Cusimano v. N. O. Pub. Service, Inc.

HIGGINS, J.

This is a suit in damages for personal injuries by a passenger against the street railway company. The petition alleges that ¡plaintiff, while a passenger on defendant company’s street car, attempted to descend from the street car to the street after the car had stopped, but while alighting from the car, it prematurely started, throwing plaintiff into the street, causing painful and serious injury. The defendant admitted that plaintiff had been a passenger on the car and alleged that she was injured after alighting from the car, but denied that it was at fault, and especially alleged that her injuries were caused by her failure to observe the degree of care required by the circumstances then and there existing. There was judgment below for plaintiff for $3,000, and defendant has appealed.

The evidence shows that the street car stopped at the corner in the usual or customary place to discharge passengers and that the street was paved and without any obstructions which would tend to cause a person to fall. The evidence also shows that the plaintiff sustained painful and serious injuries.

The evidence is conflicting as to what caused plaintiff to fall. Plaintiff contends that the car moved or jerked at the time she was stepping from the platform to the step for the purpose of deseehding to the street. Defendant contends that the car had stopped and did not jerk or start, but that, after plaintiff had descended to the ground and made one or two steps, she slumped down as if she had suddenly become ill or weak.

The plaintiff, Walter Towles, a bystander, colored man and witness for plaintiff, and one Henry Wagner, a passenger on the car and a witness for the defendant, all testified that plaintiff fell off the step of the car into the street. The seriousness of her injuries corroborates them. The unobstructed paved street is a further corroborative fact that plaintiff did not fall while walking away from the car. The conductor, Orto Crochet and Louis Moustier, a- passenger on the car, as witnesses for the defendant, testified that plaintiff fell after actually descending to the street and while walking away from the car. The evidence convinces us that plaintiff fell from the step óf the car while alighting therefrom and not after she had actually descended into the street.

In the case of Hopkins vs. New Orleans Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362, which was a suit by a passenger for damages for personal injuries sustained while alighting from a street car, the defendant contended that plaintiff had reached the ground and fell while attempting to walk away from the car. In disposing of this contention, the court said:

“There is nothing in the record to show that the condition of the ground on which she landed was such as was calculated to cause her to fall; while the reasons and circumstances which she details would appear, if true, to lead naturally to the result which she claims.”

On page 74 of the opinion (90 So. 517), after stating the severe injuries which plaintiff had received, the court further said:

“All of this strongly indicates that it is not at all probable that her physical condition resulted or could have resulted from a mere fall while on the ground, as testified to by defendant’s witnesses.”

On the question of what caused the accident, plaintiff and the witness Walter Towles testified that plaintiff was thrown from the car by its premature starting. They are contradicted by the witnesses Louis Moustier, passenger, and Orto Crochet, conductor, and John Fross, the motorman, who all testified that when once the car stopped it did not start until after plaintiff had been given first aid treatment and removed to the hospital. The evidence is therefore conflicting as to whether or not the premature starting of the car caused plaintiff to fall.

It is contended by the defendant that plaintiff, a white woman, age 30, of average height, weighing 268 pounds¡ fell because of her tremendous weight. The defendant’s own witnesses testified that she slowly walked from inside the ear, leisurely stepped on the back platform, and, according to their version, had actually descended into the street unaided and unassisted before she fell. The conductor, although on the platform, made no effort to assist her. It is therefore evident that, while the plaintiff was a woman of unusual weight, nevertheless she was able to walk without assistance. .

Plaintiff testified that she is a saleswoman and had to make house to house canvasses to sell the product that she handled and used the street cars daily, thus showing that she was able to get around reasonably well.

Defendant contends that, as plaintiff alleged specific act of negligence, i. e., premature starting of the car, as the cause of the accident, the burden of proof was upon plaintiff to prove the said allegation. The petition contains the general allegation of negligence, and therefore the specific allegation of negligence is to be treated as surplusage.

In the case of Frazier vs. South New Orleans Light & Traction Co., No. 8608 Orl. App. (see So. Rep. Dig.), this court said:

“The plaintiff in this case does allege general negligence on the part of the defendant. Inasmuch as under our jurisprudence that allegation was sufficient to entitle plaintiff to recover, we consider all the specific allegations of negligence as mere surplusage, and not essential to be proven by plaintiff. We do not favor the grafting of technicalities or the digging of pitfalls in our practice and jurisprudence. We (prefer to adopt the rule of fair practice laid down by Judge Provosty (in Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976), in these words:

“ Where a plaintiff cannot be expected to have any information as to the cause of an accident, whereas defendant must be assumed to be fully informed, and where the accident is of the kind which ordinarily does not occur when due care has been exercised, plaintiff need not allege nor prove the particular acts of omission or commission from which the accident resulted; but the accident itself makes out a prima facie case, casting on defendant the burden to show absence of negligence, and this rule is of peculiar applicability in cases of boiler explosions.’ ”

The record does not disclose what caused the accident, and the defendant has not proven what caused the accident and who was at fault.

Plaintiff has (proven by a preponderance of evidence that she was a passenger on the car and she was injured while alighting at her destination by falling from the step of the car into the street and thereby established a prima facie case. The burden of going forward and proving that it was without fault and who and what caused the injury was on the defendant.

In the case of Le Blanc vs. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303, Quoted with approval in Hopkins vs. New Orleans Ry. & Light Co., the Supreme Court said:

“The carrier ‘is bound to exercise the strictest diligence, in receiving a passenger, conveying him to his destination, and setting him down safely, that the means of conveyance employed and the circumstances of the case will permit. There is a broad difference, it may be remarked, between the obligation of a carrier to a passenger and his obligation to a third person complaining of a tort; the burden of proof in the latter case, save where otherwise provided by statute, resting upon the complainant to establish both the injury and the negligence which caused it; whereas, * * * it is sufficient * * * for the passenger suing on a contract for’ safe passage ‘to establish the contract and to show that he has not been safely set down at his destination,’ to throw the burden of explanation on the carrier. It is then for the carrier, and not the passenger, to show what negligence and whose prevented the fulfillment of the contractual obligation of the carrier. Le Blanc v. Daniel Sweet et al., 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Am. & En. Enc. of Law (2d Ed.) vol. 5, p. 558; Lehman v. R. Co., 37 La. Ann. 707; Turner v. V. S. & P. R. Co., 37 La. Ann. 648, 55 Am. Rep. 514; Summers v. Crescent C. R. Co., 34 La. Ann. 145, 44 Am. Rep. 419; Peniston v. R. Co., 34 La. Ann. 777, 44 Am. Rep. 444; Julien v. The Wode Hampton, 27 La. Ann. 377; Patton v. Pickles, 50 La. Ann. 857, 24 So. 290; Moses v. R. Co., 39 La. Ann. 649, 2 So. 567, 4 Am. St. Rep. 231.”

This decision was cited with approval by this court in Rizzo vs. New Orleans Ry. & Light Co., 7 La. App. 686.

Counsel for defendant contends that the district court has misinterpreted the following portion of the above-cited authority:

“It is then for the carrier, and not the passenger, to show what negligence and whose prevented the„ fulfillment of the contractual obligation of the carrier.”

It is contended by counsel for defendant that this rule imposes liability without fault. We do not think this contention is tenable because the presumption of fault merely remains the truth of the case until it is refuted by the defendant’s evidence. The theory and policy of the law in putting the burden of proof upon the defendant carrier is predicated on the fact that the carrier is in a better position to know the facts and to ascertain and prove the cause of the accident than the passenger. To impose upon the defendant the burden of explaining the accident does not seem to be unreasonable.

Counsel for the defendant company, in an elaborate and carefuly prepared brief, has undertaken to show that the Supreme Court did not intend to go that far. It is contended that the presumption of -negligence on the part of the company only arises when the circumstances attending the injury are so unusual or of such a nature that it could not well have happened without the company being negligent; then, and only then, is the burden of going forward and producing evidence in order to escape liability, placed upon the company to show that its negligence did not cause the accident.

We do not so construe the language of the Sweet and Hopkins cases, supra. Until the Supreme Court overrules or modifies the rule cited in those cases, this court must follow it, as we did in the Rizzo vs. New Orleans Ry. & Light Co.

As to the quantum of damages, the record shows that plaintiff was injured on August 28, 1925; that she sustained a split lip, necessitating two stitches; lost four of her teeth; that her nose was bruised and lacerated; that the whole left side of her face was Sruised; that she also suffered contusions and bruises on her left side, knees and elbows, shoulders and head. The evidence shows that she had a small ventral hernia before the accident, which was very much enlarged as a result of the fall; that she was taken to the Charity Hospital and remained there 21 days; that she was under the care of her physician from September 20, 1925, to January 12 or 15, 1926, when she was taken to the Touro Infirmary, where she was operated on January 16th, on account of said enlarged hernia, and discharged on February 6, 1926.

The evidence shows that plaintiff was earning $60 a month and lost ten months’ time. She owed a doctor bill of $150, paid a hospital bill of $63, drug bill of $29.85, and ambulance charge of $6, making a total loss or damage amounting to $848.85.

The judge of the district court has allowed $3,000 to cover all of the damages and personal injuries. Under the circumstances we consider the amount not excessive, and therefore the judgment appealed from must be affirmed, at the cost of appellant.