Barnes v. Shreveport City Railroad Company

• Decision Date: 21 June 1895
• Docket Number: 11,841
• Court: Louisiana Supreme Court
• Parties: W. S. BARNES FOR THOMAS L. BARNES v. SHREVEPORT CITY RAILROAD COMPANY

17 So. 782

47 La.Ann. 1218

W. S. BARNES FOR THOMAS L. BARNES v. SHREVEPORT CITY RAILROAD COMPANY

No. 11,841

Supreme Court of Louisiana

June 21, 1895

Argued June 8, 1895

Rehearing Refused, June 29, 1895.

APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

T. F Bell and E. H. Randolph, for Plaintiff, Appellee.

Wise &amp Herndon for Defendants, Appellants, cite: 36 An. 750; 37 An 288.

WATKINS J. NICHOLLS, C.J., absent.

OPINION

WATKINS, J.

This suit is for the recovery of ten thousand dollars damages against the defendant for injuries sustained by the plaintiff's infant child of three years of age, it being run over by one of defendants' street cars, which was operated by electricity, and its arm so broken and crushed that it had to be amputated, leaving it in a permanently crippled condition.

The statement of the petition is that the accident occurred at the intersection of Texas and Crocket streets, in the city of Shreveport, defendants' car being at the time operated on Texas street in carrying passengers. That at the time of the occurrence plaintiff's child was standing at or near the railroad track, where there is a curve or turn, thus being in a position in which the motorman operating the car could have easily seen it had he been at his proper place and carefully attending to his duties. That the accident was occasioned by the gross carelessness and negligence on the part of the railroad company, its servants, agents and employees. That the injury inflicted upon the child caused it great pain and suffering, and resulted in its being maimed and disfigured for life.

The defendants' answer is a general denial, coupled with the plea of contributory negligence on the part of the child and its parents.

The cause was tried by a jury, who rendered a verdict in favor of the plaintiff for three thousand dollars, and from the judgment of the court thereon based, the defendant has appealed. In this court the plaintiff and appellee filed an answer to the appeal and demands an amendment of the decree so as to award him the full amount claimed in his petition.

The testimony of all the witnesses concurs as to the following established facts, viz.: That the accident happened in open daylight, while the car was slowly moving down grade of its own weight and momentum, the electric current having been cut off; that the track and car were in apparently good order, and the motorman in charge of the car was a sober, prudent and experienced employee; that not one of the several passengers who were in the car at the time either saw or knew of the happening of the accident.

One witness states that as he was entering the car he saw the car strike the child, but that he did not notice what the motorman was doing at the time. Another witness states that as he came to the car, he saw it just as it was checking up, and just then the little boy rolled out from under it.

A physician from the Charity Hospital testifies that he was a passenger on the car on the morning of the occurrence, and the substance of his statement is as follows:

That he was sitting near the fare-box when a passenger came in and spoke to him, handing a quarter of a dollar to the motorman to make change so he could deposit his fare in the fare-box. Heard the passenger ask the motorman for change, and saw the motorman give him the change. That just as he gave him the change witness observed the motorman apply the brake in a rather excited manner; and soon afterwards all the passengers became excited and stood up -- the witness among the number. That just about that time he heard a little child scream, and looking out of the window he saw a little fellow holding his arm in his hand. That he ran out quickly and caught hold of the arm to prevent a hemorrhage. That upon learning whose child it was he directed that he be at once carried home; and that he went there also, and applied a bandage on the broken limb, and just as speedily as possible telephoned to the hospital for his instruments and amputated it. That he amputated it just about the junction of the upper and middle third, just above the elbow. That the arm was crushed above the elbow, and there was no such thing as saving the arm -- amputation being absolutely necessary.

Another witness corroborates the physician's statement with reference to the motorman giving a passenger change about the moment of the occurrence. He heard the cry of alarm made by some passengers, and saw the motorman catch hold of his brake "as quickly as possible" and try to stop the car, "but it was a little too late to stop the car." He states that there was no conductor on the car; and defendant's cars are not provided with conductors -- the double duty being, by the company's regulations, imposed on the motorman of handling the car and making change for the passengers. He says that when the car is in motion, the motorman's post of duty is on the front platform of the car, and that he occupies a position so he can look on either side.

That the car is provided with a brake on the front platform, so that he can arrest the speed of the car; and also with an apparatus so that he can cut off and turn on the electric current at will. He says that, at the place where the accident occurred, there is a switch, and the car passes slightly down-grade from the switch to the main line; and that in thus passing off of the switch it is customary for the motorman to slow up by cutting off the current and permitting the car to run down of its own momentum.

Another witness who had a seat in the car by the side of the physician who testified, gives much the same relation of facts as the latter did. He speaks of the passenger who came in and walked up to the motorman to get change to pay his fare. He states that "the motorman turned around to make the change for him about the time (the car) was going out of the switch." That it had gone probably fifteen or twenty feet (while) he was making change and he turned partially around so as to make the change for the passenger. That immediately after having received his change, the passenger made some remark and the motorman...