Conway v. The New Orleans City and Lake Rail Road Co.

• Decision Date: 19 December 1898
• Docket Number: 12,889
• Court: Louisiana Supreme Court
• Parties: THOMAS CONWAY v. THE NEW ORLEANS CITY AND LAKE RAIL ROAD CO

24 So. 780

51 La.Ann. 146

THOMAS CONWAY v. THE NEW ORLEANS CITY AND LAKE RAIL ROAD CO

No. 12,889

Supreme Court of Louisiana

December 19, 1898

Argued December 7, 1898

Rehearing Refused January 23, 1899.

ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

W. H Rogers and G. S. Dodds, for Plaintiff and Appellee.

Denegre Blair & Denegre, for Defendant and Appellant.

BREAUX J. NICHOLLS, C.J., absent.

OPINION

BREAUX, J.

This was an action to recover damages, for the loss of plaintiff's leg. The defense pleaded the general denial and negligence of plaintiff.

On the day the accident occurred, being All Saints' Day, many persons were visiting the cemeteries. Plaintiff, about noon, repaired to Canal street, intending to go to the cemeteries. He left the corner of Baronne street and walked toward the first coach of the defendant's steam train. Only two witnesses saw the accident; the plaintiff himself and one of the witnesses of the defendant.

The plaintiff testified, as just stated, that he left the corner of Baronne street and walked to the first coach and inquired of the conductor of the Lake steam train, how long it would be before it started. Ten minutes was the answer. Whereupon plaintiff said: "I will go with you," and walked along the side of the cars near the train, a distance of about one hundred and fifty feet toward the river, for the purpose of boarding a "smoker" car, when he was struck on the right side and was knocked down by an electric car of the defendant and his leg crushed by one of the front wheels, rendering amputation necessary.

The steam car he was about to board stands between Baronne and Carondelet streets on the neutral ground and he was walking between the tracks near the lake train; his back was toward the car that struck him.

The plaintiff also stated that on turning to his right to walk a distance along the train, between the tracks, as before noted, he looked toward the cemeteries to see if any car was coming on the track near the steam train he was about to board, but that when he walked on the neutral ground on the side of the train he did not keep a lookout for the reason that he was not walking on the track of an incoming car.

A rough sketch of the place shows that the track over which the plaintiff walked measured four and a half feet, and that the projecting side of the steam train and electric cars, when opposite one another, measured eighteen inches.

The defendant controverts plaintiff's contention regarding its depot, and avers that the neutral ground is not private property; that it has no control over it.

The facts as relates to defendant's case, as testified to by defendant's witness, who, with the plaintiff himself, are the only witnesses who were present when the accident occurred, are, in substance, that the injury was caused by plaintiff attempting to re-cross the track in front of an incoming car, immediately after he had crossed it, untouched.

In support of the testimony of its witness, defendant's counsel referred to the evidence showing that on the day the accident occurred, owing to the large number of persons, going to or returning from the cemeteries, there were many cars, one hundred per hour, it was said, due at a given point on the track, i.e. one car every thirty-six seconds, and that in the nature of things the plaintiff, in an ordinary walk, would have been struck by some other car ahead of the one which injured him.

The defendant offered the testimony of plaintiff in the Recorder's Court, taken a comparatively short time after the accident, in a case brought there to hold the motorman responsible in a criminal action, for the purpose of proving the contradictory statements of the plaintiff on a vital point of the case.

The evidence of record also shows that defendant's cars were located on Canal street by the city engineer with the approval of the city authorities.

The case was heard by a jury. Their verdict was for eight thousand five hundred dollars in favor of plaintiff. From the verdict and judgment defendant prosecutes the appeal.

We have seen that only two witnesses testified as to how the accident happened: the plaintiff and one of the defendant's witnesses.

They greatly differ in their account.

The first question for our determination is as to which state of facts is correct.

The jury must have found, in order to return their verdict, and the trial judge in signing the judgment, that plaintiff was walking along the car on his way to the smoking car when he was struck.

They heard the testimony and had the opportunity personally, while the witnesses were in their presence, to judge of their credibility.

We are inclined to accept their theory as correct, not only because of the verdict, but, because in reading the testimony of the witnesses it (the verdict) appeared to us to have been correctly returned to the extent stated in our decree.

He (witness for defendant) does not appear to us as having been, as relates to the accident, a very close and careful observer. For instance, he testified that the cars of defendant; the steam dummy on one track, and the electric car on the other, were four or five feet apart when standing together, or when passing each other at the place where the accident occurred, while, in fact, the space between the cars was eighteen inches, nor did he see the plaintiff at the very moment he was struck by the car, but he stated he thought that he was struck by the step of the car.

In our view, the parts of the body wounded, as shown by the testimony of physicians by whom plaintiff was attended, are not corroborative of the statement.

While we have no reason to question the sincerity of the witness,...