
    NO. 8536
    COURT OF APPEAL PARISH OF ORLEANS
    DANIEL CARTER versus NEW ORLEANS RAILWAY & LIGHT CO. and NATIONAL SURETY COMPANY.
   Dinkelspiel; J.

Plaintiff institutes this suit against the defendants, alleging that he was a passenger on a Louisiana Avenue oar, end having paid his fare to his destination, he was entitled to be carefully carried and set down at the place where he Intended to alight; he alleges -further that when said oar reaohed Canal end St. Charles Streets and oame to a stop he oame on the rear platform of said oar and was about to step down when the oar started off, throwing his hip against the steps of the oar, from which he sustained a óoáminuted fracture of the hip bone, and the defendant company violated its contract of xslxL transportation.

The answer of the Railway Company admitted that plaintiff was á passenger, as o-llegeA by.him in his petition; but plaintiff avers that whatever injuries the/«»i£xp**wx» may have reoelved, be brought setae upon himself by his oarelessness, negligence.. and imprudent oonduot in alighting from the moving oar under oiroumsta: then existing end if injured he Is without right to reoover for the injuries by .him sustained, because -of his own fault and therefore prays for a judgment in its favor.

The Rational Surety Company, made one of the defend- ■ a.nts in this case, denies all the allegations of plaintiff s ' petition; admits th’.-t it was a surety for the sum of ISOOO.OO, • but affirms and adopts for ito further answer, the facts as alleged by the Railway Company, in its proper defense and aslcs for judgment.

There was a trial in this case by jury, nine. of. whoa found a- verdict in favor of plaintiff, -in the sum of Jive Thous-' ’and Dollars; henos -this appeal.

A careful examination of all the testimoay in this • case satisfies us that plaintiff was a passenger on a Louisiana Avenue oar on the date mentioned in hi? ..petition, October 26th^-:" 1920, when the oar reached, as he-thought^ StV' Gharles and .Canal' Stréets, át which piaos hewanted. -to,;allght»’■

He testifies that the oar stopped there and as he r- ..is out of the oor and before he got a ohanoe to rea.oh the ground sufficiently, the oar started off and he lost hie balones end fell; he further testifies that when he asme out of the i or th t the conductor was on the inside writing in a book,and as plaintiff was about to step on the steps, the oar took a sudden lurch and threw him on his hip and orushed it, and he further testifies that the oar had stoppedj-end he esme out of the o?r, passing right by the oondnotor, and the oonduotor he was about to step down on the steps wheiyi® rang the bell and that the starting of the oar threw him out and he fell on his hip and hit his hip on the steps, not giving him a oh-, nee to reach the ground before the bell rang; he described his injuries, his sufferings, the attentions paid to him by his-plr'sicians, rhe time tlv:t he lost from his work, the amount of wages he was earning per week,and at the time of the trial of this case he was still suffering and unable to work.

The testimony of Chris Bates, after describing the crowd of people, th-1 he sow, he saw a men on the floor, just " s the c-.r was fixing to cross and the osr had stopped and he s■■it the oar o rein pull off and that somebody fell and he would h’-ve gone to plaintiff's rescue if he hsd recognized him, he fell from the back platform and after the o?r had pulled off and stopped age in; this was right across the crossing, at St. Charles Street and just '13 the osr pulled a-cross the treok it stopped, he testifies further that at the time he did not know that plaintiff was Injured or that he knew who he was; subsequently met his wife -whom he had known for a long time acmdsta and when she informed him the.táhe was going to the hospital and he inquired why, she said that her husband got hurt by a fall from a oar at St. Charles and Ce-nal' .Street^end after some other conversation, he informed the women that he was standing at the oar the time the accident happened, hut he did not knoYt th:.t his friend Carter hud been hurt ,-nd th:t he knew .otherwise all e,bout the affair.

Q. How just describe how the accident happened?
A. Well it hadbeen drizzling rain^nd it was awful sloppy, when the oar-neared St. Charles StreetTwe were going very slow ^and the man stepped off the. oar, and when he did^ he looked like he made a step and fell on the ground on one leg, and then of course we went to the corner, about thirty feet, end stopped, and he did not get up and I went back and picked him up, and he said: nI must have broke my leg” and then the motorman came out and helped me carry him on the oar, and we took him on the hack of the oar and subsequently me ambulance came and carried him, doubtless to the hospital.
Q. Had you given the signal for the oar to stop at that corner or is it customary for it to stop without a signal?
A. It is customary to stop without signals on the near aide of the crossing.
Q. When did you give the signal for the car to go ahead?
A. After we got him on.
Q.. Did you give any signal for the oar to go ahead as he was getting off?
A. Ho sir.
Q. And was the oar moving or stopped when he got off?
A. The oar was moving.
Edward Suhring, a witness for the defendant, fifty two years of age, head foreman for the Algiers Saw Mill.
Q. On October 38th, 1930, somewhere around six o'clock in the morning, an scoident ocourred at Oanal and St. Charles Streets, when a oolo’red man. getting-off & Louisiana Avenue oar fell and got injured; were you there?
A. I was standing at the'corner waiting for that Sar.-
Q. Did you see the accident happen?

In behalf of the defendant, the oonductor, of the oar, who had been in the service for thirteen years p-nd who was conductor at the time this accident occurred, which was on the 36th of October, 1930, was asked the question:

' Á. I saw him fall, yes'sir. 'I was standing by the ■post just where tlie oex makes the usual stop, and this man got off the oar about twenty feet before the oar came to a stop X would judge, what "I mean four lines of pavement and that measures'about five feet, the car was rolling when'he jumped off the car, arid he'fell and his. leg went'under him,, and the conductor helped him, on the' car and went tp Canal and the river - and I, went on., . Witness goes o.n to testify that he was on the same-oar-th»t the, man was taken .out of.
Q. .Do you know how long the cs,r was deta-inéd there until ' the conductor gave the bell to "go ahead again?
A.' I do not remember, I do not think it would be longer, then sever, ór .eight Minute's.;

Louis Mason, forty three years of age, working for the GOrona- Coal .-Company for twentyyears:.-,

Q. In 1930, on October 66th, there was an accident that happened-at the oomer of Canal and St... Charlee. Strests, when a colored man fell while gettingyoffa car and was hurt.-Were you there?
A. I was... I was .'standingvwaiting. 'for .a Louisiana Avenue car and. when. it got. within, twenty- feet of the. corner-I eaw the man jump" off the easy' it was, a colored man and that' happened about-'in front .of the'Stevens' Store. . ,

I. was right there ..at ..the time, a little from the stop-ping .point end ss-th.e oaf-stopped I jumped on the oar*--

Q. Did you .go. back- t.o where the .men- had fallen*
A. Wo sir. - I did not know'that he was hurt, ;! saw him - on the pavement. .
Q. How many stops did that ogw make?
.. , A..-Thetas nver oame-to 'sny.arfcop'but one'that-I know of.'-

J. A. Knight, forty four-years of age, was employed by the defendant, the Hew Orleans Railway & Light Company and has been so employed, as a motormau, since December, 1899.

Q. On October 26th, 1920, sometime in the early morning, at the corner of St. Charles and Canal, a Colored man. fell from a Louisiana Avenue Car when.getting down?
A. Yes sir.
Q. Were you the motorman of that car?
A. Yes sir.
Q. Who was the conductor?
A. Noonan.
Q. I believe that you turn into-Canal Street at Rampart?
A. Yes sir.
Q. And coming from Rampart to St. Charles Street your car uses what track?
A. The outside track, the same track as the St. Charles and Tulane Belts.
Q. As you approached St. Charles Street on that morning how were you running?
A. Setting up to the corner we stopped as usual, it is the regular stopping place.
Q. Where did you atop your car?
A. At the usual stop at St. Charles and Canal.
Q.How long did you stop there?
A. I stopped and I thought it was an unusual length of time and I said what is the matter and I looked out end I saw the conductor back a few feet, I do not know, how far it. was -behind the oar picking a man up-and I jumped off and-went -to heip.'hlm■ pi.ok up t£e man end we put him on the oar and bar-ried-him to'the. river.'

He did not sees the accident, it happened on the back end of the car and he was on the front end, got no signal to stop, didn't require any for it was the regular stopping place, got no signal to go ahead and got no signal at all until they had picked up the man and put him on the car.

A review of .the. testimony in this case firmly impresses the facts’ on our mind, -s.'s -testified to both by disinterested witnesses, portions of -whose! testimony we have put in this reoord, also-the testimony of .the. motorman 'and conductor, that plaintiff in alighting from'.the moving bar at the time’he. did on-a wet morning, the oar not having come to a,stop,-but still in motion, fell and received the serious injury, of whioh he complains. Had’he-waited until the car would have obme: to a stop, he opuld hs,ve avoided'the accident, -dohbtless, and henoe cannot reoover from the .'defendantf,■ damages'’as claimed by hip, he being-wholly and'solely at ffeult".

The burden of- proof rests with plaintiff to make . his case oertain and -this has been so frequently decided that it rdquires.-no citation of authorities' in support of this proposition, end whilst it is true, as stated in brief of plaintiff’’s,.cour¡sel-, "A common carrier'is bound to exercise the strictest diligence-in receiving’a passenger, conveying him to his. destination, and’-setting-hi.m down-safely, and the .’ burden of proof 1h on the oarrier to show by a-preponderanoe „. Of evidence, whst negligence, and whose, .prevented the fula ■, fillment of the contract. ”■ Referring to. LeBlano vs. Sweet, 10? ’La. 355} Y/e.sxe convinced that .both propositions are well . stated end the law oorrect,'but.we are.also further satisfied that defendant has ms,intained.,-.bbth the fact that it exercised diligtoce in conveying the.passenger to-his destination and carried: him safely to that. placei biit that plaintiff himself in. his haste .to get,- AxtádcÍBuac ,to hds'work, took-upon himself, ’.the'risk’-whilst the osx’wñe in' motion, to jump from the moving es.r and ’fjéll, .'receiving the-'’injuries that he complains of, for -'whioh ’under no clroumstsnoe’s, defendant .oan'bb!held responsible;

Mumphrey vs. Planters Ferterlizer Co. 6 Or. App, 131,

A person cannot reccv-.r for v.n injury to ¿hi ah hs hr: a contributed by hia own ;<■ nfr cf rri-iu-ry err?.

110 La. p. 19 p. 23, ''.cliicb cl - X. 0. R. Also S'-s 5th 1- . Eiv:-;t g- = 53X-33 ' :il nu,..'rcuv o-s-; there oitsi.

In this c-’-se, on motion for new bri'1 • nd r-fu>?l thereof by the Is rne-i Juiga of tbs C;ort 'quo, hia .r ■ a'ns .for rsfus:l of í- nsw tri 1 re .iv?n in full:

"?1 intiff -lleg? i th t vx he ■/ s ■'•■nt tc -'light from o -r, She c¡ ."nductcr :ign. 11--.1 th-. u.,.-t..-r.... n, -.-ho suddenly bt.rtsd th:. c r, "nd he ■./ s Slur ohro.vn to ths ground vicienbly ni sust-in-si j..ri.u. n;-. riys.
"Eif sni nt si i::.£ -;h t .1 inciff •; samp tad tc jut. ■ from the o-r before it c us t, ni raooiv X his -. licgsd injurias in th-t m-nn-sp. Th-t he .■• - .-.ri: ..-.j.y ■ nd , infully injured -. nd ori .• led ir, undis_,utsl,
"PI; intiff vnd v-nother c"lored n, -/ho w a stv-nllng acide -.Hat nee y, re the only v/itne-• o ■■ t •.tXfying to the f-'-vts illsgs-d in this petition. They .-re fl tly oentr dieted by the testimony of two men who were w. iting t the orcs-sing to bo-rd the o- r n-1 who testified tint ul: intif? jump ad from, th- moving w^r -t - dist'-r.os cf some '-hirty f'-sb frem th'?- „<oint f.t vhioh ths o-r'stopped, being ths usu 1 /to ¿ping plies, “nd in so jumping fell.
"These two witnarass v/srs ra-'ub bl; buai:8-.-a ...en of Hew Orl«;• ns, entirely without intar-.-st in ths outcome cf the suit ■ nd unimps;.ch?d. They corrc-bcr ■ ta ths an tament of the conductor end the './ic-tcr/.. n is to the f at- of ths cacurrónos, r.d giving their -caatimony the weight to ./hieh I think it 1/ rntitl-sd, in my opinion the wf-.-ponsUr nqs cf evidence is with defend- nt.
"H-d ths o.íí bXs-jn tried before me without - jury X should hc.ve rejected ¡l> intiff .v dsn-nd, but in ord.-r th-t litig-tion Kay be finally terminated, the motion for a new trial will be refused.
"(Signed) C. Reid, Judge."

we oonour in the reasons given by the Judge in refusing the new tri:1 end the ame now before us, being on sp19' 1, the qus'-’ticn z.t issue lus been finally, settled in favor of the def3r.cl-nt3.

Fox the reasons áiíigned, it i3 ordered, adjudged nd decreed, Sh t the judgment be reversed «-nd that there now be judgment in f• ver cf the defendants, plaintiff's suit dismissed -t his costs in both courts.

-Judgment reversed and suit dismissed-  