was extreme, and it is probable that he felt that to some extent, because one witness states that, when asked if he was drunk, he shook his head. On the whole, considering all the circumstances, we consider that an award of $1500 will do justice. It is, therefore, ordered and decreed that the judgment appealed from be amended by reducing the amount to $1500, and that, as thus amended, the judgment appealed from be affirmed, plaintiff to pay costs of appeal.