Babin v. New Orleans Ry. & Light Co.

72 So. 288 | La. | 1916

MONROE, C. J.

Plaintiff brought this suit for the benefit of his son, then a minor, to recover damages for an injury sustained by the latter whilst riding in one of the defendant’s cars, and the son, thereafter attaining majority, made himself party plaintiff, and now prosecutes the appeal from a judgment rejecting his demands.

The material facts developed on the trial were as follows: Plaintiff, a journey-man carpenter, boarded a Canal Belt car, at Esplanade avenue and Rampart street, with a view of being taken uptown, and, tbe car being pretty well filled with passengers, lie took a standing position on tbe left side of tlie rear platform, witb bis face to tbe front, bis left arm resting on tbe closed grill, or gate, and bis elbow projecting beyond tbe line of tbe side of tbe car. Wben tbe car reached a point between St. Philip and Dumaine streets, it passed, and was passed upon, its left side by, another car, moving downtown, upon the parallel and adjacent track, and some part of it, in passing, struck plaintiff’s projecting elbow and inflicted the injury of which he complains. Tbe two tracks on Rampart street are laid upon tbe neutral ground, upon either border of which there is a row of trees, and, in order to enable the cars to clear the trees, tbe tracks are laid closer together than they would otherwise be. So that, the overhang of tbe cars considered, they clear each other by only a few inches, which distance may be increased or diminished according to circumstances, that is to say, as the cars are going faster or slower, and as they may sway the one way or the other; the chances of their swaying being, in turn, affected by the condition of their wheels, and their relative positions on the tracks — wheels which are worn allowing somewhat more play or oscillation, and a car moving on a curve being more likely to sway than one moving on a tangent. That condition of affairs defendant had endeavored to remedy by asking permission to remove the trees, and (not succeeding in that) had endeavored to provide against it by having the windows of the cars so screened and barred as to render it impossible for passengers to put their heads, arms, or elbows out of them, and, by posting notices of warning on that subject; also, by diligent inspection of their cars and tracks, which are shown by the evidence to have been in at least reasonably good repair.

Plaintiff admitted that he knew 'that the windows were thus screened and barred, and understood the purpose, and that he had seen the warning notices; and, as it is clearly apparent that he would not have been injured if he had exercised the ordinary care which that information required of him, we are of opinion that the judge a quo correctly decided that he is not entitled to recover the damages which he here claims upon the theory that his injury resulted from the fault of another rather than of himself.

The judgment appealed from is therefore affirmed.