Evens v. Texas Pac.-Missouri Pac. Terminal RR, 10329.

• Decision Date: 24 May 1943
• Docket Number: No. 10329.,10329.
• Citation: 134 F.2d 275
• Parties: EVENS v. TEXAS PAC.-MISSOURI PAC. TERMINAL R. R. OF NEW ORLEANS.
• Court: U.S. Court of Appeals — Fifth Circuit

134 F.2d 275 (1943)

EVENS v. TEXAS PAC.-MISSOURI PAC. TERMINAL R. R. OF NEW ORLEANS.

No. 10329.

Circuit Court of Appeals, Fifth Circuit.

February 17, 1943.

Rehearing Denied March 11, 1943.

Writ of Certiorari Denied May 24, 1943.

Solomon S. Goldman, of New Orleans, La., for appellant.

Leonard B. Levy, of New Orleans, La., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

Writ of Certiorari Denied May 24, 1943. See ___ U.S. ___, 63 S.Ct. 1175, 87 L.Ed. ___.

HOLMES, Circuit Judge.

This is a suit for damages for personal injuries sustained by appellant when she was knocked to the pavement in appellee's terminal station in New Orleans, Louisiana. At the conclusion of the trial both parties moved for a directed verdict, but rulings upon the motions were reserved, the cause was submitted to the jury, and a verdict for appellant was returned. Appellee thereupon moved for judgment non obstante veredicto, and, in the alternative, for a new trial on the ground that the verdict was excessive. Both motions were granted, judgment was entered dismissing the suit, and appellant appealed.

At the time the accident occurred, appellant had arrived in New Orleans by train from Dallas, Texas, and was proceeding from the train toward the taxi stand outside the station. She had secured passage on the train by means of a pass, and, in consideration of its use, she had assumed all risk of injury to her person. The parties are agreed that, by reason of her assumption of risk, appellant was entitled to recover only for injuries resulting from willful or wanton negligence of the terminal company,¹ and that the only question presented is whether there was evidence from which the jury might have found that the admitted negligence of appellee was willful or wanton.

Appellant was a lady more than seventy-six years of age. After leaving the train, she was following her red-cap, who was taking her bags to the taxi stand. As she passed through the gate separating the tracks from the vestibule leading to the waiting rooms, she was struck from behind, and seriously injured, by a heavily loaded cart pushed by another red-cap, a servant of appellee. The cart was piled high with luggage, but the red-cap could see over it when standing upright; the cart, as loaded, weighed more than 500 pounds, and was equipped with rubber tires so that its movements were comparatively noiseless. Several bystanders who witnessed the accident realized that the red-cap was going to run into appellant, and shouted warnings to him, but he failed to stop in time. Appellant was never aware of the presence of the red-cap or of her peril. The red-cap testified that he saw appellant moving through the gate directly in the path of the cart when he was twenty-five feet away. He did not look for her again or see her before the accident, but devoted his attention toward seeing that the sides of the cart would clear the gate.

The negligence of the red-cap was not willful, for that term usually connotes an act intentionally done for the purpose of causing injury, but we think the evidence made an issue for determination by the jury as to whether the servant was guilty of wanton negligence. Wanton negligence may be generally defined as an act (or failure to act when there is a duty to act) in reckless disregard of the rights of another, coupled with a consciousness that injury is a probable consequence of the act or omission.² It was negligence for the red-cap to propel the heavy vehicle along a passageway occupied by other persons when the luggage impaired his vision of the course that he pursued. That negligence became aggravated when — with knowledge that appellant was just ahead of him, that unless she stepped aside she would be run down, and that the heavily loaded cart might cause her serious injuries in the event it should strike her — the red-cap continued to push his vehicle through the gate without looking to see that his way had become clear. Such reckless indifference for the safety of appellant, in full awareness of her peril, supported the express finding of the jury that appellee was guilty of wanton negligence.

For the error in granting the judgment non obstante veredicto, the judgment appealed from is reversed, and the cause is remanded to the district court for further proceedings not inconsistent with this opinion.

HUTCHESON, Circuit Judge (dissenting).

I am in complete agreement with my brothers' statement of the principle which controls this case:

"Wanton negligence may be generally defined as an act (or failure to act when there is a duty to act) in reckless disregard of the rights of another, coupled with a consciousness that injury is a probable consequence of the act or omission" (emphasis mine). That the emphasized words are the crux of the rule, the authorities unanimously attest.

"Reckless Disregard of Safety Defined.

"The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree or probability that substantial harm will result to him." A.L.I. Torts Restatement Negligence, Sec. 500, p. 1293.

"Although conduct to be reckless must be negligent in that it is unreasonable, it must be something more than negligent. It must not only be unreasonable, but it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent. It must involve an easily perceptible danger of substantial bodily harm or death and the chance that it will so result must be great." id., p. 1294.

"* * * Wilfulness or wantonness imports premeditation or knowledge and consciousness that injury is likely to result from the act done or from the omission to act. * * * Wanton misconduct is positive in nature, while mere negligence is materially negative. A person properly chargeable with wanton misconduct is not simply one who is more careless than one who is merely negligent; wanton misconduct is such as puts the actor in the class with the wilful doer of wrong." 38 Am.Jur., Negligence, Sec. 48, p. 692, 693.

This court, in Wunderlich et al. v. Franklin, 5 Cir., 100 F.2d 164, 167, correctly stated the rule thus:

"In defining wanton negligence, the Alabama courts emphasize the necessity that the lack of care and disregard of probable consequences be so great that, in its ethical aspects at least, it be analogous to a will or intention to produce the result. A clear distinction between willful and wanton injuries is maintained on the basis of distinct elements, but the cases do not lose sight of the fact that, in holding liability for wanton negligence, they are treating the wrongdoer as if he had actually intended the result.

"* * * It is not wanton negligence to assume that another will exercise due care and caution for his own safety. It has been stated in Alabama Great Southern R. Co. v. Hall, 105 Ala. 599, 17 So. 176, 179: `Before one can be held guilty of "willful" or "wanton and reckless negligence" the facts must show either that the party knew his conduct would inflict injury or the facts must show that, on account of the attending circumstances, which were known to him, or a knowledge of which he was chargeable with, the inevitable or probable consequences of his conduct would be the infliction of injury, and with reckless indifference to the consequences committed the act or omitted to perform his duty. * * *'"

There were five witnesses, two for defendant and two for plaintiff and there was plaintiff, herself. Their evidence¹ is exceedingly brief. It presents no points of conflict. My disagreement with the opinion is (1) with its holding that the evidence, as it states it, makes out a case which would support a finding of wantonness within the settled rule, and (2) with its misleadingly brief and inaccurate statement of the evidence. Because it omits the controlling facts, undisputedly established by the record, which as a matter of law prevent a finding of wanton negligence, the opinion fails to present a true picture of what occurred. The result is that, though these facts are affirmatively established by undisputed evidence and leave in no doubt that there was no wantonness here, the opinion gives the impression that there was no proof on these matters and that what the facts were as to them might be inferred by the jury from the facts the opinion states. These controlling facts are: (1) that Johnson did not know that Mrs. Evens was lame or walking with a stick and was not conscious at any time that she was in a position of danger;² (2) that Johnson was coming along pushing the buggy slowly, that when he was going through the gate and the buggy came in contact with Mrs. Evens, he was going extra slow, that Johnson did not see Mrs. Evens as he went through the gate and did not know that she was there or in any danger; and, most important of all, (3) that Johnson testified, and no one disputed him, that when he was about to go through the...