
    WILL WASHINGTON versus J. D. O'KEEFE, RECEIVER OF N.O. RY. & LIGHT CO., ET AL.
    NO. 8213 - 8242
    COURT OF APPEAL PARISH OF ORLEANS CONSOLIDATED
    YÍILLIAH A. BELL, JUDGE:
    
      
    
   BY: WI1SIAM A.. BERB, JUDCE:

51» plaintiff herein -sues -the Receiver of the Hew Orleans Railway &¡ light Company, and Mr. H. Jdokson, as •oo-defendants* praying for judgment in solido in the sum of $1,625.00, as damages alleged to. have been suffered from an aooldent to plaintiff on October 31, 1919,. about 7:30 a.m., while he was a passenger on a Dauphins Street oar operated by the Company. The aooldent ooourred at the first down-going intersection or curve of Horth Rampart Street and Jordan Ave. At this point an auto-truck belonging to M.H., Jaokson, and the Company's oar collided,-causing the plaintiff-, (a oolored man) to be suddenly thrown against the comptroller box on the conductor's platform, and breaking one of his left ribs near its juncture with the backbone - contributory negligence on the part of both defendants is oharged. There was judgment without jury - for $1,250 only, against M, H. Jaokson, and dismissing plaintiff's claim against the Company. Jaokson appeals under record No. 8213 and plaintiff appeals, praying for Judgment in solido against both' defendants, under reoord Ho. 8242 of this Court, Both appeals on motion, have been consolidated.

There is considerable conflict of evidence as to the circumstances of the aooldent ana as whether one or both of the defendants were at fault. Neither defendant charges the plaintiff with negligence, but Jaokson defends on the ground that the Company was wholly liable for the accident. Plaintiff argues before this Court that the Company is specially liable and has contributed to the proximate cause of the accident because of its failure to observe the duty imposed upon it, at law, to furnish plaintiff with a seat in the car upon which he was a passenger at the time of the accident,' The evidence is conclusive that the oar was over-orowded with laborers and other passengers, some on the front, and many on the rear platforms, and all seats both for oolored and white passengers, occupied. Ilaintiff was most probably standing on the only space he could find on the oar. It therefore remains for this court to determine, not only whether one or both of the defendants are liable for the aooident, but whether the Company, irrespective of any other faults, was specially negligent under the law in failing to furnish this passenger with a seat, which under the circumstances would have enabled plaintiff to escape injury, none of the seated passengers having been hurt.

Considering first the law question just stated, we find from the jurisprudence of this and other states, that plaintiff's contention is not supported by authority. In city railway traffic, especially, there is no reasoning which justifies the doctrine contended for by plaintiff. It is a fact of which all courts will take cognizance that rapid and efficient transportation in modern-day, city traffio involves almost necessary and unusual crowding of passenger oars at "peak-hours." It is a condition to which both the public service corporation as well as its patrons, lends common, consent, and in the ab3enoe of franchise or legal prohibition, one who accepts the condition oannot be heard, when injured, to urge it as a contributory act of negligence on the part of the company. The only exceptions which would justify the non-application of this estoppel - if it may be so called - would be the added protff that incompetent service or defective equipment, chargeable to the Corporation, rendered the accepted crowded condition one whish a prudent, and even indulgent passenger, could not be expected to assume. We approve of this doctrine which has been frequently annunciated by the Supreme Court of this State, but which is particularly well expressed by the highest court of Tennessee, as follows:

"Street oars are run for the accommodation of the public, as well as profit to the company, and the Courts oannot say that the fact that the Company permits .a large number of passengers to occupy the car, sufficient to load it heavily, is an act of negligence. To so hold would work very great inconvenience to the travelling public and impair the efficiency of the oar sefvice.
"One of ti» renulrenents of modern pity life is rapid transit; and the public has demanded that-the street oars, at certain hours of the day, be loaded to their utmost capacity. It is doubtful if the company could refuse to receive a passenger upon its oar as long as there was room in the car for him. A tender to the company of the requisite fare and the ability of the passenger to find a place of safety upon the car would impose an obligation upon the company to receive and transport the passenger.”
De Glopper v. Nashville Railway & Light Co. 33 L.R.A. (N.S.) 917. See also:
Viator v. New Orleans Railway & Light Co. 139 La. 439; Landix v. New Orleans Railway & Light Co. 140 La. 529; Olivier v. L.& N.Rd.Co., 43 La. An. 804.

Counsel for.plaintiff oites with oonfidenoe the ruling made in Basey et als vs. La. Ry. C. N. Co., 137 La. 457, also Thompson vs. New Orleans Railway & Light Company, 145 La.806.

The judgment in the Basey case was for defendant, reversing the ruling of the lower court. The most oareful reading of this authority cannot lead us to the plaintiff's conclusions taken from the excerpt of this opinion, as cited in his brief. The facts in that case show the plaintiff to have been a passenger on a crowded railroad train, heavily loaded with passengers, who were induc.ed- to ride upon a particular train extensively advertised by the company for a special excursion or gala occasion, thus creating oondltions which should have been previously and carefully provided for by ample accommodations . The oar in which Basey was injured could not/under any conditions have been deemed safe, being a gondola car, not used under even ordinary or usual customary travel, and the jolting of the oar which was the direct cause of the injury was one over whioh the oonqpany was found to have had no control. The theory of the company's possible liability for crowded oars, as discussed by the court in that case, is shown to have been at best, nought but obiter, and oannot be applied to the case now under consideration.

The Thompson case resulted in recovery, for the plaintiff, but under conditions in no manner similar to the facts before us. By a divided court, two justices dissenting, it was Reid that the unknown oauses of a Jolt, resulting in injury to a passenger was to be presumed the fault of the company, although the physical condition of the plaintiff, prior and subsequent to the accident, (like the plaintiff's condition in the Basey case) could have easily been considered as the direot cause of death.

February 13, 1922

In the case before us there is no room for the application of the doctrine of the last clear chance, unless it be applied to the defendant, Jackson, who attempts here, to apply it in turn, to the Company. We think the evidence shows clearly that at the moment of the collision of the truck with ,*A-the car that the operator of the truck had all, as well^the latest,clearest chance to avoid the accident. Ihere is nothing to disprove the statement of the motorman, corroborated by a disinterested passenger, also on the front platform - that the frofct of the car was taking its parallel with the Jordan Ave. track and was moving slowly in the curve (thus tending at every second to better conditions) when the truck, whose driver could have better seen the end of the oar, continued to move up Jordan Ave. nearer to the danger point.

While some of the witnesses are at variance as to the speed, the positions and possibilities of control concerning both the truck and the car, we can see no patent error in the findings of the trial Judge, who heard and saw the witnesses , and who doubtlessly has given most careful weight to all the evidenoe adduced.

JUDGMEfTT AFFIRMED.  