Cusimano v. New Orleans Public Service, Inc.

• Decision Date: 05 March 1930
• Docket Number: 30364
• Citation: Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376 (La. 1930)
• Court: Louisiana Supreme Court
• Parties: CUSIMANO v. NEW ORLEANS PUBLIC SERVICE, Inc

127 So. 376

170 La. 95

CUSIMANO v. NEW ORLEANS PUBLIC SERVICE, Inc

No. 30364

Supreme Court of Louisiana

March 5, 1930

Rehearing Denied March 31, 1930

Reversed and rendered.

Ivy G Kittredge, of New Orleans, for applicants.

Scott E. Beer, of New Orleans, for respondent.

Spencer Gidiere, Phelps & Dunbar, Lemle, Moreno & Lemle, Terriberry, Young, Rault & Carroll, Monroe & Lemann, Denegre, Leovy & Chaffe, and Milling, Godchaux, Saal & Milling, all of New Orleans, amici curiae.

ST. PAUL, J. O'NIELL, C. J., concurs.

OPINION

ST. PAUL, J.

This is a suit for damages. The case is thus succinctly stated by the district judge: "In this case it is proved that the plaintiff was a passenger on the defendant's car; and it is proved that as she was alighting at her destination she fell and received serious injuries. In her petition she charged the defendant with fault and specifies it to be that as she was alighting the car started forward negligently so as to throw her to the ground. I think the evidence in the case, by preponderance, fails to establish this allegation. * * * On the whole, I find it to be a fact that the car did not move as the plaintiff was alighting from it."

The Court of Appeal did not find the facts differently; and our own conclusion is that the facts have been correctly found.

Such being the facts, the defendant has shown that it was free from negligence; and hence should be discharged.

But both the trial court and the Court of Appeal found for the plaintiff on the theory that it had been decided by this court in Hopkins v. N. O. Railway & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362, that it was not sufficient for the carrier merely to show that he was free from negligence, but that in order to do so must show affirmatively the exact cause of the accident.

That theory is correct as to goods and merchandise delivered to a carrier. R. C. C. art. 2754; Lehman v. R. R. Co., 115 La. 1, 38 So. 873, 70 L.R.A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818. But it is not true as to passengers. What this court meant to hold in the Hopkins Case as also in Le Blanc v. Sweet, 107 La. 355, 31 So. 766, 772, 90 Am. St. Rep. 303, and Spurlock v. Traction Co., 118 La. 1, 42 So. 575, was that, where a passenger was not safely carried to his destination, the burden of proof was on the carrier to show that it was free from negligence. If the language of those cases goes beyond this, then it is too broad and should be restricted. Thus in Le Blanc v. Sweet, the court said "We are of opinion, therefore, that the means provided by the officers of the Olive for effecting the transfer of their passenger, Miss Le Blanc, were not commensurate with the danger to which she was subjected, and we fail to find anything in her conduct to relieve the owner of the boat from liability for the consequences." So that having found the defendant negligent and the plaintiff free from contributory negligence, it was unnecessary for the court to add that "it is for the carrier, and not the passenger, to prove what negligence, and whose, prevented the fulfillment of the contractual obligation of the carrier," except with reference to the plea of contributory negligence which was set up; for "in such a case the carrier must establish affirmatively the acts on the part of the passenger which it claims bring him under the operation of the rule of contributory negligence, barring him from recovery." Clerc v. Railroad & Steamship Co., 107 La. 370, 31 So. 886, 891, 90 Am. St. Rep. 319.

On the other hand, in Spurlock v. Traction Co., 118 La. 1 42 So. 575, where a passenger fell from the platform of a...