Rizzo v. New Orleans Railway & Light Co.

WESTERFIELD, J. This is a suit for damages against the local street railway arising out of an injury to a passenger. At the time of the accident plaintiff was seated in an Esplanade Belt ear with her arm on the window sill. A car, moving in the opposite direction, and operated by the defendant company, passed the car in which defendant was seated on the side nearest to her. As this car passed she was heard to scream and discovered to be painfully injured, her arm was fractured. To adopt her own language: “I hollered and I said ‘Mama, I am hurt.’ She said, ‘What struck you?’ I said, ‘I don’t know.’ I couldn’t see at night (the accident happened at 10 p. m.). I grabbed my elbow, and I seen the bone was out of the meat, and (I) was crying and hollering that I was hurt, and the motorman and conductor told me to go to the Charity Hospital to get treated, that it was the best place for me to go.” One of defendant’s witness, Henry Hayes, gives this description: “Well, when the both cars passed, it went ‘pie’. She hollered, ‘I am shot,’ and everybody looked towards her.” The witness evidently meant by the use of the word “pie” that there was a sharp loud noise. The clearance between the two cars at the point of the accident is but a few inches and it is manifest that plaintiff was injured by the passing car. Indeed both sides are agreed on that point, but, beyond this, neither party has proven the cause of the accident. Both counsel have indulged in conjecture. Plaintiff’s counsel suggests that there might have been a loose bar of iron attached to a screen with which the car was equipped . which struck plaintiff as it passed, and also [687] that the swaying motion of the cars in such close proximity may have caused some portion of the car to strike plaintiff, the defendant’s witness to whose testimony we have alluded says there was a loud noise or as he puts it “it went pie”. Opposing counsel suggests that plaintiff must have negligently stuck her arm out of the car and. been hit by the passing car. The conductor testifies that she admitted to him, after the accident, that she did so, but this statement is contradicted by plaintiff, and she is corroborated by two other witnesses. Besides, it would have been very difficult, if not impossible, for plaintiff to get her arm out of the car in the position she was in. The car, both cars in fact, were equipped with screens, designed to prevent accidents of this kind. The screens were placed about two inches above the sill, and were eleven inches wide. It is not claimed that plaintiff put her arm through the screen but over or under it. Assuming that she could get her arm under the screen between it and the sill, a rather violent assumption, she could not do so in a sitting capacity, because of the angle of her arm with reference to the opening. She must therefore lie down on the seat to obtain the proper angle. This she would hardly do and could not do with her mother seated beside her as is testified to here. To be seated and extend her elbow over the screen, assuming that could be done, would cause her much discomfort if not pain and is altogether too improbable to believe. Nevertheless, she was injured, and by the passing car. Defendant’s counsel insists that since there is no proof that defendant was negligent and testimony by defendant’s employees that nothing unusual occurred in the operation o.f the cars, that there can be no recovery. We might agree with him were it not for the fact that plaintiff was a passenger. The rule, with respect to a passenger, differs from that applicable to third persons because of the contractual relation. The carrier undertakes to transport the passenger in safety to his destination, to the extent that the exercise of the highest degree of practicable care will insure such safety. The instrumentalities of transportation are wholly in its control, and when, as in this case, a passenger is injured by one of those instrumentalities in the hands of its servants and operatives, the presumption, is that it was negligent and the negation of fault by its employees will not exculpate it. Under such circumstances it is for the defendant to show “what negligence and whose prevented the fulfillment of the contractual obligation”. “It is sufficient for a passenger suing on a contract for safe passage to show that he was not set down safely at his destination to throw the burden of explanation on the carrier to prove what negligence and whose prevented the fulfillment of the contractual obligation.” “The burden is on the carrier to establish affirmatively the contributory negligence of the passenger.” Hopkins vs. N. O. Ry. and Light Co., 150 La. 62, 90 South. 412. Poncet vs. So. New Orleans Light and Traction Co., 3rd La. App. 64; also 150 La. 61, 90 South. 512. Spurlock vs. Shreveport Traction Co., 118 La. 1, 42 South. 575; McGinn vs. New Orleans Ry., 118 La. 811, 43 South. 450. Hunt vs. Morris, 6 M. (O. S.) 681. LeBlanc vs. Sweet, 107 La. 355, 31 South. 766. State vs. Carro, 27 Ann. 377. Peniston vs. C. St. L. & N. O. Ry. Co., 34 Ann. 777. Reeves vs. New Orleans G. N. R. Co., 126 La. 513, 52 South. 681. Casper vs. New Orleans, 121 La. 603, 46 South. 666. 139 U. S. 151; 147 N. S. 571; R. C. C. 2754. [688] Plaintiff was employed as a bag printer by the Bemiss Bag Co. She lost three months wages and suffered a great deal, according to her testimony, but the medical testimony concerning her injury is unsatisfactory. However, her arm appears to have been broken. We will allow eight hundred dollars. For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff, Eva Rizzo, and against the defendant, New Orleans Railway and Light Co., in the sum of $800.00 with legal interest thereon from September 27th, 1916, and all costs.