
    No. 3130.
    William H. Johnson v. Canal and Claiborne Railroad Company.
    It is true that the allegata and the probata must agree, hut it is sufficient if the substance of the issue be proved. The real substance in this case is not where the plaintiff was, to a mathematical precision, when he was injured; but first, whether he did suffer, and secondly, whether, if he suffered, it was from the fault of the defendant.
    But where the conduct of the plaintiff has been negligent and has contributed to the injury received, he can not recover, even though the defendant be in fault, and such is the fact in this instance. The damage done to plaintiff was in part the result of his own carelessness. He can not therefore, make the railroad company responsible for a disaster which he brought to some extent upon himself.
    APPEAL from the Seventh District Court, parish of Orleans. J.
    
    
      Oollens, J. Jury trial. John U. Kennard, for plaintiff and appellee.
    
      M. D. Ogden, for defendant and appellant.
   • MORGAN J.

The petitioner alleges that on the night of the twelfth of November, 1869, between the hours of ten and eleven, at a point on Canal street, between Baronne and Carondelet, while exercising his privilege as a citizen, of walking the streets, proceeding on foot down the sidewalk of the neutral ground on Canal street, on the right hand side of said neutral ground, and going towards the Mississippi river from the direction of Baronne street, he was knocked down, run over, and had one of his legs so terribly crushed by car No. 18, belonging to the Canal and Claiborne street Railroad Company, drawn by one of the company’s mules, and driven by an agent and employe of said company, that it was necessary to have his leg amputated, and he was thereby made a cripple for life.

On the trial the plaintiff, when examined as a witness, said that when the defendant’s car ran over him he was walking on the track of the railroad. His testimony was objected to on the ground that it did not correspond with the allegation in his petition, which was that when the accident happened he was proceeding down the walk of the ueutral ground on Canal street. It is true that the allegata and the probata must agree. Bat we understand that it is sufficient if the substance of the issue be proved. Now the real substance of the issue in this ease is not, to a mathematical precision, where the plaintiff was when the terrible calamity of which he is the victim overtook him, but first, whether he did suffer, and second, whether if he suffered it was from the fault of the defendant. We think the testimony was properly received. As to the first point, we think it fully established that the defendants’ car did the deed. As to the second point. The general propositions that every person is responsible for the damage he occasions, not merely by his act, but by his negligence, imprudence, or want of skill; that we are responsible not only for the damage occasioned by our own act, but for that which is caused by the acts of persons for whom we are answerable, or of the things which we have the custody, is not disputed. Neither can it be denied that a railroad company is responsible for the damages caused by its servants. They have been constantly made to pay the injuries which they have occasioned, where the injuries have been the result of carelessness or bad management of their servants.

But where the conduct of the plaintiff has been negligent and has contributed to the disaster, he can not recover, even though the defendant be in fault. This is the language of this court in the case of Knight v. Pontchartrain Railroad Company, 23 An. 462, in which this whole doctrine was considered and where all the authorities which could be found upon the subject are referred to. We are satisfied that that case was properly decided, and our inquiries must now be directed to the question of negligence on the part of the plaintiff.

In tlie centre of Canal street, on what is known as the neutral ground, there are four railroad tracks; two belonging to the City Railroad, and two belonging to the defendants. Those belonging to the defendants run near the edge of the neutral ground, those belonging to the City Railroad, in the center. Both lines of road traverse a thickly settled portion of the city, and their respective cars are almost constantly going and coming. The space between the side of the neutral ground and the defendants’ track is narrow. The space between the different tracks is limited. The starting point for the City Railroad cars is between Carondelet and St. Charles streets. The defendants’ cars cross St. Charles street and go towards the levee.

The plaintiff’s residence is iu the lower part of the city. To reach there he uses the City Railroad cars. At about half past ten o’clock of the night of the twelfth of November, 1869, he came down Baronne street to take the Bayou road cars. These cars start from a point between St. Charles and Carondelet streets. Under these circumstances what would have been the course of a prudent man 1 He would have waited on the corner of Canal and Baronne for his car. Or, if he wished to take the car at its point of departure, he would have gone up Canal street on the upper side until he got opposite his car, and then crossed the street. Instead of this he crossed Canal street one square and a half below the point where he wished to take the car, and up the neutral ground. Even here if he had walked on the flagging which intervenes between the railroad track and the street proper he could have done so with comparative safety. But, from his own evidence, he was walking on the track itself when the disaster occurred to him. Two roads were open to him. One, absolutely free from risk of any kind; the other, full of danger. He chose the latter, and no matter how much we may regret the circumstance of his calamity, we feel constrained to say that- it was in part the result of his own carelessness. He can not therefore make the railroad company responsible for a disaster which he brought to some extent upon himself.

This opinion does not in any manner clash with the decision in Barksdall’s case 23 An. 180. There the child was run over while endeavoring to cross St. Charles street on the upper crossing of St. Mary street. He was then in the proper place and pursuing the route which was the only one lie could safely have taken. He did not, therefore, contribute to the negligence which caused him to suffer. It was the driver of the car who was alone to blame for the accident.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Taliaferro, J.,

dissenting. The inquiry in this case is simply: could the accident have been prevented by the exercise of that degree -of attention and care by the car driver which it was Iris duty to exercise in order to avoid accidents ? What is a car driver required to go at a moderate speed for, if it is not to avoid accidents'? What is he re■quired to be circumspect in driving for, if it is not to avoid running over people ? Why is he required to be constantly on the alert while moving, to look ahead and around, if it be not that he may-go along with safety among the thousands of persons constantly on the streets ? Now, these are the obligations he is under, and if he does not fulfill ■them he fails in his duties to the public and to his employers. I imagine there is no more common thing than that of accidents being prevented by the vigilance and skill of car drivers slackening their speed or stopping their cars, on occasion when there is danger of collision with other vehicles or of running over a person. Such prevention of accidents I doubt not, happens daily. The evidence is perfectly satisfactory to ane, that if the car driver in this case had been doing his duty, this accident might certainly have been prevented; that Johnson’s being on the track did by no means render the accident inevitable. Grant that' he was imprudent in being on the track, still, it is clearly shown by proof, that if the car driver had been doing his duty, he might easily have avoided running over the man. One witness says that at the point where this accident happened, it was light enough to see to pick ■up a pin. The witness Martin, sitting near in his cab, and viewing the scene distinctly, is positive in his statement that if the car driver had been driving as he ought to have done, he might have avoided running over him/ This witness swears that at the time of the disaster, the car driver was talking with a man standing in the car near the ■door. He was driving at an unusual speed. One witness thought at about the rate of ten miles an hour. A policeman who pursued the car after tile accident, in order to identify it, saw more of his reckless driving. The policeman swears that the car driver made no stop whatever npon the happening of the accident, but went rapidly on and was near running over two other persons on the course at the Clay statue. It is clear to me from the evidence that this driver is an ignorant and stolid man of a reckless character, having no experience in the business he was engaged in, when he ran the car over Johnson. He was introduced as a witness on behalf of the defendants, but with little advantage to them.' It was drawn out of him on cross examination that the defendants had discharged him subsequently to this accident, on account of a collision between the car he drove and a steam car, and he admitted he was in fault for the happening of the collision. If then, under ordinary prudence and care, and by bestowing the attention upon his business that his duty required; if he had been driving at a moderate and safe speed, and looking forward and around him instead of being engaged in conversation with the young man standing at the door near him, he might without any difficulty have avoided running over the plaintiff. How stands the matter ? Here an accident occurred which the car driver had it entirely in his own power to prevent, and yet he did not prevent it. No co-operative act on the part of the plaintiff was necessary to enable the car driver to obviate the accident. There was clearly then in this case, no contributory negligence. All the facts in this case place it in that class of cases defined by this court, in 23 An. 464 (Knight v. Pontehartrain Railroad Company) under the second head as follows : “Where the conduct of the plaintiff has been imprudent or negligent, but such imprudence or negligence has not contributed to the accident. In such case the plaintiff may recover from a defendant in fault.” Can a person be said to have contributed to an accident unless by his own act he has placed it out of the power of the other party to prevent it when this other party might, otherwise have done it ? Take the case at bar, and suppose the facts in regard to the victim to have been different from what they are shown to be. Suppose the driver, going as he was, at an unusual and unwarrantable speed, reckless of accidents, and Johnson had rushed rapidly upon the track directly ahead of the mule and car so that the driver could not if he had aimed to do it, prevent his being killed or crippled and we have a case of contributive negligence. Many cases of what is termed contributive negligence occur. Par the greater number that appear in our reports belong to this class. But the facts of the case at bar are far different from those presented in any of the cases of thatclass. Johnson, it is shown, was sufficiently far in advance of the car, for a driver of ordinary prudence and care going at the customary speed, to have stopped his car before reaching him and thus have prevented the accident. It is a case in my opinion coming distinctly under the second class of cases as defined in Knight’s case, 23 An. 464, viz: that although a party may have been imprudent or negligent, yet, where by his negligence or imprudence he has not contributed to the accident he may recover from a party- in fault.

In this case it was entirely at the volition of the driver to run over the man or not. Having done so, he and his employers should be responsible for the consequences.

I think the plaintiff should recover damages.

Wyly, J.,

dissenting. I concur in the dissenting opinion of Mr. Justice Taliaferro.

Rehearing refused.  