Baptiste v. N. O. Pub. Service, Inc. , 13 La. App. 625 ( 1930 )

HIGGINS, J.

Plaintiff sues defendant as a carrier- of passengers for the sum of $9,-200 for personal injuries alleged to have been sustained about 4 o’clock p. m. April 1, 1929, while attempting to alight from the rear platform and step of the street car upon which she was riding as a passenger, at the corner of Freret street and Napoleon avenue, this city. The petition alleges that the step and doors of the car leading from the rear platform are operated by a mechanism which causes the doors to open and close and the step to be drawn against the side of the car in a vertical position when not being used and to be lowered and placed in a horizontal positiou at right angles with the side of the ear when the doors are open and the step is in position to be used; that as the car stopped, the doors were opened and the step lowered by the conductor, who operated the mechanism with a lever, and that plaintiff was thereby invited to descend; that, as she stepped from the rear platform on the step, she did not notice that the step was not completely down in its correct position, and, as she stepped upon it, it gave way under her weight for a distance of about three inches, thereby causing her to lose her balance and fall violently to the ground; and that, as a result of the fall, she suffered certain alleged injuries.

Defendant entered a general denial and averred that, after the plaintiff safely alighted from the car, she stumbled and fell while walking from the car, breaking the force of her fall by landing partly on a bundle of clothing on the ground near her; that the car had fully stopped; that the step was placed in the proper position and was fully down and was in a good state of repair; that the agents and employees of the defendant exercised all possible care, prudence, and caution on the occasion, and that the plaintiff is solely at fault and responsible for her injuries through her own negligence and imprudence in failing to exercise that degree of care and caution necessary under the circumstances.

The case was tried before the district court, who rendered judgment in favor of plaintiff for the sum of $2,000, and defendant has appealed.

As this is a suit against a public carrier of passengers for alleged personal injuries sustained by a passenger, when the plaintiff proved that she was such a passenger on the street car, and that she fell from the step of the car while alighting, the burden of proving itself free from fault was then upon the defendant. LeBlanc vs. Sweet et al„ 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Hopkins vs. N. O. Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362; Rizzo vs. N. O. Ry. & Light Co., 7 La. App. 686; Cusimano vs. N. O. Public Service, (La. Sup.) 127 So. 376.

The record shows that plaintiff was a passenger upon a Napoleon avenue street car, owned and operated by the defendant, and that the car stopped at the corner of Napoleon avenue and Freret street for the purpose of discharging and receiving passengers at the usual paved landing place. As the car stopped, the conductor pulled the lever which caused the doors of the car to open and the step to go down, in order that passengers might descend and board the car. Andrew Dallas, a colored boy, who was a passenger on the car, threw a large bundle of laundry wrapped in a sheet from the rear platform of the car to the pavement. The plaintiff then stepped from the rear platform on to the step, which had not gone all the way down to a horizontal position, where it properly should have gone, and, as she placed her right foot upon it, the step gave way, or went down under her weight, causing her to fall from the step to the ground, striking her left knee on the step and her right knee and shoulder on the pavement, with her arms on the laundry bundle. The conductor picked her up and she showed him the injuries to her knees. Plaintiff is a colored woman, age 57 years, and is a trained nurse. She is very tall and thin. She was able to walk, but was assisted home by a friend.

This case involves only issues of fact, of which there are two: First. Whether or not the plaintiff safely alighted from the car and then tripped or stumbled over the bundle of clothes. Second. Did the plaintiff fall from the step of the car due to the fact that the step was not in proper position (that is, at right angles with the side of the car) but was in a vertical position, or on an oblique angle with the side of the ear. We shall discuss the evidence with reference to these two questions in the above order.

It is first noted that the answer of the defendant does not say that the plaintiff stumbled over the bundle ■ of clothing, but merely that the force of the fall was broken by falling on the bundle of clothing on the ground near her. Defendant’s witnesses contradict each other as to where the bundle was, some saying it was within two or three feet of the car and others within five or six feet of the car. One of defendant’s witnesses, Andrew Dallas, the colored boy, age 12, who threw the bundle from the car, testified that the plaintiff fell from the step of the car. The motorman, Louis Monicou, testified that the conductor, John E. Unland, told him that the plaintiff said at the time of the accident tjhat she fell from the step. The motorman also testified that F. M. Kroh, another witness for the defendant, told him at the time of the accident that the plaintiff claimed she fell from the step and would make a claim against the company, but that he (Kroh) saw her when she fell over the bundle and gave his name and address to the motorman as a witness. In spite of this testimony the defendant offered as a witness George T. Croman, one of its investigators, who testified that he interviewed the plaintiff at her home the morning after the accident, and that she said she fell after she alighted. All of the plaintiff’s witnesses, including herself, testified that she fell from the step of the car, and that her arms came in contact with the bundle after she fell to the ground. The preponderance of the evidence clearly shows that the plaintiff fell from the step of the car and not over the bundle, after safely alighting.

We next pass to a consideration of the question as to what caused the plaintiff to fall from the step of the car. The plaintiff and her three witnesses testify that she fell from the step of the car, and plaintiff and one of her witnesses, Andrew Burras, colored, testified that the step was not properly down and gave way under her weight as she stepped upon it, causing her to fall. The motorman and conductor both testified that they did not see plaintiff when she fell, but that they had no complaints from any other passengers before or after the accident that the step was not in good working order. F. A. Geiser, repair foreman for the defendant, testified that the mechanism that operated the doors and the step is operated by air pressure, and that, when the doors were wide open, the step had to he fully down in position to be used. He stated that this car had been in use since March, 1925, and, as far as he knew, there had never been any repairs to take up the slack or lost .motion which would be caused by the wearing of the parts which were used in the mechanism that opened and closed the doors and step. On cross-examination he admitted that in opening and closing the doors and steps there would he wear on the pins that would cause some lost motion, maybe one-eighth or a quarter of an inch. In short, the plaintiff has positive testimony that the step was not in proper position and did give way some two or three inches under her weight when she stepped upon it, and the evidence of the defendant as to the step being in proper position is negative. We, therefore, find that plaintiff fell from the step of the car as a result of its being tilted, or in an improper position, and that the defendant was guilty of negligence and carelessness in inviting a passenger to descend upon a step which gave way and would not properly support her weight and cause her, a passenger, to fall. Even if we were not of the opinion that the evidence preponderates in favor of plaintiff, and that defendant has failed to show that it was free from fault, nevertheless, the case would clearly fall within the category of the decisions which hold that, on questions of fact, unless manifestly erroneous, the conclusions of the trial judge should be upheld. Hanton vs. N. O. & C. R. L. & P. Co., 124 La. 562, 50 So. 544; Winn vs. Strickland, 151 La. 235, 91 So. 719; Wall vs. Dudley, 152 La. 911, 94 So. 441; Grau vs. Consolidated Dredging & Mfg. Co., 162 La. 205, 110 So. 202; Tinker vs. Hirst, 162 La. 209, 110 So. 324; Ponder vs. Coyle, 164 La. 905, 114 So. 729.

As to the quantum, the only medical testimony we have in the record is that of Dr. R. J. Coker, who testified that he treated the plaintiff on April 2d, and 3d, and that he found blood in her urine, contusions of the right shoulder blade and of the right and left knee, and a dislocation of the right kneecap; that he treated her while she was in bed for three weeks; that X-ray pictures were made oí the knee and shoulder, but he would not undertake to say what they showed, as he was not at liberty to withdraw them from the Charity Hospital, where they were made; that he then lost sight of the case for about six or eight weeks; that he reported the result of his finding to Dr. Thibaut, the defendant company’s doctor; that the right knee was stiff in spite of the fact that ultra violet ray treatments were administered, and that there was a 30 per cent disability of the right knee at the time of the trial. This medical testimony is corroborated by the plaintiff’s testimony, who volunteered to have the court to appoint a doctor to examine her, but this was not done. The plaintiff is a colored woman, age 57 years, and a trained nurse. The judge of the trial court allowed her the sum of $2,000. We are of the opinion that this amount is somewhat excessive, in view of our jurisprudence in similar cases, and will reduce it to the sum of $1,250.

For the reasons assigned the judgment is amended by reducing the amount awarded plaintiff to $1,250, and, as thus amended, it is affirmed, appellant to pay all costs.