
    NO. 8698
    COURT OF APPEAL PARISH OF ORLEANS
    EDWARD WAGNER versus NEW ORLEANS RAILWAY & LIGHT CO.
   Dinkelsplel; J,

Plaintiff institutes this suit against ths defendant, and the National Surety Company of New York, claiming the sum of #3580.40, for injuries received on the 17th of Maroh, 1919; alleging substantially that he was a passenger on oar No. 305 of the Magazine line, owned by the defendeuit herein, the New Orleans Hallway & Light Company. At the time in question the oar on which he was riding was in a very orowded condition, that he was oompelled to stand upon the rear platform of same, and when the oar neared the oorner of Vaiennle and Magazine Streets the oonduotor attempted to see if anyone was going to board the oar at the approaohing oorner, and In order that he might have a better view, the oonduotor pushed the crowd which was on the rear platform aside, qo that he might get to the edge of the platform, and in so pushing the crowd out of his way the oonduotor used suoh foroe that your petitioner was by his aot pushed from the platform of the moving oar, and fell to the ground; that the oonduotor did this in a reoklsss and negligent manner, and that said aooldent was in no wise the fault of plaintiff but was caused entirely by the reokless aot of the oonduotor, and his wanton disregard for the safety of the passengers on said oar. That as a result of aooldent 8ald/fcs£mxkaa his left leg was Injured, the knee oap knooked out of plaoe, oontuslons to the body, right side bruised, and in consequence of these injuries he suffered severe pains, was lnoapaoltated entirely for a period of about two weeks and partially lnoapaoltated for a period of about taaxwMkm six months averring further tkafcmxtkm that when this aooldent ooourred h< was employed as a machinist foreman at a salary of #6.90 per day sad as the result of the aooldent he was lnoapaoltated for ten days and was unable to earn anything whatever during that time, and that he believes that his earning powers will be permanently reduced in the future. He avers that the 8ure-ty Oompany under an ordlnanoe of the City, ae well as under a bond signed by It, is also liable to him for the amount In question.

The answer of the defendant denied generally that It was indebted to plaintiff In any auac, and avers further that plaintiff beoame a passenger of the oar at the time stated and attended to alight therefrom at Magazine and Qaiennle Streets while the oar was moving slowly, and In so doing slipped and fell from the step, and at the time plaintiff oarried a suit oase In one hand and an umbrella In the other, and failed to take the oare required under the olroumstanoes, they aver further that if plaintiff met with the acoldent olalmed by him he was the oause of his own Injuries if any sustained, through hie own fault to take that oare required under the olroumstanoes then and there existing. Wherefore they pray for a judgment In their favor.

adopted The Surety Company/daalal substantially the answer of the defendant.

The record in this case discloses that the plaintiff at the time stated by him was a passenger on the oar In question, and further that at the time that he beoame suoh passenger the oar was very muoh orowded and like many othere on board this oar he was compelled to stand on the rear platform of the oar. The testimony satisfies us that at the time of the aooident plaintiff had a grip, together with an umbrella, and when the oar approaohed toward Qaiennle Street where he Intended to alight, he gave the signal for desiring to get off the oar, and the oondnotor rang the bell in order that the ear should stop at the usual piaos on Qaiennle Street. The reeond further snows that the motorman hearing the bell slowed WP gradually, but before the oar had readhed Qaiennle Street, for some reason or. other, plaintiff oonoluded to try and get rid Of the orowa and get ready to alight, but with the grip ahl the umbrella in his possession, whether he tripped and fell or Whether as he olaime he was pushed by the other passengers, will make no material difference in the deolsion of this oase. The faot remains that in sfcfcsji attempting and finally succeeding in getting off the oar he fell and hurt his knee. The record abundantly proves that the testimony of the witnesses in his behalf is so contradictory that the witnesses are utterly unreliable and unworthy of belief. The one who swears that he stood at the oomer of Galennie gtreet expecting plaintiff to alight and testifies that he saw the conductor with his hands on plaintiff and pushing him violently off the oar is absolutely oontradioted by the other witnesses for plaintiff, and by plaintiff himself, both claiming that the crowd on the baek platform so intercepted the plaintiff that they pushed him off the oar*

On theother hand the witnesses for defendant all unite in the faot that plaintiff violently and of hiB own aooord got his grip and his umbrella in order to alight while the oar was slowly moving, and whether he fell or whether he attempted to alight before the oar oame to a sati«factory stop was his own aot, and not oaused by anyone connected with the defendant in any manner, shape or form,- and that whatever acoident ooourred was oaused by hie own voluntary aot and was not oaueed by the acts of the defendant or lte employees. This is fully borne out by the testimony of Daley, Xotsh, the oonduotor, Poohe, and Honeyout. The oonduotoi testifies positively that the man fell from the oar and hurt himself, the oar was moving slowly, he fell before it oame to a stop,about the middle of Galennie Street; that there was no surging of passengers and there was no shoving of the plaintiff; that he saw the whole thing and whether the man with the grip and the umbrella In his hand tripped witness does not know, nor do any of the other witnesses.

The question presented is mainly one of faot, and when We have the feote as established and the witnesses tee- . 4. timony, the judge of the lower uourt, an experienced and learned Judge of the Court for many years prior to this aooident, who mm heard and saw. the witnesses, had better means of judging the truth than we hare, and who was therefore m a setter position to judge of the truthfulness of the witnesses' testimony, and who after a full and complete hearing of the oase waa satisfied that whatever Injury 009 ourred to plaintiff waa produced through hla own faul.t and his own negllganoe, rendered judgment in favor of defendant and in thte judgment we oonour.

March 19th, 1923.

"The burden of proof is on plaintiff and he has utterly failed in establishing his olaim for Injury. Crowded conditions of oars oannot of itself be urged as a right to raoovery.*

Viator vs. H,0. By. & Light Co. 139 La. 439.

Landix vs. St. 4. By. & Light Co. 140 La. 329.

Olivier vs. Sf. 9. By. & Light Co. 43 La. 304«

for the reasons assigned it ie ordered,adjudged and deoread, that the judgment of the Court aquo be and the same la hereby affirmed, oosts of both Oourta to be paid by plaintiff.

-Judgment affirmed-  