Fontenot v. Fidelity General Ins. Co.

• Decision Date: 25 April 1966
• Docket Number: No. 1685,1685
• Citation: 185 So.2d 896
• Parties: Mary Viola FONTENOT, Plaintiff-Appellee, v. FIDELITY GENERAL INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 896

185 So.2d 896

Mary Viola FONTENOT, Plaintiff-Appellee, v. FIDELITY GENERAL INSURANCE COMPANY, Defendant-Appellant.

No. 1685.

Court of Appeal of Louisiana, Third Circuit.

April 25, 1966.

Rehearing Denied May 18, 1966.

Nelson & Nelson, by J. Thomas Nelson, New Orleans, for defendant-appellant.

Preston N. Aucoin, Ville Platte, for plaintiff-appellee.

Before TATE, HOOD, and CULPEPPER, JJ.

TATE, Judge.

The plaintiff Miss Fontenot fell out of a moving taxicab. She sues the taxicab's liability insurer to recover for her personal injuries. The defendant insurer appeals from adverse judgment awarding the plaintiff damages.

The issues raised by the defendant's appeal concern: (a) whether the trial court erred in accepting the factual version of the accident to which the plaintiff testified at the trial; (b) if not, whether the defendant's insured, the taxicab company, was primarily negligent under such version; and (c) if so, whether under such version the plaintiff's own testimony does not show her to be contributorily negligent.

(a) Facts, undisputed and disputed.

The plaintiff Miss Fontenot received personal injuries when she fell one afternoon from a moving taxicab in which she was a farepaying passenger. At the time, the driver was executing a left-hand turn at approximately twenty miles per hour; the plaintiff, who had been seated in the right rear of the cab about 12--18 inches from the right door, fell from this opening right rear door.

At the trial, she testified that the right door opened as the cab turned left around the corner. In her words, '* * * the door opened and I try to catch it and that's when I flew out'. Tr. 42. Or as she also stated: '* * * when the door open, I try to catch it, it opened wide and it came back toward--you know, toward the taxi, and I try to catch it and that's when the pressure pulled me out.' Tr. 43 . Thus, in this version the door opened unexpectedly and the plaintiff was pulled out as she attempted to close it.

The defendant's able counsel contends, however, that the true version of the accident is as allegedly stated to the taxicab driver immediately after the accident, namely, 'she told me the door was not closed well, she tried to close it', Tr. 107; that is, that she tried to open and close the door while the taxi was in motion and fell out in the attempt. (Under this version, of course, the plaintiff Miss Fontenot's conduct in opening a door in a moving and turning taxicab, more probably constituted fault causing or contributing to the accident as unreasonably exposing herself unnecessarily to the unreasonable risk caused by her opening the door. See Guillory v. Allstate Insurance Co., La.App. 3 Cir., 185 So.2d 905, Docket No. 1677, rendered this date; Newton v. Wetherby's Adm'x., 287 Ky. 400, 153 S.W.2d 947, 1941; Huebner v. Fischer, 232 Wis. 600, 288 N.W. 254, 1939.)

This version was allegedly repeated twice: (1) to an insurance adjuster for the defendant, who typed a statement to this effect--which the plaintiff, however, had refused to sign; (2) to a hospital clerk at the time of admission, see D--3 Tr. 24--but, pretermitting whether such hearsay statement is admissible under the business record exception, the testimony of the hospital clerk who made the statement was not produced to prove where she had obtained such information, from the patient Miss Fontenot or instead from those with interests adverse to her such as the taxicab company or the local insurance agency (from which certain other information on the form was obviously obtained, such as the name of the agency which issued liability insurance to the taxicab company and such as the name of the adjuster to whom to send any medical report).

We find no error in the trial court's acceptance of the plaintiff's testimony at the trial as truthful and, consequently, in finding factually that the accident occurred as stated by her. Not only did the attending physician state that she had consistently informed him that the accident had so occurred (see also his dictated history, P--1 Tr. 20), explaining that any notation to the contrary (such as D--2 and D--3) must have been the error of an admitting clerk.

More important, the evaluation of credibility is primarily within the province of the trier of fact. In performing this function, a trial court may not commit manifest error by discarding a witness's sworn trial version in favor of earlier inconsistent ones given by the witness. Robinson v. Dupuy Storage and Forwarding Co., La.App. 4 Cir., 137 So.2d 474; Newman v. Fidelity Mutual Insurance Co., La.App. 1 Cir., 86 So.2d 404. However, neither is manifest error committed where, as here, the trial court accepts the witness's sworn version over earlier nonsworn versions. Taylor v. Firemen's Insurance Co., La.App. 2 Cir., 139 So.2d 782; Dixon v. Jenkins, La.App. 4 Cir., 139 So.2d 49; Fruge v. White, La.App. 3 Cir., 125 So .2d 426.

(b) Negligence of taxicab carrier.

The plaintiff was injured while riding as a farepaying passenger in the taxicab insured by the defendant.

The law applicable to the taxicab carrier's standard of care and burden of proof has been summarized with supporting citations in Wise v. Prescott, 244 La. 157, 151 So.2d 356, 357, 359, as follows: The mere showing of injury to a farepaying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case. A public carrier of passengers while not an insurer must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such case. See 14 AmJur.2nd 'Carriers', Section 918, p. 352.

Generally speaking, the operator of a Private vehicle is under no duty to see that his passenger's door is securely fastened (although he may be liable if he undertakes to close the door and does so negligently, with the result that it later flies open). 8 Am.Jur.2d 'Automobiles and Highway Traffic', Section 503, p. 66. However, a different rule applies as to a public carrier.

In keeping with its high degree of care to passengers and with its burden of proving its own freedom from the slightest negligence when a passenger is injured, a taxicab company is negligent when for unexplained causes its door swings open and a passenger falls out. McKnight v. Red Cab Co., 319 Mass. 64, 64 N.E.2d 433 (1946); Roberts v. Economy Cabs, Inc., 285 Ill.App. 424, 2 N.E.2d 128 (1936). Cf. also: O'Toole v. Murphy, Mass., 206 N.E.2d 88 (1965); Shay v. Parkhurst, 38 Wash.2d 341, 229 P.2d 510 (1951); Butler v. McCalip, D . C.Mun.App., 54 A.2d 644 (1947). See Annotation, Open Vehicle Door--Carrier's Liability, A.L.R.2d 1427, Sections 12, 16.

In the present instance, the plaintiff passenger stated that she had gotten in the cab through the right door and that it seemed securely closed, although it later flew open. The driver admitted that he had not checked to see if the door was properly closed, nor had he cautioned his passenger to check the door. Under the evidence, the right door flew open for unexplained cause, as the 1953 Chevrolet taxicab involved in the 1965 accident turned leftwards at the corner at moderate speed. The carrier operating the taxicab has not, in our opinion, exculpated itself from the prima facie case of negligence imposed upon it by law when injuries result to a farepaying passenger.

The negligent opening of the carrier's door was undoubtedly a proximate cause of the plaintiff's injuries: It was a substantial factor in bringing about the harm sustained by the plaintiff, and the risk or harm of the plaintiff falling from the door was within the scope of protection to passengers afforded by the carrier's general duty not to permit doors to open in transit. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298, Dartez v. City of Sulphur, La.App. 3 Cir., 179 So.2d 482. In this regard, incidentally, we find inapplicable jurisprudence from other jurisdictions with a different test as to proximate cause, under which the prior negligence of a carrier in such respect is considered superseded as a proximate cause of the accident by the intervening negligence of the passenger. Gray v. Brown, 188 Tenn. 152, 217 S.W.2d 769 (1948). See also Newton v. Wetherby's Adm'x., 287 Ky. 400, 153 So.2d 947 (1941).

(c) Contributory negligence.

Nevertheless, a very close question is presented as to whether or not the present passenger was contributorily negligent in reaching...