107 La. 370 | La. | 1901
Statement op the Case.
The opinion of the court was delivered by
The plaintiff prayed for judgment against the defendant company for twenty-five thousand dollars, referring to it as Morgan’s Louisiana & Texas Railroad Company.
After alleging that it operated a line -of steam railroad for the transportation of passengers and that he had purchased a ticket from the company and paid his fare,'he averred that he was on the 3rd of August, 1900, a.passenger on car No. 318 of said company en route from New Orleans to Morgan City. That just after the train to which his car was attached had passed Gretna station, and- while he was seated in the car, he was suddenly struck on the right arm by an object which he afterwards learned was the door and the iron bolt or
That said blow bruised, crushed and fractured petitioner’s right arm, causing him great pain and suffering; that he was attended temporarily by fellow passengers; that the train was stopped and petitioner was removed 'from said car to the Charity Hospital in New Orleans, where, on the same day about noon, petitioner’s said arm was amputated at the elbow — the said fracture and injury being such that amputation was necessary.
That petitioner thereby lost forever the use of his right arm, reducing materially his capacity for making a living, besides mutilating and disfiguring his body. That at the time of said occurrence petitioner was a merchant in New Orleans, a member of the firm of Olere Bros. & Co. in which firm he occupied the position of a traveling salesman, receiving in addition to his salary a share in the profits of said business. That his connection with said firm grew out of and was maintained chiefly by reason of his capacity as a traveling salesman, which occupation requires activity and physical ability to take care of one’s self especially in-riding and driving in day and night through the country parishes of Louisiana, where much of petitioner’ i time was necessarily spent. That the loss of his right arm increases the cost or expenditure of traveling and had reduced his earning capacity. - -
That petitioner lost seventy days of time from his business by reason of his said injury, during which period he was unable to earn his salary and, on the contrary, was laid up, invalided and unable to work and enduring constant physical and mental suffering; that he incurred expenses for physicians and medicines, and that while he had not lost his employment his strength had been undermined, and his capacity to earn a living had been effected as his usefulness to his co-partners or other employers had been materially reduced by the loss of his arm as aforesaid.
That defendant company was responsible to petitioner for his mutilation, pain and suffering, losses and injuries, because—
1st. Petitioner was without fault or carelessness and-contributed in no way to said injury. That he was a passenger on the said' car, in
2nd. That the two cars in question were larger than usual and there was no room between the two tracks for said ears to pass each other, particularly if the said freight car had its door open or had anything projecting from the same. That the tracks at that point, namely the track on which petiti.oner’s train was passing and the track upon which the freight car was lying, were constructed in violation of the rules of the company as to distance between centers of tracks and were, in any event, not placed sufficiently far from each other to provide against accidents of this kind.
3rd. That the freight car in question had been lying within the yard limits of said defendant company with its door open or unsecured in the position which caused the injury for some hours in full view of the defendant’s employees and was seen by or should have been seen by said employees and by the engineer and employees'in charge of the train; that it was gross negligence and carelessness on the part of said employees not to have seen said car or, having seen it, to have allowed it to remain in that position at a time when passenger trains were known to be approaching and passing, .and it was gross negligence on the part of the engineer of the train to attempt t» pass said obstruction under headway as he did.
That for the mutilation, dismemberment and disfigurement, his pain and sufferings, „ and his decreased ability to earn a living, petitioner assessed his damages at twenty-five thousand ($25,000) dollars aforesaid.
In view of the premises, petitioner prayed that Morgan’s Louisiana & Texas Eailroad Company be cited and after due-proceedings had
The defendant, after stating that its real name was Morgan’s Louisiana & Texas Railroad and Steamship Company, pleaded the general issue.
Further answering it specially denied that the accident referred to or intended to be referred to was due to any fault or negligence on its part or on the part of any of its officers, agents or employees, and it averred that said accident was contributed to by plaintiff’s negligence in unnecessarily .and carelessly exposing his person to injury by allowing his arm to protrude out of the window of the passenger coach in which he was riding.
Opinion.
There is no dispute between the parties as .to the fact that, at the time of the accident set out in plaintiff’s petition, he was a passenger seated near a window, in one of the coaches of a train of cars belonging to and operated by the defendant company. That while so seated, and the train being in motion, he was struck upon the arm by some object which injured him to such an extent as to necessitate its amputation. That the object which struck the plaintiff was either the door or a projecting hasp or bolt attached to the same of one of the side doors of a freight car belonging to the defendant company which was at rest upon a switch track also belonging to the defendant company, which connected with the main track upon which the train was moving. That this freight car had been placed by defendant’s employees upon this switch the evening before thé accident, at the point which it occupied at the moment the accident occurred, and that point was so near .to the main track, that when the door of the frieght car was wide open, with the hasp or bolt extended to its utmost limit, the hasp would strike the side of a passenger coach, as, in motion, it passed by. The defendant denies that the plaintiff was struck by the projection of the hasp or bolt of the door into the window "of the passing passenger coach at the point where plaintiff was sitting. It concedes that the bolt struck the coach, but it contends that it did so at a point several inches below the sills of the row of passenger car windows, as was shown by a defined line upon that ear showing' its line of contact.
The defendant denies that the person who threw open the door of the freight car was an employee of the company. He maintains that if any employee had thrown the door open, it would have been in violation of his duty and the rules of the company. He urges that the freight car was loaded with moss and consigned to one Hepting, and had been turned over to Hepting for the unloading of the moss and the company was not responsible for Hepting’s acts.
It will be well to refer to the law governing generally this class of cases before making special application of it to the case immediately before us. We think it is very generally recognized that, for the safety of their passengers, common carriers are required to exercise the higest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution .of their business.
While common carriers are not absolute insurers of passengers, yet as declared by this court in Black vs. Carrollton R. R. Company, 10 Ann. 38, “It is an implied condition of railroad companies with each
In Grand Rapids & I. R. Co. vs. Boyd, 65 Ind. 526, the court said: “A common carrier of passengers is not an insurer of the passengers’ safety against all the accidents and vicissitudes of travel, but it is an insurer against- all risks caused or increased by the negligence of the carrier where the passenger is not at fault. The negligence of -a common carrier in carrying the passengers includes his negligence in all the departments of his undertaking, the condition of the road, the character of the machinery, the quality of the cars, the insufficiency of the equipments, the skill and conduct of the agents and employees, in everything indeed, necessary to the safety of the passenger when he himself is not at fault.” While the -carrier is held to very strict care, the passenger himself is not relieved of -all obligation of taking care of his own safety, but, “unlike the carrier,” he need not exercise the highest degree of care. He is bound to exercise only ordinary care and prudence to preserve himself from injury. Fetter’s Carrier of Passenger,” Sec. 128; Maekoy vs. Railway Co., 18 Ted. 236. Smith vs. Railway Co., 32 Minn. 1; 18 N. W. 827, Keokuk North Line Packet Company vs. True, 88 Ills. 608; Boland vs. Railroad Co., 65 Cal. 626; 4 Pac. 672.
The standard by which to determine whether or not a normal adult passenger has failed to exercise the degree of care is, whether his conduct is that of a prudent, reasonable, man, in possession of his ordinary senses and capacities placed in his situation.” (Fetter, See. 128, Sims vs. Railway Co., 27 S. C. 268; 3 S. E. 301. It has been held that “whether or not the act of a person is negligent, depends upon whether or not- a person of” ordinary prudence “would have done or omitted to do- the same thing.” Galloway vs. Railway Company, 87 Iowa, 458-54, N. W. 447. The test of the liability of one to a charge of contributory negligence is whether a prudent person, in the same situation, and having the knowledge possessed by .the one in question, would do the alleged negligent act. Texas & P. Ry. Co. vs. Best, 66 Tex. 116; 18 S. W. 224. See also Curtis vs. Railroad Co., 27 Wis. 158.
“The passenger on a railroad train has the right to confidently rely on the care and watchfulness of the carrier to make all things safe for his transportation with its necessary incidents. While passively submitting himself to the carrier’s care during the journey * * *
It was bound to know that its passengers, in common with those on other street railways, were in the habit of riding with their arms resting on the window sills and projecting outside of. the cars; that under the usual conditions of construction of parallel tracks in the city, this practice was free from danger of collision with passing ears, on their respective tracks; that the width between its own tracks at this curve was exceptionally narrow; that the ear No. 4 used by it was exceptionally wide; that such car in running over that curve was liable to meet another ear; that in such meeting they would, under conditions perfectly probable, pass each other so closely as if not to collide to come very near touching; that in such event a passenger in either car occupying the position shown to be very commonly occupied, would inevitably be injured. Knowing these things, a reasonable care for the safety of others would have dictated the duty of using precautions to ovoid the danger.” Quoting, the court said: “As well said by an able judge, ‘When we are engaged in an act which the surrounding circumstances indicate may be dangerous to others, and when the event whose occurrence is necessary to make an act injurious, is one which we can readily see, may occur under the circumstances and unite with the act to commit the injury, we are culpable if we do not take all the care which prudent circumspection would suggest to avoid the injury.’ Fairbanks vs. Kerr, 70 Penn. St. 86.”
The court decreed the defendant guilty of “negligence,” as defined by itself in its decision. It then proceeded to consider whether the plaintiff was guilty of contributory negligence, saying:
“ The sole negligence charged is his act in sitting as he did with his arm resting on the window and his elbow projecting out of the car.*378 Applying the principles already enunciated to the facts stated, we are of the opinion that there is a complete want of causal connection between the act and 'the injury. * * * It seems to us manifest under the circumstances of this case that no ordinary circumstances or foresight would have suggested to the most cautious person situated as plaintiif was, the slightest probability of danger from the meeting of a car on a parallel track. Seeing a car approaching he would have been perfectly justified (according to all common experience) in diverting his attention and resting in the perfect confidence that it would pass without touching him.”
If the ear had jumped the track, and had thus collided with the exposed arm of plaintiif, a different question would be presented. Quoad such a contingency, the act of plaintiff might have been judicially negligent. A prudent man might well foresee the possibility of such an occurrence and might well be held to have taken upon himself the risk of such a peril. But, viewing the particular damage here suffered concretely, Mr. Wharton’s question, “Was it in ordinary natural sequence from the negligence?” must ¡be answered in the negative.”
In Spencer vs. Railroad Co., 17 Wis. 787, the court said: “It is probably the habit of every person while riding in the cars to rest the arm upon the base of the window. If the window is open it is liable to extend slightly outside. This, we suppose, is a common habit. There is always more or less space between the outside of the car and any structure erected by the side of the track, and must necessarily be so to accommodate the motion of the train. Passengers know this and regulate their conduct accordingly. They do not suppose that the agents and managers of the road suffer obstacles to be so placed as to barely miss the car while passing. And -it seems to us almost absurd to hold that in every case, and under all circumstances, if the party injured had his arm the smallest fraction of an inch beyond the outside surface, he was wanting in order and prudence.”
Coming now to the case before the court, we are of the opinion that the defendant company did not comply, as a common carrier, with ils duty to the passengers on its moving train, when it placed or allowed the loaded freight car, with its wide doors and bolts, to be placed as it was, on the switch connecting with the track, on which it was, and .in permitting that car, after it had been placed where it was, to go into the possession of a person other than one of its own employees to be by him unloaded. It was unjustifiable in the company to place one of its
On defendant’s theory of the case, the car on which the plaintiff was a passenger, was moving towards the door and the door was moving towards the car at the time of the accident, while plaintiff himself was passive. We do not think that the plaintiff by any act of his estopped himself from recovering damages for the injury.
What did the plaintiff do which has cut him off from his action? The defendant says if it was guilty of negligence, so also was the plaintiff guilty of negligence. But is this true? At the utmost, the plaintiff inadvertently or forgetfully permitted his elbow to project somewhat beyond the outer edge of the sill. If in point of fact the arm was projected, it does not appear how far beyond the sill it was so projected, nor for how long a time nor from what cause. It can scarcely be claimed that a passenger on a train should be constantly on the alert and on guard at every moment of his trip, to see that his arm does not pass a hair’s breadth beyond the outer line of the sill, that he should watch every movement of his body lest, perchance, in turning or stoop
Unless the act itself in respect to which inadvertence or forgetfulness or inattention is charged to have been committed is negligence, the inadvertence or forgetfulness cannot be negligence.
What is negligence? And what is contributory negligence? TM3 court has itself, in the case of Summers in the 34th Annual, given a definition of the word. Several other definitions given will be found in Fetter’s Carrier of Passengers, Section 3. The definition of this court referred to, is as follows: “Judicial negligence is the inadvertent omission to do something which it would be the legal duty of a prudent and reasonable man guided upon these considerations which ordinarily regulate the conduct of human affairs, to do, or the inadvertently doing something which it would be the legal duty of a prudent and reasonable man not to do, such act or omission being on the part of a responsible human being, and being such as in ordinary natural sequence immediately results in the injury complained of.”
“This definition, though perhaps redundant, includes unequivocally all essentials and excludes acts not properly within the domain of negligence. It excludes offenses or intentional wrongs. It excludes mere moral duties. It excludes irresponsible persons, of whom various classes are mentioned by Mr. Wharton. And it excludes all acts or omissions which, though they may be negligent, with reference to certain relations or contingencies, have no causal connection with the injury complained of.”
Assuming that the plaintiff did in point of fact project his arm to some extent beyond the window sill of the window at which he was seated, was -his doing so, under the circumstances in which this was
We have repeatedly relieved defendants from the charge of negligence where the act done was one which the party committing it had no reasonable ground to know or believe or could not reasonably be held to foresee in the light of attending circumstances, and which he did not know or have reasonable grounds to know would carry with it injury as its natural and probable sequence.
If the arm of the plaintiff projected beyond the window sill, as defendant says it did, it does not show how far it projected, or for how long a time it did so. It may have been there for only a second of time, in his act of moving or turning. In Patton vs. Pickles, 50 Ann. 864, referring to the relations between a common carrier and its passengers, we said “the contract between the parties is one which from time immemorial has imposed upon the obligor exceptionally severe obliga-iions. Safe carriage is not merely an incident of the contract, but it is its very direct object.” We do. not think that a railroad company can, by its own act or that of one for whose acts it is responsible itself, injure one of its passengers, and then throw upon him the .obligation of disproving contributory negligence. In such a ease the carrier must establish affirmatively the acts on the part of the passenger which it claims bring him under the operation of the rule of contributory negligence, barring him from recovery of damages. (Kennon vs. Vicksburg, Shreveport and Pacific R. R. Co., 51 Ann. 1604.) The views herein expressed .are substantially held in Summers vs. Crescent City R. R. Co.; Lampkin vs. McCormick, 105 La. 417, and Kird vs; The New Orleans and North Western R. R. Co., 105 La. 226. See Chaffee vs. Railroad Co., 104 Mass.; Hempenstall vs. Railroad Co., 82 Hun. 285; 31 N. V. Supp. 479; Archer vs. Railroad Co., 106 N. Y. 589; 13 N. E. 318; Fetter’s Carrier of Passengers, Sections 130, 131 and 127.
We think the judgment is far too large an amount. It is hereby reduced and amended to seventy-five hundred dollars, and, as so amended and reduced, it is hereby affirmed.