
    (59 South. 26.)
    No. 19,008.
    FITZGERALD v. NEW ORLEANS RY. & LIGHT CO.
    (June 13, 1912.
    Rehearing Denied June 29, 1912.)
    
      (Syllabus by Editorial Staff.)
    
    Street Railroads (§ 93*) — Derailment—Negligence.
    Where a street railroad car being operated at ordinary speed was derailed by a rock on the track, which the motorman did not see because of a shadow from an overhanging electric street lamp, and after derailment ran into a shed on the corner, and injured plaintiff, who was in -the shed, the facts did not establish actionable negligence.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*]
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Action by Lizzie Fitzgerald against the New Orleans Railway & Light Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and suit dismissed.
    Dart, Kernan & Dart, for appellant. F. B. Davenport, for appellee.
   PROYOSTY, J.

One of the electric cars of the defendant company, going at full speed down Chippewa street, left the track at the intersection of Philip street, and ran into a corner grocery shed, and demolished it. A little girl, who was seated on the doorstep under the shed, was struck by some piece of the débris, and her mother brings this suit for the injury, charging that it occurred through the negligence of the defendant company in running the car at excessive speed — beyond the rate fixed by the city ordinances. Although the little girl was made unconscious, her injuries were but slight, and none of a permanent character. She had two bumps on the back of the head, and some scratches and bruises on her arms and sides. The derailment is not to be accounted for, unless the statement of the motorman, that there was a cobblestone upon the track, is accepted; for the course was straight, and no defect existed in either track or ear, and the speed was not greater than usual, or beyond city regulation. The strange thing is that no one but the motorman saw this cobblestone. But his statement as to its presence is made plausible by the fact that the street was paved with cobblestones, and that a large number of children had just been playing there. All those whom the accident attracted seem to have had their attention too strongly drawn by something else to have noticed the stone. In fact, most of them did not even know that a little girl had been hurt. The conductor first busied himself investigating the condition of the ear, and then went into the grocery to telephone headquarters. He corroborates the motorman to this extent, however: He says:

“After I came back from the phone I was informed that the rock was on the track.”

The motorman explains his not having seen the stone in time to stop the car by saying that it lay directly under the electric light that hung overhead at the center of the street intersection, and that the bottom part of the electric lamp cast a shadow at that spot, so that he did not see the obstruction until he was within about 20 feet of it. If we accept his statement as true, as we must, in the absence of any contradiction and of all opposite probability, the company’s defense is fully made out, figuratively, as it is literally, founded on a rock.

Judgment set aside, and suit dismissed, with costs in both courts.  