
    NO. 8725
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. OLIVIA SCHUMBRECHT versus WEST NEW ORLEANS LIGHT & TRACTION COMPANY; and SOUTHERN COTTON OIL CO.
   Dinkelspiel; J.

This is a damage fault.

Plaintiff institutes this suit against both of the defendants, alleging that the West New Orleans Light & Traction Company owns and operates a street railroad in the Parish of Jefferson and oarrles passengers on their street oleo-trio oars from Etretna to Merrero, and that on the morning of June 34th, 1930, shout half past six, plaintiff boarded oar No. 9 of said oompany, paid the usual fare, and that said car took on other passengers both at the point where plaintiff got on and at other points along the road until the oar became very muoh orowded, and when the oar reached the point at the rear of the Southern Cotton Oil Company, it left the rails , swung out from the track or rails, struok the telegraph pole or other pole along the right of way of said street oar traoks, crushing one of the passengers to death and then ooming to a sudden atop, violently in and along a large oitoh on the North of e> ;d traok, and that as a result plaintiff was thrown from the seat on the left side of the street oar to the floor of the oar with great foroe, bruising her head, left knee and left hip, and sustaining bruises end oontusions about the body, causing her muoh pain, agony and suffering, s.nd causing her to faint, and as a result she had to go to her bed; alleging further that at the time of the accident she waa in good health end earned a salary of seventy five dollars a month, but as th6 result of her injuries she was confined to her bed for over one month, was unable to go to work until August 37th, 1930, being under the oare of Dr. Johnson during whloh time she suffered muoh pain. Alleging that she was not in any wise guilty of negligence or carelessness, henoe did not contribute to the cause of said accident» but that same happened solely through the gross feat, oarelessness, reoklessness, and wanton negligence and improper management and skill of the railroad oompany and their oriminal want of precaution, ae well as those of the Southern Cotton Oil Company» Alleging that at the point where the said street oar in whioh she was riding left the track, an excavation had bean made mi in and under the roadbed of said traok, and the mud and dirt had been removed from under and around the drosstles and rails by the Sauthern Cotton Oil Company, for the purpose of putting across the roadway and under the railroad traoks, a oonorete ditoh or oelvert, for the purpose of draining the water from from the plant of the Southern Ootton Oil Company fa one side or the railroad traoke to the other side on the publio road, and that the Southern Cotton Oil Company falldd and negleoted to replace said railroad traok in a safo and solid condition in order that the railroad oould be safe in running its ears, and further that the railroad as knew that the Southern Ootton Oil Company was passing said oonorete culvert under its traoke, saw the dirt removed from beneath the orosaties and under the rails, and also that the dirt whioh had been removed had not been properly replaced between the said railroad traoks for a-space of thirty or forty feet on each side, where said .oolvert had been put, and that it was in a dangerous and weakened oonditlon, and that notwithstanding this fast, the railroad oompany ran its oars, in one of whioh plaintiff was riding, over and aoross the said weakened spot, the ear left the rail, wfeishx the oause of whioh xxc it is olaimed was the Joint fault of both the defendants, resulting in damages to her for whioh she olaims, for two months salary #150,00; drug bSll $24.00, for pain,suffering, and agony as a result of the injuries #1750.00, praying for Judgment in her favor against both the defendants for #1924,00.

To this petition there was filed by the West Hew Orleans Light & Traction Company, a general denlal;and in the answer-it fax admits that in the month of June 192Ó one ' of its os.re .was derailed in the rear of the Southern Cotton Oil Company’s property,.and that said derailment was oauaed by the act of thira persone who had dug a culvert under Aefendant’s traoks without defendant's consent or knowledge and that said oulvert was dug a short time before the derailment of the oar, end that dirt and gravel had been thrown into the hole underneath defendant's traoks so that it was Impossible for them to detect or foresee that the traoks were unsafe or unpassable; that their traoks were inspected by experts and that it was through this trespass of third persone that its traoks and roadbeds were plaoed in a weakened condition, causing the derailment of its oar. Wherefore it prayed for Judgment in its favor.

The Southern Cotton Oil Company filed a general denial, alleging that there had been a drain on the road along whioh the street oar line ran, for a number of years, erected under authority of the Polioe Jury and that this defendant made no excavation -jt that point, but renewed the oulvert with concrete without in any way destroying the surfaoe or weakening or in any manner impairing the safety or stability of said traok, end that the street oar we.e not derailed because of any work done by It, Answering further admits thst the oar was de-. railed, whioh derailment was due to the dangerous condition of the traok, whioh extended for s distance in both directions, and further in the belief that the manner In whioh the oar was orowded end operated over said dangerous traok caused the accident. Wherefore prayed for Judgment in it? favor.

On the trial of this oase we find the following agreement:

"It is agreed that the testimony taken on behalf of the various parties in the suit of Henry Felcht versus the same defendants, Ho. 3361, will be considered as having been offered in this case, so far as pertaining to the facts herein, subject seme to the/objeotions, reservations and agreements as noted between she plaintiff and the defendants in the Kfifcfctícfes Feloht oase. »

A careful examination of this reoord oonvlnoes us that on the morning of June 34th, 1930 the defendant &shics* traotion oompany's oar, orowded with passengers to its guage, ran off of its traok on the publio road along the rear of the Southern Cotton Oil Company's plant, a short dist&noe above the city of Gretna, the wheels of the oar moved the r 4.11s, ran on top of same for about ten feet and then ran off into the gravel road, swinging around to the South so that the right of the rear platform struok a pole possibly some three or four feet to the Horth of the track, causing a terrific Jolt; in this aooident one man wa.s killed and a number of other passengers olaimed to have been more or leas seriously injured; the testimony is oonflioting, some of the witnesses testify that the oar vras going at the rate of four or five miles an hour, others eight or twelve miles scaait an hour, and others again twenty or twenty five miles an hour. Evidently the oer turned a.t an angle of possibly forty five degrees or more, swung is the rear platform around against the pole so that the vestibule post was broksn and the rear of the oar dragged past the pole, although the motorman endeavored to shut off the power a.nd apply his brakes.

Under the agreement entered into, quoted above, the transcript in this esse is to be considered in connection with all the other as evidence, exhibits,, subjeot to the objections, reservations and admissions made in the case of Henry J. Feioht against the same defendants, now pending on appeal in this court, Mo. 8734, KiSkx

We do not intend to quote any more of the cestimony in this case than is absolutely essential to its decisión.

One of the witnesses, Peter Catatich, who was a laborer working for Swift & Company and who was on the oar at the time of the accident swears thst the car was crowded pretty heavyily to the back, thar he wrs on the back, on the step, having one foot on the step and one on the platform, and was between a colored passenger and others. When he got up to the bridge and et the other side of the bridge he found the oar was leaving the rail, and the back end of the oar wes going to connect with that pole, tha-t ±kax he could not Jump off, and a passenger reached out and grabbed him around the neck, pulling him and the pcxfc post hit this man and knocked another passenger off the back of the car; the car was going at a pretty good speed, he had been in the habit of riding on that- car before.

Joseph Drumm swears that he was the foreman of the Southern Cotton Oil Company, and had been such for about thirty years, he further testifies that it was hi3 duty to look after the drainage .around the front and the back of the plant, there was an obstruotion that had dropped from the bottom part of the bridge aoross the dltoh, a piece of timber, about four by six that held a plank up, that he was oompelled to put in new tiles and oonorete the top, that the trafilo and wagons had broken through the oulvert, the top- of the drain and the xx* roadway was going down in the ditoh; he testifies further that that ,, . . /Wxxssc was on the far side, on the wood side.

Q. Who had the supervision of the repairs that were made end tSe new oulvert shat was put in?
A: Mr. Smypp.

He was present, shifted the wagons over to the far sdie while working on that side, and testifies that Mr. Smypp said it would be best for somebody to go down and run the wagons down the other road, and that he went down to Delonde Street and met the wagons on the frontjwhsxsxh* when he started to that side the traok then went through and the wagons oould not go over. As near as this witness can remember they were two days oompleting the job, xrom start to finish. He testifies further that a portion of the street was out up, half one day and the other half the next day, and all the undor oonorete on the South side that is the wood side and/out the railroad traok was completed; he testifies that the oars ran on that traok some seven days, possibly ten, after it had been completed, that any ordinary person oould notice what had been done, and that the motorman on the street oar would not have any trouble seeing it; he further testified that whilst the work was going on he noticed the slow down of the ears whenever they crossed but that it did not last very Ipgn when the oars would make rapid speed.

Douis Trauth swears that he is a trackman s.nd formerly worked for the Southern Paoifio Railroad Company; that he followed that occupation for about forty five yeare.

Q. Did you have oooassion to examine the traok of the West Hew Orleans Light & Traction Company on the public road near the point of the Southern Cotton Oil Company, in June 1930?
A. Yes sir, at the request of the Southern Cotton 011 Company.
Q. Did you go there the day the oar was derailed? A. I did not.
Q. How long afterwards was it? A. The day after.
Q. Ha Did you make an examination of the traok and the roadbed at that plaoe? A. A certain portion of it; yes sir.
Q. What portion did you examine? A. We examined a portion of the drain px east of the drain and a little west of the drain, and found it pretty badly surfaoed, and wide guage in oertain parte.
Q. At what plaoe was the traok wide guage? A. That was about three or four feet east of the drain, about an inch and something wide there; in other words it was foxx 4. 9 5/8 at the time, and it was supposed to be 4 feet eight tad a half standard guage.
Q. Was there a ourve in that neighborhood? A. Just west of the drain there is a ourve.
Q. What was the guage at that point of the ourve? A. X didn't measure that right at the drain; we measured it further on and found it an inch wide to the west of the drain.
Q. Was that within the area of the exoavatlon that had been made there? A. Yes sir. Well the worst part of the elevation was east of the drain, about thirty feet of it, there it was badly out of line and bad surface.
Q. At this pJotít point where the curve was to the west of this plaoe where they had been excavating, was the elevation of the rails? A. The elevation was mighty *****»^»*1«™ little there, it wasn't more than about 3/4 of an inch,alls were not uafrt'fftjiá uniform, or one was lower Or the other one higher,
<|. The elevation begins in the outer rail, 3/4 of an inch higher then .the inner rail.
Q. What was the condition of the orosties? if. The orosstie's were vpretty soft mdwnrtir» at the drain.
Q. Did you examine vne orossties to the east tad to the west of this drain? A. Ho sir; I did not.
_ .. . , .worse shape ’**.■ Was traok in tayAta^xfctófcftd when this excavation had been made to*aaatxi*xKsxKxk*xxxx them- it was on each side of itS
A. Where the exoavation was made the traok was in good shape; it Was east of the drain where the traok was bad.
Q. From your examination of that traok, is it your opinion that the oondition of the traok, where the six excavation was made, and the tile drain that had gone under it, h~d anything to do with the derailment of the oar? A. Hot at all, sir.
Q. In your opinion what weight could have passed over that traok, where the drain was, with safety? A. Y/lth the excavating that I oould see, I suppose forty ton could cross that rail without bearing on it; that is a six and a half or seven foot span, seventy five or eighty Sound rail.
On cross examination:
Q, 1 show you a photograph taken of this traok, marked D-7, and ask you if that is not a fair representation of the place -where that drain was put? A. Well, that is. You have •. good fair track there, but it is the west; east of the drain, this is out of line, the wide guage on that spot.
Q. In other words at the point marked "X”? A, Yes; that is about three or four feet east of the drain.
A. Yes, MSiexafxiflwx east of the excavation.
Q. It is Inside of the exoavation? A. Ho sir, it is outside of the exoavation, because the excavation starts on that point, and there is about seven foot of it; in other words, there is a join, as we would oall it, about three foot east of the ex-oavation, and that was wide guage, and this line is out of line, and out of surfaoe.
Q. It is shown on the picture? A. Yes.

This witness goes on further to testify that there was a differenoe of about one and one-eighth inches, that the Government standard guage is four fset eight and one half inches and this one is about four feet, nine and five eighths inches.

Witness examined by the Court:

Q. Mr. Trauth, in the deflection or curvature of that rail, at that particular spot, as you say three or four feet from the culvert that was constructed there by the Southern.Oil Comoany, could that have been oaused by the work being done on that culvert? A/ Ho sir, it hadn't been caused by the work on the oulvert, beoause it was east of the oulvert.
Q. It was three or four feet from the culvert? A. Yes air.
Q. Oould- that deflection, or that curvature of the rail, have beBn caused by the work being done on that oulvert? A. Mo sir, I don't think.
Q. By not adding sufficient dirt on the side of the oonoreta oulvert th-1 ríes placed in there? A. It couldn't very well, because the rt il h»d spread on the ties; it wasn't that two rails v/ent together, it vis.s thet the roils spread, what we call an opening.
Q. It wsb not at a. joint? A. It was at s joint it had opened up,
whet vie c -1" ■ spre-'d trr-ck.
On cress e-M.inEt.lon this witness was asked:
% You don't know whether or not where that joint was is the plaoe where the excavation •ve; mf.de, : 11 you know is that it was about thro® f-e t from the colvart? A. Where the drain was entered.
Q. Where did the oar jump? A. I couldn't tell that, but X oould see •■vhers she rode the r*il, ju~t as she reaohed the west side of the drain.
t. In other words, it jumped w»9t of the drain? A. She jumped to the right, th--t is to the left from here, as you oould see it from here. I, w s or used by the vibration of the oar striking that low SyOt east of the drain; it reds her up on the top of the track on the right hand side.
Q. That W..-9 west, w.sn't it? A. West where it .derailed, but the esat portion tub the couse of the derailing, east of the drain.
Q, Did the two oar wheels go in between the rails? A. Mo sir, not that I oould see; they v/ent over the top}. one went on the inside and one on the outside.
Q. Then it oould not have been from a spread rail? A. I didn't say so; I didn't say the derailment was caused by a spreading of the rail, I said the vibration of the oar, the lov/ trank, and out of line, oaused the oar to list; the vibration of the oar oaused it to list over the top of -the rail.
Q. And it was not from any spreading of the rail? A. That helped towards it, that spread track; that all helped.
On reexamination:
q. Do you know where this spreading joint was, vfaether it was on the east or west of this excavation? A. It was three foot or something like that on the east side of the excavation.
Q. Was this joint anywhere along the line of the excavation?
A. It was about three feet east of that.
This witness subsequently oorreoted and said the oar started to jump the traok, the listing of the cs,r, the drain being out of line and lower, the hind wheel of the oar surging on through, that raised the front wheels on the west side of the drain on top of the rail, and caused it to derail.
Q., Do you know how far that oar ran after it jumped the traok? A. I judge about thirty odd feet; between thirty five and forty feet, something like that.
By the oourt:
Q. Mr. Trauth, you are an experienced trackman; oould the oar list and ¿save the rail if it would be running, say about four miles an hour? ¡,, Yes, sir, it oould do that at most any speed, it depends on wha.t we oall the wrench of the traok. You find a traok level ten feet, and here it is elevated three or four inohes, and the wrench of the traok will list that wheel up, provided the load is not balanoed, whet we call properly loaded; if not properly loaded it would balanoe that oar and work it on a pivot, and it would ride off the top of the rail.
Q. Would a light oar be more apt to derail than a loaded oar?
A. A light car would do it* almost the same, but if the load is not properly distributed on a oar, what we call properly loaded, she will do it muoh quicker; she will list herself so much that she will ride off the top of the rail.
Charles E. Snypp testifies that he is the distriot engineer of the Southern Cotton Oil Company, and that he oaused photographs to be ma.de in the neighborhood where this derailment ooourred, and where the drain was, but he also testifies that he superintended the replaoement of the oulvert, examined it;and asked to describe its condition, said it was a deflection in the roadway, speaking of the street; the cross members had fallen down inside of the box, and there seemed to be a slight declivity in the street oar traok, as fax as he oould see$ there had been a wooden box put there by the Parish of Jefferson, had been there so far as this witness knows, slnoe the'railroad, was put there, the Parish had. never repaired, it; he was present while the work was being done on these repairs and supervised it»
Q. What kind of material did you use in making these repairs, or this renewal? A. We supplied crook dxwstat drain tile, twenty-four inoh diameter, and we laid two lines of those tile across the roadway, and under the traok, and we used for filling briok bats and.these nigger head rooks, and oonorete made from briok bats and stone and relnforoed with wrought iron bars, and two inoh plank laid on top of the oonorete. And we used the same surfacing material that oame from the road on the excavation. It was very hard to excavate; we had a good deal of picking to do, it went rather slowly, and the road material proper was sixteen inohes thick over the box and on each side of the box it was ten inches thick, showing it had been filled up from toxic time to time, and had give down that muoh. Also used river sand, such as is used in gardens; commenced to work on the roadway and were compelled to divert it to the ilorth side of the roadway.
He testifies that they began work on the 14th whloh was a Monday and on that ds.y we layed praotio&lly fifteen or sixteen foot of the road on the wood side, putting in the srasxKfcaxftK orook and putting in the oonorete, end the next day we continued and laid the two inoh plank on top of the oonorete, for fear the oonorete was too green, and we filled up and taa?>*d it with heavy timbers, and the trafilo oould gm then go over it. The work on the street ear traok was done on the 18th and was absolutely finished and no further work was done on the morning of the 17th. Q. What was the condition of the railroad traok when you began work? A. It. was absolutely necessary to fix the oulvert under the railroad track when we bagan the work. After we Btarted on the railroad traok side the ground broke through, parting the ties, and it was dangerous for'any animal or--automobile ■ or.even people to walk along and we couldn’t get at that immediately, and we were compelled to divert the trafilo.: That was on the 15th.
<!• ■ When you oame to excavating that part of the'street tundea; the railroad track what condition did you find the ties and rails of the street oar line in?
A. There were two ties, X think, th*'t we excavated from under, that were loose on the wood side, and they were hanging four inohes from the rail, and there was an additional tie on the side of the gutter we did not think we should move, for fear that we might disturb something, which was also loose, end four inohes from the rail, that was hard packed with material that had been there for some time, and the spikes were not holding.
Q. What did you do as to the ties and rail whioh you Say WKanatx was not spiked together at that portion of the traok over your exoavation? A. We took great oare in setting a js-ok under the south side rail, end shoving those ties up and looking them fast where they laid, and we took great oare on the North eidó;_, the North side was lower than the South side, and we took great care in putting a long timber under, say about is®* ten feet long, to hold them exactly where they were. However, this was an extra precaution, I believe, because the material around those ties and rails was so hard that I- do not believe you oould have budged that rail, no matter what you did to it, and I didn't think it good polioy to disturb that rail.
Q. You said a rail was loose from a tie near the exoavation that you didn't touoh; which side was that on? A. The rail was loose on the south side, on the road side.
Q,. What was the condition of the ties to the east of the exoavation? A, The one that was hanging loose was he.rd paoked under it at the time we left it, as we found it. We left it that way, beoe-use we did npt feel that we should disturb it.
He testifies that the work did not lnterfeee with the sohedule of the street oar company, warned the motorman to run slow whioh he did part of the day but later on when he was crossing very nioely he aotually forgot sometime to run slow. That was on the ISth.
Q. When you went there the day of the aooident, and subsequently had there been any change in the level of the street oar traoks over your excavation? A. Hone whatever.
Q. fir any ohange in the alllgnment of the traoks over this excavation? A. They were just exactly as we left them.
This witness being questioned about his experience in laying traoks answered he had been around industrial plants praotioally all of his life, he laid some industrial tracks and supervised the work. He further testifies that the traoks were ia a better condition so far as the culvert was concerned, after the work had been done, they took great pains in tamping up the ties hard enough to hold them with good material.
Questioned by the Court he said:
Q. The whole traok over that part of the oulvert; you say the oulvert was in better condition, but was- the traok over the oulvert in a better condition, or in as good condition as it was before you built this oulvert? A, It was praotioally just as it stood before I built the oulvert. I took great pftJnt pains to preserve everything e.s muoh as I oould, exoept that I fastened those ties, and those ties were about two inohee from this heavy oonorete and plank. There were- about two inohes allowed underneath them for filling,
Q. Was there anything above your concrete in the shape of filling or oonorete or anything else whi.oh would give way, because of rain or anything else? A. Ho chance. The road material I jammed in there consisted of gravel and shells, and they make a very solid tamping material.
Q. Did you disturb the traok in any respect the other side of your excavation? A. We did not disturb it; iu fact I don't believe we oould XXX have disturbed it unlees we would have went there with a piok and picked it up, and it would have been a good big job to do it. The ground is very hard.
Cross examination of this witness did not in any way materially vary from the testimony whioh he gave in his direct examination.

It would serve no useful purpose to .enter further into the testimony of other witnesses in this oe.se, and there are quite a number, but none of them in our opinion would materially change the testimony heretofore recited, and from the testimony quoted and from the exhibits on file, we are oonvlnoed that the xx Southern Cotton Oil Company, one of the defendants in this oase did nothing to oause the aooident in question, but on the oontrary did everything that could be done and that was required for the making of the oulvert in question which had no connection with the aooident.

The plaintiff in this case was working with Peniok and Ford and was a passenger of the traotion company on its' car on the morning of the aooident, had paid her fare; she describes the oar was running at a very high rate of speed and there were about sixty or more passengers, the oar skidded and finally ran off the track and the baok end of the oar hit the post, throwing her forward, the baok of her head was hurt, she was seated on the right side of the oar in the back and when she recovered she found herself in the front of the oar; she testifies further that Dr. Gelbke was there, she was injured on the left knee, and her left hip and the baok of her head, she suffered severe pains, Dr. Gelbke treated her from the day of the accident until August 9th, whe he discharged her, she went baok to his offloe several times after that, she goes on to describe the pains, her itmmm was bruised, but she suffered more from her side and head, she was laid up about two months, she received á salary of seventy five ,drug mil* dollars a month, she had a/obxxtoxx bill of twenty four dollars; she was.treated subsequently by Dr. Johnson and she says she weAt to hee at his offioe about her bill and he told her she owed him nothing. She xxkaxiti* subsequently went to work but could not get a position back but worked by the hour.

Both Dootors Gelbke and Johnson during the trial of this oase were in oourt frequently and were witnesses of various parties .in this litigation, but neither one of them was oalled to testify in behalf of plaintiff, and the only testimony to be found in this record is her own.

There have been repeated decisions of our Supreme Court end of this Court in just suoh oases as this, and we find that courts do not favor judgments for large amounts unless injuries are far greater than this plaintiff he a sustained have been proven..

As stated, we have only the testimony of plaintiff to be guided by as to the nature of her injuries, loss of time and we are satisfied that the amount she olaims is greatly exaggerated, she is entitled to receive the wages that she lost, §150.00, together with the drug bills she said she paid, §34.00, and in addition thereto we believe that $100.00 would be just and equitable.

Oxendine vs. La. Ky. & Navigation Co. 119 La. 191.

For the reasons assigned it is ordered, adjudged and deoreed that the judgment rendered in favor of plaintiff, Mrs. Olivia Sohlumbreolstand against the West New Orleans Light & Traction Oompany, and the Southern Cotton Oil Oompany, be and the same is hereby amended, and that there now be judgment in favor of plaintiff, Mrs. Olivia Sohlumbreoit and against the West New Orleans Light & Traction Oompany, in the full sum of $374.00, with legal interest from judicial demand, and that the judgment rendered against the Southern Cotton Oil Company be and the seme is hereby annulled and avoided, with oosts of both Courts to be paid by the defendant, the West New Orleans Light & Traction Oompany.

reversed -Judgment/araaxatii in part and-affirmed in part-  