
    No. 13,334.
    John Nash vs. Canal and Claiborne Railroad Company.
    Syllabus.
    On Motion to Dismiss Appeal.
    An application to dismiss appeal on the ground that the defendant corporation has made an assignment of its property and franchises, and is no longer a party to the suit, will not be favorably considered when the record discloses that such assignment ivas made several months prior in date to the judgment appealed from, and of whihc appellee made no complaint by appeal, or answer filed in this court.
    On the Merits.
    When a stop Is made to permit a passenger to alight, ordinarily, the conductor should be on the platform of the car. The passenger who testified that he was injured in a fail from the car said, in substance, that his fall was occasioned by the brief stop and the abrupt starting of the car. The conductor, seeking to account for his being away from the platform during a stop, was flatly contradicted in several particulars by another employe of the railroad company.
    The proper manning of the car was not satisfactorily shown in the matter of permitting the passenger to alight. The passenger is, in some respects, corroborated in his account of the fall.
    The judge of the District Court who saw and heard the witnesses sustained his demand in part. There is always a presumption sustaining a judgment, and as the testimony does not rebut that presumption, and does not indicate wherein there was error, the judgment is affirmed.
    APPEAL from the Civil District Court, Parish of Orleans.— ' 8i. Paul, J.
    
    
      Theodore Ootonio for Plaintiff, Appellee.
    
      Glegg & Quintero for Defendant, Appellant.
    The opinion of the court, on the merits, was delivered by Breaux, J.
    On Motion to Dismiss Appeal.
   The opinion of the court'was dlivered by

Watkins, J.

Plaintiff and appellee moves to dismiss the appeal, on the ground that at the time of the filing of the transcript of appeal,there was no such corporation in existence as the Canal & Claiborne Railroad Company — said company having abandoned its corporate franchise and charter whereby the corporation became dissolved.

The said corporation having so abandoned its corporate franchise and charter, it ceased to be a going concern at the time of the filing of the transcript of appeal in this court; and that, therefore, there is no appellant prosecuting an appeal in this court, and this court is not vested with jurisdiction to hear and determine the appeal for want of a party appellant.

The record discloses that the cause was submitted to and decided by the judge of the lower .court, on the 25th of May, 1899; and that for the reasons orally assigned, it was decreed that there be judgment in favor of the plaintiff, John Nash, and against the defendant, the Canal & Claiborne Railroad Company, for the sum of two hundred dolllars.

It discloses, further, that the attorneys for the defendant, applied for a new trial, and upon its submission to the judge a quo, on June 16th, 1899, he reduced the judgment in favor of the plaintiff to the sum of one hundred dollars, and refused the application — this judgment having been signed on June 22, 1899.

It further shows that counsel for the defendant filed a motion for a suspensive appeal, on the same day the judgment was signed, and an order of appeal was granted, conditioned upon the defendant furnishing a bond as the law requires. That on the 3rd of July, 1899, the defendant gave an appeal bond in the sum of $350.00, and that same was signed and filed by the clerk of the district court.

From the foregoing proceedings L appears, that the plaintiff made no complaint of the judgment; did not appeal therefrom; and has not answered the appeal and claimed any increase in the amount of same.

The defendant and appellant filed in this court an answer to the •plaintiff’s motion to dismiss, and thereto annexed a certified copy of a notarial act of sale from the Canal & Claiborne Railroad Company to the New Orleans & Carrollton Railroad Company, of date April 1, 1899, which includes a large part of its franchises, property and avails.

Counsel for appellant submits, that on this state of the record appellee’s motion to dismiss can not be entertained — pointing out the paragraph in the act of sale, whereby the purchasing corporation specifically assumes 'the payment “of any and all final judgments which may be hereafter rendered in suits for damages and personal injuries, now pending in the courts of Louisiana, against the said Canal & Claiborne Railroad Company,” etc.

The conclusion is clear, and in our opinion undoubted, that the reasons assigned for the dismissal of the appeal are not good and can not be entertained, because the assignment by the Canal & Claiborne Railroad Company to the New Orleans & Carrollton Railroad Company, was made on the 1st of April, 1899, long prior to the trial of the cause in the District Court, and at a time when that information was perfectly accessible to the plaintiff and appellee. He is, therefore, conclusively presumed to have been satisfied with that situation of affairs when this case was tried and decided in his favor.

Notion to dismiss appeal denied.

On the Merits.

The opinion of the court was delivered by

Breaux, J.

Plaintiff, wliose occupation is that of a cart driver, brought this action to recover damages for injuries he alleged he received in alighting from a street ear owned and run by the defendant. He avers, that he is a cripple and can not walk straight; that on the 29th of November, 1898, at about six o’clock in the morning, he got on one of the cars of the defendant at the corner of Carrollton and Tulane avenues, and that as he was about to alight from the car at the corner of Tulane avenue and Yillere street, but before he could descend from the car, the conductor gave the usual signal, and the motorneer hurriedly started the ear, and thereby caused him, petitioner, to fall and injure himself on the head and body; that he lost time, in consequence, and another man was employed in his place while he was ill and suffering too much to return to his work.

Defendant answering, alleges that if plaintiff was injured by its ears, the accident was due to his fault, and it denies all liability.

The witnesses contradict each other, and for that reason, it is difficult to determine with certainty what are the facts of the case. The plaintiff, as a witness, says that the car on which he was riding did not stop long enough for him to alight; that by the sudden start, he was thrown six or seven feet on his head; and that the conductor was inside the ear at the time.

One of the fellow-passengers of the plaintiff was examined as a witness. He knew nothing of the asserted fall in which plaintiff claims to have suffp~ed injury. There were two men, employees at the Charity Hosph^j., who saw plaintiff lying in the street. They helped him np, and brought him to the Hospital. When he was on the ground, he was between the banquette in front of the Hospital and the first track, at or near the stopping place of the car. They, however, knew nothing of any accident. They saw plaintiff on the ground, picked him up, and brought him to the place just mentioned. The physician who dressed his wound said that it was only a slight incised wound on the temple, and that he was not seriously hurt.

The conductor of the car says that plaintiff, as a passenger was very imprudent; that on other days when plaintiff was a passenger, he warned him not to jump off when the car was in motion; that the morning plaintiff says he fell off, he jumped off (quoting from the testimony) “while I was collecting a fare from a passenger in the third seat. A lady got on, and a .lady was ready to get off the car, and I rang two bells to go ahead, and I saw this man walking, and the man who works at' the power house was there on the back platform, and he said ‘all right,’ ” and the witness gave the'usual signal to the motorneer to go ahead with the car. The name of the man to whom witness refers was Smith, an employee of the defendant at its powerhouse. He was a passenger on the platform of the car, being an employee of the defendant going to his work. He was called as, a witness, and testified to a different state of facts. The conductor,- he says, was standing near him on the platform, and he did not, as the conductor said, make a áign to the conductor to go ahead. The conductor is contradicted in two important particulars by Smith. The clash of contradiction in the statements of these two witnesses, leaves very little, if anything, upon which to base a conclusion favorable to the defendant. The conductor either lost his temper while testifying, or his want- of concern for this passenger on his car at the time of the accident rendered him inaccurate in testifying about the facts. We take it that the place of the conductor is on the platform when the car stops to enable passengers to alight. If he is called away at the time, he should be able, in case of an accident, to account for his absence. In this he failed.

It is unquestionably true that the plaintiff was injured, and that he was picked up at a place of alighting on his way to the place where be worked. He bas given a straight account of the accident, while that of the witnesses for the defendant is by no means convincing. After having given the matter our earnest attention, we conclude that the judgment should remain undisturbed.

There is a presumption sustaining every judgment until it becomes evident that the judge a quo has erred. Our study of the case has not convinced us that he has erred.

Plaintiff filed an answer in which he asked for an increase of the amount of the judgment. As the injuries were not severe, the judgment allowing one hundred dollars damage, we think, is enough, and, therefore, we affirm it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed.  