
    No. 1252.
    James A. Reynolds et al. vs. The Texas and Pacific Railway Company.
    Bail way carriers are bound to furnish safe mode3 of passage between their depots and their trains, and at stations where trains pass at night theyare bound to furnish proper and sufficient lights to make the way reasonably safe.
    Por inj arios resulting from non-performance of these duties they are responsible.
    When the negligence of the carrier is established, and is of a character greatly to multiply the chances of the accident which happened, and naturally leading to its occurrence, and when the evidence tends to connect the accident with the negligence, the mere possibility that the accident might have happened even without the negligence will relieve. Courts, in such matters, consider the natural and ordinary connection of events, and will not indulge in fanciful suppositions.
    APPEAL from the Thirteenth District Court, Parish, of St. Landry. Hudspeth, J.
    
      Lewis & Bro. and W. S. Frasee for Plaintiffs and Appellees:
    It is the duty of railway companies to keep in a safe condition their premises, depots and approaches from thence to their passenger cars. Pierce on Bail ways, pp. 275-6.
    The law implies in the contract of carrying passengers by railroad companies that they shall provide safe and convenient egress and regress from the -lines of their road. Digress of American Law Register, p. 786, No. 4.
    It is the duty of such companies to keep tlieir depot, platforms and approaches from their passenger trains lighted up at night. Wharton on Negligence, pp. 654 and 652; 34 A. p. 777.
    It is gross negligence in a railway company to suffer its passengers to grope their way in the dark from its depot to its passenger train over a crooked and unsafe passageway.
    Our courts have authority te award exemplary damages agaiust railway companies for gross negligence resulting in wounding and maiming a passenger, especially where such nogligeuce is attributable directly to the company. 10 A. p. 34; same vol. p. 88.
    The husband, for an injury inflicted on his wife, can sue for loss of her services to himself and'his minor children, as well as tlio damages inflicted upon her. 10 A. p. 33.
    
      Moseley & Foster for Defendant and Appellant:
    A plaintiff in a case of damages ex delicto must make his case certain; a probable case will not satisfy the exigency of the law. XU A. 121; 15 A. 105; 16 A. 151; 21 A, 185. ..
    
      The negligence must be affirmatively proven. 15 A. 115; 27 A. 229; 11 A. 292 ¡ 23 A. 726; 18 L. 340; 35 A. 695 and 498; Wharton on Negligence, § 360, 871-2 and S99; Pierce on Railroads, 423; Thompson on Negligence, vol. 1, p. 512, § 15.
    Apla'ntiff cannot recover for an injury which was purely accidental, and not shown to have been caused by any fault on the part of another.
    A plaintiff who has contributed to an injury cannot recover, even if ho succeeds in proving fault on the part of another. The rule of law in Louisiana is that where both, are at fault neither can recover. 30 A. 15; 31 A, 490; 32 A. 615; 33 A. 154 ; 5 Otto 697; 18 L. ‘ 339 ; 3 A. 48 and 441; 6 A. 496 ; 11 A. 292 ; 23 A. 462; 23 A. 53; 36 A. 751; 28 A. 320 ; 9 A. 441.
    Field on Damages, § 126 to 131, inclusive.
    One must protect himself when he can. 23 A. 264 ; 30 A. 15.
    No recovery can be had by one who knew of the alleged cause of tlie injury, and who could have avoided it and did not do so. 34 A. 180 ; 33 A. 155; 5 Otto 441; 6 McLean 242 ; 34 A. 1086.
    Positive testimony must prevail over negative testimony. 33 A, 800; 26 A. —; 2 A. 1008 ; 37 A., case'of Benjamin S Storey vs. Hope Insurance Co. (unreported).
    No one should be allowed to increase by his own misconduct the amount of damages resulting from an injury for which he seeks to hold anothor responsible. 35 A. 1132; Sedgwiok 170.
    •There can be no recovery where 'there is an intervening cause, and where the imputed negligence was not the immediate and proximate cause. Field on Damages, sees. 9, 10, 11, 45 to 53 inclusive, and- appendix, p. 705; American and English Railway Cases, vol. 10, pp. 740 and 752; 35 A. 641; American Law Register, vol. 33, No. 9, p. 604; 2 A. 144 ; 34 A. 180.
    If there is a reasonable doubt as to tbe cause of an injury, tbe boneflt of tbe doubt will be given to tbe defendant, if his trade is a lawful one. Wood’s Law of Nuisances, sec. 472 , 35 A. 648.
    
      Keunard, Howe & Prentiss on same side:
    1. Plaintiff, in a cáse of damages ex delicto, must make his case certain; a probable case willnot satisfy tbe exigency of the law. 16 An. 121; 15 An. 105; 35 An. 498 and 694.
    2. Tbe burden of proof is on tbe plaintiff to show tbe defendant company’s negligence whenever its liability for an injury depends on its nogligenco, and tbe negligence muob be affirmatively proven. Thompson on Negligence, vol. 1, p. 512, seo. 15; Pierce on Railroads, p. 423 ; Wharton on Negligence, secs. 860,871-2,899; Pleytas vs, Pontoliartrain Railroad, 18 L. 340 ; Klein vs. Railroad Company, 23 An. 726 ; Perkins & Billiu vs. Morgan, 27 Ann. 229; Knight vs, Opelousas Railway Case, 15 Ann. 115; Hill vs. Opelousas, 11 Ann. 292; 35 Adu. 694 ; 30 Ann. 244.
    3. Proof that the injury was sustained is not prima facie evidence of negligence, and does not establish a charge of negligence against oho person causing the injury. See Slier, man on Negligence, sec. 5; Hammock vs. White, 11 C. B. N, S. 588.
    4. Tlie negligence complained of must have been the immediate cause of the injury sustained by plaintiff.
    5. Negligence is tbe failure to do what a reasonable and prudent person would ordinarily have done under tbe circumstances, or doing what such person under the existing cir - cumstances would not have done. 95 U, S. Reports, p. 441, R. R. Co. vs. Jones.
    6. The degree of care which the law expects, and the omission of. which is negligence, is that degree which men of ordinary prudence would exercise in a given situation. *
    7. When circumstances point just as much to negligence on the part of one of the parties as to its absence, or points in neither direction, a recovery cannot be had. See 31 Ann, 490 3 Ann. 48, 441. ’ ’
    
      8. Plaintiff cannot recover for an injury resulting from tlie negligence of the defendant if, notwithstanding such negligence, he might have avoided the injury by the exercise of care and prudence on liU part, or if his own want of such care and prudence, or that of the party injured, contributed to the injury. Am. Law Register, vol, 5, No. 5, p. 397; Redfield^on Railways, p. 337.
    9. There is abundant proof in the record that plaintiff was guilty of the grossest negli gence.
    10. An intervening agency of sufficient force and power of itself to have caused theinjury, and occurring between the first causo and the result, is considered in law as the prox - imate cause of the injury, whilo the first cause is the remote; aud plaintiff cannot recover when lie declares on the first as the proximate cause, and it is shown not to bo. See 7 Wallace 52 ; American Law Register, vol. 23, p. 604.
    22. When two witnesses, unimpeached, contradict each other, the presumption is in favor of the one who swears affirmatively. H. D. p. 557 (d), 1] No. 12; 2 Ann. 1008 (bottom of pago); 23 Ann. 800; Pierce on Railroads, 292 (bottom of page and note).
    11. The allegata must correspond to the probata, and when witnesses contradict each other as to when, whore and Iiow the accident occurred, their testimony is to be taken with some allowances, and such inconsistencies affect their credibility.
    13. The positive and affirmative testimony of one witness having no interest in a suit, supported by corroborating testimony and circumstancos, is entitled to more weight and consideration than that of several who contradict each other on a material fact which they are introduced to prove.
    14. Exemplary damages are only allowed when malice, fraud and grossest negligence are patent and proven. Sedgwick on Damages,
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff aud his wife claim damages of tlie defendant company for injuries suffered hy the wife aud caused by the alleged negligence of the company.

Mr, Reynolds, with his wife, sister-in-law, three small children aud two colored attendants, had purchased tickets as passengers on the defendant road, and were at the depot at Morrogh Station for the purpose of boarding the east-bound train, which was duo at that station at about midnight, but, being-behind time, did not reach there till about two o’clock in the morning.

Between the depot and the regular track on which the passenger train arrived there was a switch-track, which, on the night in question, was occupied by a freight train, and, by uncoupling'Ahe latter, a passage way was opened to the passenger cars.

The mode of getting from the depot to tlie cars was as follows: passengers went down a stairway of several steps, which ran parallel to the track and led to a lower platform ; on reaching which they turned squarely’ to the right and passed between tlie uncoupled cars to tbe train. These steps were unprotected by railing, and on tbe left of tliem tliere was a ditch. The platform at the bottom extende d five feet towards the front, and beyond it there was a slope running to the bottom of a ditch. If, in descending, the passenger wont too far to the left, he tumbled into a ditch ; if ho did not turn promptly to the right on reaching the bottom and went too far forward, lie fell down the slope in front; and if ho stumbled in going down the stairs his impetus was likely to carry him over the narrow platform in front and down the slope beyond.

It is obvious that, while such a passage might fulfill all customary and reasonable requirements of safety in the daytime, or when well lighted, yet at night, and when not sufficiently lighted up, it undoubtedly exposed passengers unfamiliar with it to danger of fall and injury. Although both the east and west-bound trains customarily stopped at this station in the night-time, no stationary lights were provided for the depot platform or the steps. There was no moon on this night. The lights of the engine and passenger coaches were intercepted by the intervening freight cars, except such as might have passed through the opening above referred to, which we are satisfied was of no value. The lights in the rooms of the station could have shed no light on the bottom of the steps. There is much conflict of testimony touching the presence and position of a conductor and brakeman with lanterns, which we need not discuss. After an attentive study of the evidence, we clearly concur in the conclusion of the district judge that there was no sufficient light; that its absence rendered this passage from the depot to the train insecure, and constituted negligence in the company and a failure to perform its duty of providing safe modes of ingress and egress between its depots and its trains. We are impressed by the judicious comments of the judge on the conflicts in the evidence, viz : “ There are here, as there will always be, contradictions and discrepancies amongst witnesses in all such cases, so long as stationary lights are not provided, and so long as this mode of providing lights for passengers boarding or leaving the cars is adhered to. What is sufficient for purposes of ingress and egress from cars, until stationary fixed lights are provided, will ever bo a matter dependent on the discretion of conductors, brakemen and other employees, liable to be varied by every change made in these employees. * * * Even granting there were lanterns or lamps held by employees, a change of position of afew feet, even a step or two, would suffice to leave positions in darkness one minute which were in light the next, and vice versa.'1'1

The train was behind time. Several witnesses testify that passengers were warned to “hurry up.” Mrs. Reynolds, a corpulent woman, weighing two hundred and fifty pounds, emerging from the bright light of the sitting-room, which naturally exaggerated the outside darkness, and hastening down these unligiited steps, made a misstep in some way and was precipitated beyond the narrow platform in front and down the slope beyond, incurring- the serious injuries complained of.

Upon what grounds do the company claim exemption from liability 9

1st. It denies the fact of negligence on its part, and contends that the way was safe and the lights sufficient.

We have already disposed of this contention, and have found that the light was insufficient and that this rendered the way insecure. The duty of railway carriers to provide safe modes of egress and ingress to and from their cars, and to provide sufficient lights at their stations where passengers take or leave their trains at night, is well established by authority, and has been recently expounded and enforced by ourselves. Peniston vs. R. R. Co., 34 Ann. 777; Turner vs. R. R. Co., 37 Ann.; Lehman vs. R. R. Co., 37 Ann.; Wharton on Negligence, § 654, 652 and authorities there cited.

2nd. It contends that, oven conceding the negligence of the company in the above respect, it does not follow that the accident to plaintiff was necessarily caused thereby, but that she might well have made the misstep and fallen even had it been broad daylight. We concede that this is possible, and recognize the distinction between post hoc and propter hoe. But where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, 'and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Courts, in such matters, consider the natural and ordinary course of events, and do not indulge in fanciful suppositions. The whole tendency of the evidence connects the accident with the negligence.

3rd. It is claimed that there was contributory negligence on the part of the husband in leaving his wife to grope her way unattended by himself. The evidence satisfies us that Reynolds’ absence was due to another fault of defendant’s station agent in requiring- him to assist in putting his own baggage on the cars, because some of the employees^ whose duty it was, were absent. But aside from this, his wife, though a corpulent, was not an infirm woman, and was fully capable of taking care of herself. We have considered the case in all its bearings, and find no reason to doubt the correctness of the district judge’s conclusion holding defendant liable.

As to tlie quantum of damages, tlie injury consisted in a dislocation of tlie ankle and a fracture of tlioleg below tlie knee. There resulted no loss of the limb. The evidence shows that, notwithstanding the accident, she went on the cars and continued without interruption her long railroad journey to Florida, without availing herself of medical attention, and that, even after arrival there, she received but trifling medical aid. These facts impressed the district judge as they do ourselves. No doubt she suffered greatly, and perhaps she has not yet fully recovered j but how much her suffering and the effects of her injury may have been increased and prolonged by this unusually imprudent conduct it is impossible to say.

The judge allowed her two thousand dollars as damages, and we will not disturb his finding.

Sundry bills of exception were reserved to rulings of the judge on reception or rejection of the evidence. We have considered them all, and find no merit in any of them.

Judgment affirmed.  