Hinton v. New Orleans Ry. & Lgt. Co.

Dinkelspiel; J.

This 4s a damage suit. Plaintiff avers that she was a passenger on ohe of defendant's oars on the 6th day Si. August, 1931, and that about eight or nine o'do ok of that night when the oar reaohed Felioity and Annunciation Streets she pressed the button in order to get off at the oorner of St. Mary g,feand tnat when the oar reaohed the max point between Felioity and St. Mary Streets, she again pressed the eleotrio. bell notifying the oonduotor thus of her intention to alight at the oorner1 of St. Mary and Annunoiation Streets and that as said oar neared the oorner aforesaid she arose from her seat, went to the baok platform to await the stopping of the oar, in order to alight, and that said oar did stop at the comer of St. Mary Street; that just as- soon as it stopped another passenger getting on the oar blooked plaintiff's exit and that as soon as her path was olear enough to allow her to alight sksxKttsmpsd she attempted to do so and whilst in the aot of passing one foot from the platform to the step in leaving the oar, the said oar started and threw your petitioner from the platform to the groudd; she further alleges that when in the aot of stepping from the platform to the step that the oar started off without notioe or warning and that the jolt said oar gave when it smarted threw her off her balanoe and she was precipitated to the ground in a very violent matter. Averring further that as a result of the aforementioned aooident she was terribly bruised all over her body, suffered severe jnixi injuries, was oonflned to her bed atan* for quite a while;and for the Injury suffered and the aatcrmxxa mental anguish attached thereto, she was entitled to the sum of Mine Hundred Dollars and for Doctor's bills and medical services $100.00, claiming judgment In the sum of $1000.00.

The answer, after pleading, the general Issue, avejM that plaintiff nereeii was -one cause of whatever Injury she sustained, because of her Impatient and negligent oonduot in getting off the oar at the time alleged.

The evidence, as usual in oases of thle character, is conflicting*

Plaintiff relies on her own testimony and that of another witnesses. This witness, Julia Burnside, testified that she was standing at the corner of the Street and saw the aooident in question; she saw plaintiff fall from the step just as testified,to by plaintiff herself; in other words thaxa they substantially testified, both plaintiff and this witness, that m art spring attempting to alight from the steps of the oar and as the other passenger/got on the oar, plaintiff, when the oar started suddenly and gave a Jerk and jolt, was thrown to the grouna. Relative to the injuries sustained by plaintiff, the dootor who attend, ed plaintiff was never oallea to testify, and the nature of the injuries suffered Dy plaintiff, exoept through her own testimony and that of her witness is nowehre to be found in this record.

On the other hand, it is testified to by the motor, man, the oonduotor, and a passenger, a disinterested party, by the name of Hyber, who all testified substantially to about the same effeot, that is, that when the bell was rung in order for the oar to stop to permit plaintiff to alight it oameto a stop and as she got on the step, for some oause or other, she fell; the oonduotor immediately went to her assistanoe and asaited her to her feet, he asked her if she was hurt, the first said "no", and subsequently amended tbl* answer and said her baok hurt her; he further testified, sad he was borne out by the other witnesses,to the fact that after he raised the woman and pun her on her feet she walked away. Plaintiff claimed that she wae aeeited from the ground where she had fallen , by some friend, that she had loot con-oiousnese entirely for about ten minutes and she further te»~ tifiad that this friend had since died, hone she was untóle to produce him In Court*

We therefore have her testimony, unsupported save sad except by her friend previously referred,to, Julia Burnside, and we have the unoontradiote.d testimony of the oonduotor, motorman and a disinterested witness, absolutely to the contrary.

Whether plaintiff was seriously injured or incon-venienoed or not, the fact that she got off this oar when it had stopped to permit her to do so, is in our opinion be* yond peradventure, and under the facts in this ease viewing it in every way, we conclude that whatever injury *f any this plaintiff sustained, Bhe has failed to make her oase oertaln, and under the law, as deoided by the Supreme Court of this State, and our own Court, she are cannot xmmsmx reoover.

The decisions on this point/»* olear and our reports are full of them, amdxnx and amongst them, we oite the following oases:

*Where the motomeer of a street oar, in answer to a signal, is slowing down his oar, m order to stop it with the rear platform over the proper oroeslng, and a passenger has taken his position on the lower step of the patform, preparatory to getting off, the fact that the passenger loses his balance and falls to ghe ground, it being olaimed that suoh fall resulted from the sudden jerking of the oar, ana from the passenger eatohing his shoe in a defective step, will not justify the oonclueion that suoh fall Should he at* tributed to the negligence of the carrier, when %% appears that the irregularity of motion ooaplained of wae not great-*r than is usual in the stppping of street oars and that the step wae of an approved pattern and without diaooverable defeota. *

Philips vs. St. Charles St. Railroad Co. 106 La. 593.

'Passengers .on eleotrlo street oars assume the risk of injury from ordinary jars and jolts incident to the operation of suoh oars, with due oar, in the usual manner* w>.-t a lady passenger left her seat and stepped into the aisle, while the oar was in motion, and then fell down and injured one of her k* knees, held, that she cannot raoover damages from the railroad company, where the preponderance of the evidence shows that the motorman operated the oar with due care , and that it came to a stop, with no unusual jar or Jolt.»

Vincent vs. N. O. Ry. & Light Co. 134 La. 654.

And to the same effect Is the decision in Massicot vs. New Orleans Railway & Light Co. 141 La. 622.

It has been frequently decided that where the Judge of the lower Court heard and saw the witnesses he had a butter opportunity of Judging their veracity than we have and unless his Judgment is manifestly erroneous same will not be disturbed.

We have given this case oareful end' considerate attention and we are convinced that the Judgment of the Court aquo is oorreot.

For the reasone assigned it is ordered, adjudged and decreed, that the Judgment of the Court aquo be and the same is hereby affirmed.

-Judgment affirmed-