35 La. Ann. 202 | La. | 1883
The opinion of the Court was delivered by
The plaintiff sues to recover $15,000 for bodily-injuries sustained through the alleged carelessness of the driver of a
The defense is a general denial and contributory negligence.
The case was tried by a jury who rendered a verdict for $5,000. From a judgment in accordance, the defendant has appealed.
The plaintiff was a woman, sixty odd years old, and weighing 200 pounds, when the accident occurred. She was travelling as a passenger at the time, in broad daylight, on a car belonging to the Company, driven by a man in its employ for the special purpose. The car was progressing up Magazine street and was about, crossing Jackson street, when she gave the usual signal to stop. The car actually stopped. Two colored women came in when the plaintiff was about to get out. After they had entered the car plaintiff moved on to get out of it. She placed a foot on the step, turned arouud aud grasped the staucheon or handle. She was about to alight when the driver turned the brake off aud the car started suddenly. She then cried to the driver to hold on, but he kept on, some fifty feet, until forcibly yielding to the momentum of her bulky, massive and un wieldly person, or body, she was shaken off by the jolting of the vehicle, aud losing her balance, was thrown prostrate on the square block pavement of the street, nearly twenty yards above the intersection with Jackson street.
She was then picked up and assisted to a doctor’s office and after-wards removed to her own residence, where she received attention. The injury sustained on the occasion resulted, from a straining of the arm and from the bruises of her body, in a progressive paralysis which must shorten her life, terminating with complete paralysis. The course of the disease is declared to be seirrhosis, or a degeneration of the spinal cord. It creeps until it affects the lower portion of the brain. When that takes place it ends in death. The physicians of the plaintiff were beard. They say, the one, that he doubts very mncli whether she can live three or four years; the other, that he does not think that she will live two years.
We attach no importance to the fact that the suit was once tiled by a Judge alone, who rendered judgment for the defendant, as on the second trial, the case was decided on evidence which bad not been previously produced. On a motion for a new trial, based on newly discovered evidence and determined favorably by a different Judge, the first judgment was set aside and the matter submitted to a jury, who returned, as stated, for plaintiff.
The facts of the case, as found by us, are established by four disinterested eye witnesses, besides the plaintiff and exclusive of the two physicians.
We do not consider that the defense of contributory negligence has been established.
The driver was grossly at fault in not doing that which he should and could have done. He should have waited till the plaintiff had alighted before starting anew. The plaintiff could not be required or expected to have acted differently from what she had. It was physically impossible for her to have counteracted the headway under which her body had been impelled.
While the doctrines of law invoked by the defendant are of undoubted soundness, it cannot be questioned that the principles relied upon by the plaintiff are equally so.
In a case almost identical, which occurred in this State, reported in 22 An. 603, it appeared that while the plaintiff was getting out and was standing with one foot in the ear and the other on the step, the driver let go his brake and started suddeuly and rapidly forward, in such a way as to fling her down on the pavement. The jury returned a verdict of $6,000, and both the lower and appellate courts, applying the law, confirmed it.
In the case of Mary Poulin, 61 N. Y. 621, presenting an analagous state of facts, the Court held, that it is the duty of a conductor of a street car to give passengers a reasonable and safe opportunity to alight. He must stop the car for a reasonable time to enable the passenger to do so, aud if he starts before the passenger has stepped down or had reasonable time for that purpose, it is negligence. See 49 N. Y. 671, 673; 30 N. Y. 370; 38 N. Y. 131; 75 Pa. 83; also, Thompson’s Carriers of Passengers, p. 443, Sec. 3.
If a passenger is known to be in any manner affected by a disability by which the hazards of travel are increased, a degree of attention should be bestowed to his safety beyond that of an ordinary passenger. 36 N. Y. 39; Thompson on Carriers, p. 270, Sec. 5.
In the computation of damages in cases like the present one, it is impossible to arrive at an exact result. Not only the damages sustained up to the institution of the suit, but also those which the evidence shows to be reasonably certain, should be taken into consid
The plaintiff was a midwife by avocation, had an extended lucrative practice. She is now permanently disabled and deprived of the power and advantages of locomotion and of the earnings of her calling. She remains subjected to constant, protracted physical suffering and moral anguish, necessitating regular attendance and treatment. Her life is saddened with the gloomy ghost of death staring her in the face, steadily and mercilessly advancing upon her.
In the Howell and Peniston cases, 22 An. and 34 An., six thousand dollars were allowed.
We do not feel authorized to disturb the verdict rendered in this case.
The liability of the defendant Company, under the circumstances, is indubitable.
Judgment affirmed.
