
    No. 11,516.
    P. J. Conway vs. New Orleans & Carrollton Railroad Company.
    Ihaintiff’s wife was not at fault in leaving the oar.
    The evidence proves that she was injured by the negligence of defendant’s employe.
    
      The conductor put the car in motion before the passenger had time to step off, and as a consequence she was thrown, from the step, fell to the ground and was injured; it is negligence for which the defendant company is liable for damages.
    Inability by the principal arises when the servant is acting within the scope of his-employment.
    Plaintiff is entitled to compensatory damages.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.
    
    
      Morris Maries and A. H. Leonard for Plaintiff and Appellee.
    
      John M. Bonner for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued to recover damages sustained by his-wife in a fall from one of defendant’s street cars.

About 6:30 p. M. in the evening of March 20, 1893, she, with her daughter, on their way to her residence, notified the conductor that they wished to leave the car at Third street.

He alleges that the conductor failed to stop at Third, and that she was carried to Burthe street, where the car was stopped that they might leave; that immediately she proceeded to leave and was on the step in the act of getting off, when suddenly and without warning the car was put in motion, and, as a consequence, she was thrown from the step and fell violently to the ground; that she sustained severe injury, which caused pain, suffering and permanent physical disability.

The answer is a general denial.

The case was tried before a jury and a verdict for $1000 was rendered against the defendant. From a final judgment entered upon the verdict, the defendant appeals.

The facts are substantially as follows:

That the car stopped, as alleged, at Burthe instead of Third street, and that plaintiff’s wife was thrown to the ground from the steps while attempting to step down; that her daughter was standing on the platform and saw her mother fall; that she said to the conductor that in the stops he should allow the passengers time to alight; that the car was put in motion without having given these passengers ■time to step’ out and ’leave without injury.-

To this point of the ease the testimony of plaintiff’s witnesses is uncontradicted.

The defendant introduced a witness who testified that no woman fell from the car on the day alleged while he was conductor. He left the car at 6 o’clock, prior to the accident. The conductor who succeeded him in runningthe car was not introduced as a witness.

We therefore have before us, in so far as relates to the fall, only the testimony of plaintiff’s witness.

The attending physician testifies that she called at his office in a suffering condition; that her right hip was severely bruised, and she, in consequence, had high fever and suffered other ills; that he treated her more than three weeks, and that during several months she was unable to work. Most of the time, while under treatment, she was confined to her bed.

That she suffered no permanent injury.

As to the cause of one of her ills the testimony of her physician is contradicted by another physician called in by the defendant as an expert, who did not find any possible connection between that ill and the bruises as described.

BILL OK EXCEPTIONS.

To the ruling of the lower court, permitting evidence as to the number and age of plaintiff’s children to go to the jury, the defendant reserved a bill of exceptions on the ground of irrelevancy.

As partner in community the husband sued for damages in the loss of the services of his,wife to himself and their children. The number of plaintiff’s children may be the cause of more seriously feeling the loss, and in consequence it is admissible in evidence in assessing the quantum of damages.

In any view of the question, it is not of sufficient importance, and has not such bearing upon the issues, as to justify the court to remand the case. Interest repúblicas ut sit finis litium.

On the Merits.

That the plaintiff has a just claim on the defendant company for some damages, is made evident by the unrebutted testimony of the witnesses.

The bruises received by his wife from the fall may not have been as severe as represented; but they, it is proven, were quite painful and forced her to seek medical treatment and remain confined to her bed.

The negligence charged possibly was not as gross as is contended by the plaintiff; the facts remain proven that the cars hastily moved without giving plaintiff’s wife time to step down from the steps, and that she was violently thrown down by the sudden and unexpected movement.

There was no fault shown on the part of the plaintiff’s wife in getting off at the street named.

It was for her to determine at which stop of the car to alight, and for the conductor to offer ample time to leave with safety. There is no testimony whatever before us toward justifying the employés of the defendant’s company. These passengers must have been seen by them, as they were both moving to get off in their presence while the car was stopped.

We do not overlook the fact that, in justice to their fellow passengers who have not arrived at their destination, those leaving should not take up too much time.

There is no complaint on that score made against plaintiff’s wife and her daughter.

The community clamor for rapid transit and corporations generally comply with the public demand in this respect. To this there can be no serious objection as long as the service is safe.

But in all cases, even at the expense of speed, women and children, at any rate, should be given time to alight and not be exposed to accidents.

With reference to the damages, we do not agree with the verdict of the jury as to the amount.

The negligence for which the company is liable is not gross and malicious.

It is nevertheless liable for compensatory damages. In answer to the proposition by counsel that a corporation can not be mulcted in damages for the wilful wrongs of its servants and their illegal and oppressive conduct, we quote from Denver & Rio Grande Railway vs. Harris, 122 U. S. 597: “A corporation is liable civiliter for torts committed by its servants,” though it did not authorize the act, if within the scope of the servant’s employment.

Under the circumstances, the amount is fixed at five hundred dollars, for which amount we find ample support in our jurisprudence. The damages allowed are compensatory.

It is therefore ordered that the judgment appealed from be amended by reducing the amount to five hundred dollars, with legal interest from date of the judgment of the District Court, and that as amended the same be affirmed, appellee paying the costs of appeal.  