
    NO. 8002.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    MARTIN GRADNEY VS N. O. RAILWAY & LIGHT CO, ET AL
   OBXHIOH.

BT hia H0nor John at. Paul.

Plaintiff alleges that Being a passenger on a Tohoupitoulas oar, and Being required to transfer, he alighted and made hia way to a point on the neutral ground at Canal and Tohoupitoulas Streets, where ho intended to Board a Dauphino oar, and whiph was the proper place to do so. That whan a Dauphino oar finally appeared, and just Before it reachod the point where petitioner and others were standing, a Canal Belt oar crossed over in front of said Dauphino oar in order to got on the same track as said Dauphine oar. That in switching over to said track in front of said Dauphino oar, said Canal Belt oar traversed the neutral ground Between tne two tracks, causing plaintiff and the other passengers to recede out of reach thereof. That the fender of said oar, owing to size and oonstruotion and the narrow spaoe Between the traoks at that point, overlapped the track in making the curve; to suoh an extent as to leave insufficient room for a person to stand-in safety when the adjoining track was occupied By a oar coming from the opposite direction. That while plaintiff was attempting to get out of reach of the fender of said Canal Belt oar, a Dauphine oar approached him on said adjoining traok without Signal or other warning of its approach, and Struok plaintiff in the back throwing him to the ground; whereby he was injured, eta.

For answer defendant denies generally the allegations of the petition; denies any fault or negligence on its part; and avers that plaintiff tacked into the track on which the Dauphins car was approaching, at a time when said oar was so close to him that he should have known that it was dangerous to do so; and hence the fault was exclusively that of plaintiff,

I.

A police officer, who saw the accident hut refused to make a statement at the time, tetstifies that he saw the Dauphins car, coming pretty lively, hut it stopped. Shat he then heard the motorman release, the airbrakes; that he saw him going over the intersection, and the overhead switch hlaw off as he did so. Shat the motorman "got up and turned round, and stood up in a little step, laughing and loklng with his conductor; the oar rolling on at a lively rate of spaed.” That he saw plaintiff standing in a curve as the oar shot over the curve and hit plaintiff. That plaintiff was not on the track hut between the tracks, on the neutral ground. That the motorman threw on the overhead switch, and put on the power without looking ahead; and did not look ahead again from thopolnt where the switoh blew out until just before ho struck plaintiff, about 60 or 70 feet. That when he did look forward it was too late; and the oar stopped with the middle about where plaintiff fell. That plaintiff had a companion standing about a toot from him, to whom ha was talking. Plaintiff was not hit by the fender of tha oar, but witness oannot aay whether he was hit by the vestibule post or by the side of the oar, The conductor with whom the motorman was ohatting was at the rear of the oar. That witness was once a motorman In the employ of defendant and left it on good terms. That onoe he quit because he knew ha was going to be discharged for an accident due to his own fault! and onoe ha was discharged for striking a conductor who had delayed his dinner, and for refusing to make report about it.

This witness did not give his testimony in open court; but as the judgment below was for defendant, it is dear that the trial judge (who did hear the other witnesses) did believe him.

Mr. Krumbhar, an architect, took measurements at the scene of the accident. At the place pointed out to him as the spot where plaintiff fell, there is six feet seven inches between the traoks; when two cars make the curve at the same time, one car overlaps two feet six inches and the other just two feet, leaving exactly two feet one inch clear; sufficient, but just sufficient, for a person to stand in safety if he stand quite still.

Offioer^orges did not see the accident; he saw the plaintiff only when he was already down. "The car was about to stop where the plaintiff was lying."

Sam Soott, plaintiffs companion, did not sss him struck; he was standing about a car's length from plaintiff, further from the river and looking the other way. There were six or seven persons standing where they were.

Plaintiff testifies that he was waiting for his oar to arrive; that there was a Canal Belt oar which was in the lead on a parallel track, and when the latter "went •to oome out ahead of her x x we had to step back; and when she swung around the curve, the fender swung ###$# so far over that I had to step back to keejb from getting hit* K'K 2.

(The re were) any quantity of women, children and men, about forty or fifty, standing on the little space of ground, x x x (I was standing) between the two tracks, x x x When the fender made me back, I don't know what happened, x x x the other car struck mo in the left side and laid §§§ me out (unoonscious). x x (My hearing) is not so very good. I cant hear so very good." He was nearest the river of all those who stood there.

The motorman testifies that when he approached the spot where the accident happened, "there was nothing near the track at all.x x x(piaintiff) was standing up there looking between two cars for his car; and when I reached about three feet from him, he made about three steps back and was struck by the vestibule post of my car. x x x I was ringing the Rail, Rut it seemed lilca he did not hear it. x x x I immediately stopped the oar, and he was lying on down, x x (My oar) was going very slow, it was three points. Z Z (Thera weir») two or three other persons standing there, about fifteen feat from him; he was further from (further off f than they?)

II.

It may ha admitted that the conditions testified to by Mr. Krumbhar, show that the place at which plaintiff sought to board his oar is suggestive of a danger to which a carrier ought not voluntarily submit a passenger; but on the other hand the place is not the private property of defendant or under its exclusive control; but it is on a public -street over which the municipal authorities have the sole power to regulate streetscar traffic. Act 159 of 1912, Section 8, paragraph 12; Constitution Art. 48.

Hence the authorities cited by plaintiff have no special application to the case at bar; and it suffices that defendant shpuld operate its cars at that point with a degree of care commensurate with the increased hazard due to such a situation.

Moreover the situation seems by no means so very perilous as plaintiff suggests. For it is shown that a number of people could and did stand there in safety; that the one point of danger As at least a full car length the point at which plaintiff's companion was standing to taka the sama oar as himself.And plaintiff's suggestion that tha plaoa was so crowded as to force him to that one dangerous spot, is not horna out by the testimony of his companion, and seems to oonfliot with that of the two police officers who did, and therefore oould, see him lying on the ground.

May 2nd, 1921.

III.

As it is an undisputed fact that plaintiff backed into the oar, the question therefore is simply this; was the mototman keeping a proper lookout? Bid he sound his bell? Bid he do all he oould to stop his oar when he saw plaintiff backing into it?

As to this we have only the testimony of the first polios officer and of the motorman; who flatly contradict# each other. And the trial judge who heard the motorman believed him.

Wo cannot say that the trial judge erred; for the motorman's testimony that plaintiff seemed not to hear the bell finds corroboration in the fact that plaintiff's hearing is not good; and the promptness with which he stopped his oar shows that he was attending to his duties.

The judgment appealed from seems to us correct, and accordingly;

Judgment Affirmed.

New Orleans La,  