Caillier v. New Orleans Ry. & Light Co.

• Decision Date: 14 November 1921
• Docket Number: 8126
• Citation: 120 So. 76,11 La.App. 93
• Parties: CAILLIER v. NEW ORLEANS RY. & LIGHT CO. ET AL
• Court: Court of Appeal of Louisiana — District of US

120 So. 76

11 La.App. 93

CAILLIER v. NEW ORLEANS RY. & LIGHT CO. ET AL

No. 8126

Court of Appeals of Louisiana, Orleans

November 14, 1921

Appeal from Civil District Court. Hon. H. C. Cage, Judge.

Suit by Mrs. Robert Caillier against the New Orleans Railway & Light Company and others.

There was judgment of dismissal, and plaintiff appeals.

Judgment affirmed.

O. S Livaudais and P. R. Livaudais, of New Orleans, attorneys for plaintiff, appellant.

Dart Kernan & Dart, of New Orleans, attorneys for defendants appellees.

OPINION

CLAIBORNE, J.

Plaintiff was riding in one of the street cars of the defendant company, when, by accident or inadvertence, her hand was extended beyond the window of the car; it came in contact with another car of defendant company going in an opposite direction, and was injured. Hence this suit in damages.

The plaintiff alleged that about 8:20 o'clock p. m. she was a passenger on a Tulane Belt car proceeding along Tulane avenue going towards the lake; that she "was seated in the third seat on the left hand side of the car, with her elbow on the window sill and her left hand resting against her cheek; that upon reaching a point near the corner of Hagan Avenue, the said car, owing to the defective condition of the tracks of said street railway company, gave a sudden jolt and tilted or leaned towards the adjoining track which paralleled within very close proximity the track on which said Tulane Belt car was running; that upon reaching said defective spot and at the moment the said jolt occurred, a car of the St. Charles Belt Line was passing along the adjoining track going towards the river; that said jolt caused petitioner's elbow to slip from said window sill, and her hand slightly protruded from the window of said car, and came in violent contact with said car of the St. Charles Belt line, resulting in the tearing of the flesh of her left hand at the lower part of the thumb, causing an incised wound of the left hand, which made her suffer great physical and mental pain; that her said injuries were caused solely and entirely by the negligence and carelessness of the railway company, and that plaintiff did in no wise contribute to the accident; that at the time of the accident there was and is now a city ordinance requiring the cars on the Tulane Belt line to be provided with screens for the protection of passengers; that at the time plaintiff suffered her injury the car in which she was seated was not so screened; that petitioner would not have been injured had the car been so screened." She prays for $ 1,000 damages.

The defendant answered that the plaintiff permitted her arm to go outside of the body of the car so that it came in contact with some object on the adjoining track, and by so doing plaintiff's injuries were due to her own careless, negligent, and imprudent conduct.

There was judgment for defendant dismissing plaintiff's suit, and she has appealed.

Plaintiff's testimony is a practical reiteration of the allegations of her petition. She measures about 22 to 24 inches from her arm to the end of her fingers.

A. Brignae, a brother of the plaintiff, testified: "We were sitting on the seat talking and she had her elbow on the window with her hand on her cheek, and I happened to be looking out, and there was a jar of the car, or bounce, somehow or other, and it made an awful big bounce and her elbow must have slipped and her hand dropped, and just as soon as her hand dropped, I heard her holloa, and I reached for her arm and pulled it in, and it was done already; at that time I saw a car passing; the tracks at that point were in bad condition, it caused the car to tilt to the left; the distance from the ground to the window sill is about six feet; they repaired the track after the accident;" neither his sister nor himself made any complaint to the conductor of her injury.

Officer Shelter swears that he knows about where the accident occurred; the connections of the two tracks were loose; it made the cars jolt towards the left; the track was repaired some two weeks after that.

Officer Friess testifies that Mrs. Caillier came to him while on his beat and complained about getting her hand hurt, and he brought them to the Carrollton barn; the distance between the two tracks is four feet six inches from track to track; the cars protrude about eighteen inches over the rails; the track was in bad condition and made the cars lean towards each other; he noticed how the cars rocked; the top of the car was brought six or eight inches apart, and the windows about sixteen inches; the O. K. line of cars pass upon the same tracks; he did not examine the track; lots of people ride with their elbows out of the window; it is the first time he ever heard of any one getting hurt that way; when the cars go fast they swing very much from side to side.

W. F. Loan, chief clerk of the claim department of defendant company, testified that he was riding on the rear platform of the car on which the accident occurred with his mother; that on reaching the bridge near the New Basin, she informed him that an accident had occurred in the front part of the car; he went to the front part of the car and informed the motorman and tried to collect witnesses, but every one said they had not witnessed the accident; he noticed no unusual jolt of the car.

The witness produces sketches representing the measurements of the cars, of the seats, and of the windows. From these sketches it appears that the distance from the face of the rails to the outside top of the car is 9 feet 5 inches; and the distance from the face of the rail to the molding below the windows is 5 feet 1 7/8 inches; the distance from back to back of seats, at the top, is 29 inches; the distance from the back of the seat to furthest side of the window in front is 22 inches; the distance from the top of the seat to the sill or arm rest of the window is 8 1/2 inches; the arm rest is 1 7/8 inches to the moulding or rain shed, which is 4 inches wide, so that the distance from the inside of the window of the arm rest to the extreme edge of the rain shed is 5 7/8 inches.

The witness further states that he travels four times a day on this line, as he lives in Carrollton; after the accident he took particular notice and did not perceive that the cars swayed to any extent more than the natural motion of the car; the distance between the cars at the molding board, as they pass each other, is about 16 inches.

Mrs. Mary S. Loan, mother of the last witness, says she was seated in the center of the car in which the accident occurred; she saw a commotion and was told a woman got hurt; she noticed no jolting of the car; it was running smoothly.

R. A. Ainsworth was a conductor on the car when the accident occurred; he noticed no unusual movement or swaying of cars on that occasion; no one made any complaint of an accident except Mr. Loan; the track was in very fair condition; no rough places; he did not notice any repairs going on after the accident; he noticed a lady going out with her hand tied in a hand-kerchief with some blood on it; she went to the barn foreman to make a complaint.

Felix Desmare was the motorman; he knew nothing of the accident until Mr. Loan told him of it; he noticed no unusual jolting or swaying of the car; the road was in the usual condition; some places more or less rocking than others; no extensive repairs were made after the accident; they did work immediately after for several days.

It was admitted that J. Dunn, the track foreman of defendant, would testify that on July 17 there was work done on the Tulane avenue tracks, consisting of repairing joints, and that there was more work done on November 21st to 25th.

City Ordinance No. 12677 Council Series, to which plaintiff refers, is in the following words:

"That the Commissioner of Public Works be directed to require all street railroad companies to place wire screens on the windows of cars running on streets where the tracks are in close proximity to trees, or on Canal Street where the tracks are in close proximity to Clay Monument, of sufficient height to prevent accident to passengers; provided, that this ordinance shall not apply to cars which are so constructed as in the opinion of said Commissioner to protect the passengers."

The...