Kird v. New Orleans & N.W. Ry. Co

• Decision Date: 21 June 1902
• Docket Number: 14,300
• Citation: 33 So. 587,109 La. 525
• Parties: KIRD v. NEW ORLEANS & N.W. RY. CO
• Court: Louisiana Supreme Court

33 So. 587

109 La. 525

KIRD v. NEW ORLEANS & N.W. RY. CO

No. 14,300

Supreme Court of Louisiana

June 21, 1902

Rehearing denied February 2, 1903.

Appeal from judicial district court, parish of Morehouse; W. J Gray, Judge.

Action by Edmond Kird against the New Orleans & North Western Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Jonathan N. Luce, for appellant.

E Tyler Lamkin, for appellee.

OPINION

PROVOSTY J.

The plaintiff's wife boarded the defendant's train at Oakridge station on her way to Monroe. She took a seat next to a window, another woman of her own race occupying the other half of the seat at her left. The car moved on, and had gone about 150 feet, when plaintiff's wife's right arm was broken in two places, above and below the elbow, by coming in contact with a bale of cotton that stood on the freight platform of the defendant company, alongside of which the train was passing. Plaintiff sues in damages for the injury, and the defendant company answers that the accident was brought about by the negligence of the plaintiff's wife in putting her arm out of the car window.

The plaintiff's wife says that she and her seat companion were eating pinder candy, of which the supply was in a paper bag in her lap; that she was holding a piece of candy in her left hand, while her right was on her lap, her elbow resting on the window sill, when the window was darkened by the bale of cotton, and her arm was broken by being crushed against the jamb of the window; and that the broken arm dropped in her lap.

She is a talkative witness, given to details, and her testimony has about it an air of ingenuousness; but she says that she did not put her arm out of the window and wave good-by to her friend as the car was leaving the station, and that her arm at the moment of the accident was wholly inside of the car, no part of it projecting outside, whereas all the other witnesses who saw the accident testify that she did wave and that her arm was projecting.

Two of these witnesses testify that her arm was still extended out of the window in the act of waving at the moment of the accident; but the weight of the testimony is that she had ceased waving, and had drawn in her arm, and was merely resting it on the window sill.

The defendant's witness Brodnax, who had had his head out of one of the windows of the front car and had drawn it in just in time to avoid the cotton, testifies, as follows: "After she ceased waving, she placed her arm on the window sill, with the elbow sticking six or seven inches out of the window. * * * A portion of the hand was out of the car window, I think, as best I remember."

The defendant's witness Drew, who was at the station looking at the train as it moved off, and watching the arm, and within 150 feet of it, testifies as follows: "Q. Is it not a fact, Mr. Drew, that Melissa Kird's elbow, at the time the injury was inflicted upon her, extended over the car window, or out of the car window, only a very short distance or space? A. That's what I stated. Q. Is it not a fact that the elbow did not project or extend over the window sill two inches? A. I can't say that exactly. I say it extended over the window sill no further than the width of the arm. It was almost directly straight. Her arm was straight with the car when I saw it. Q. Her arm was almost straight with the window sill upon which it was resting? A. Yes, sir. Q. With the hand extending inward, or the inside of the car? A. I could not tell whether the hand was inside the car or hanging directly down. I couldn't see the arm at all, but just the elbow. Either the hand was bent inside the car, or down. I couldn't tell which."

Drew was in the better position for observation, and his attention was concentrated on the arm at the moment of the collision; hence we adopt his statement that the elbow was extending outside no further than the thickness of the arm.

Our conclusion from this testimony, taken in connection with that of plaintiff's wife, is that when the...