Hayes v. Illinois Cent. R. R.

• Court: Court of Appeal of Louisiana
• Writing for the Court: TATE; ELLIS
• Citation: Hayes v. Illinois Cent. R. R., 83 So.2d 160 (La. App. 1955)
• Decision Date: 06 October 1955
• Docket Number: No. 4063,4063
• Parties: Leonidas B. HAYES, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD, Defendant-Appellant.

Page 160

83 So.2d 160

Leonidas B. HAYES, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD, Defendant-Appellant.

No. 4063.

Court of Appeal of Louisiana, First Circuit.

Oct. 6, 1955.

Rehearing Denied Nov. 22, 1955.

Carroll Buck, Amite, for appellant.

Joseph A. Sims, Hammond, for appellee.

TATE, Judge.

This is a suit to recover damages for personal injuries sustained by a passenger while or immediately after disembarking from defendant's railroad train. Defendant railroad company appeals from judgment awarding $4,993 to plaintiff Hayes.

Hayes, 65 years of age at the time of the accident, testified that he had ridden as paying passenger from New Orleans to Hammond on June 5, 1950, arriving at 9 a. m. Plaintiff's car stopped north of the Hammond depot and of a catwalk across the southbound tracks leading west to the depot. There was a smooth slab walkway between northbound tracks, level with the rails, but elevated about 7 inches above the roadbed. This walkway was for passengers to enter and alight from northbound trains, and it was connected with the main depot west thereof by eight catwalks across the southbound tracks.

The accident happened when (in Hayes' own words on cross-examination at Tr-18) the walkway to the catwalk 'was blocked off there with suitcases, baggage, handbags', and he 'fell just as soon as I [he] made a step to try to get around these handbags. They was in the road.' The bags were 'right, almost against the steps.' He 'started to try to step around them and my foot got hung up in there and throwed me over in the tracks', as a result of which he broke his left arm when it hit the raised slab walkway. Hayes testified that 'plenty' of people got off at Hammond on that day, quite a few before him from the same car, and he thought some after him. He further testified that two railroad porters were standing on the walkway north of his exit from the railroad car.

The two porters testified on behalf of defendant that they remembered Hayes as a passenger who had disembarked and tripped while attempting to cross the southbound track. They testified that he had gotten up and walked away from the scene of the accident without appearing hurt.

No other witnesses testified to the accident. The only other witness was a railroad supervisor testifying as to the Hammond station and traffic. By mutual agreement, medical memoranda were substituted for the testimony of physicians.

Defendant strongly urges that the testimony of its two porters is entitled to greater credibility than that of plaintiff. But the District Court specifically stated that it was 'quite impressed by Mr. Hayes honesty and remembrance of the facts'. Commenting on the 'manner and demeanor' of the two porters compared with that of plaintiff Hayes, the District Court 'had no alternative but to accept the facts as stated by Hayes', and felt that the imagination of the two porters had a great deal to do with their testimony. The appellate court, examining the cold record and two contradictory but apparently equally credible versions of an incident, is manifestly unable to determine which of the witnesses is entitled to belief, as compared with the position of the District Court, which sees and hears all the witnesses, and can observe the hesitancies, flushings, eye shiftings, etc. We must therefore accept the facts as found by the District Court, substantially that the accident occurred as related by plaintiff Hayes.

The applicable law does not seem to be disputed.

"It is well established that a carrier of passengers is not an insurer, but it is required to exercise the highest degree of care, vigilance and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. * * * It is also well established in our jurisprudence that, where a passenger is injured in an accident and has failed to reach his destination in safety, the burden is on the carrier to prove itself free from fault". Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378 at page 380. See Mire v. LaFourche Parish School Board, La.App. 1 Cir., 62 So.2d 541 for a recent case summarizing some later jurisprudence and stating: "* * * the carrier is required to 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 care * * *." 62 So.2d 541, at page 543. (Italics ours.)

As stated at 13 C.J.S. Verbo, Carriers, § 717(2), p. 1338: 'In accordance with its general duty to keep its stational facilities safe, it is the carrier's duty, subject to qualifications as to notice and opportunity to eliminate the danger, to keep the station and platform in good repair and free of defects, obstructions, and other dangerous conditions, and to prevent, and guard passengers against, any customary use of the platform which renders it dangerous.' (Italics ours.)

In the comment below this subheading is the following comment:

'Subject to qualifications as to notice and opportunity to eliminate the danger, it is the carrier's duty to keep the station and platform in good repair and free of dangerous depressions or other defects; to keep the platform free from, or to remove, trucks, baggage, and other obstacles on which passengers are liable to be injured, even though the dangerous obstacles were placed there by another, such as an express company permitted to use the platform for its own purpose; to prevent, and to guard passengers against, another's customary use of the platform which renders it dangerous, such as the acts of postal clerks in throwing mail pouches on the platform from passing trains; and to prevent the creation of, or to remedy, other dangerous conditions.' (Italics ours.)

And at 13 C.J.S. Verbo, Carriers, § 723, p. 1352: 'A carrier is usually required to exercise the highest degree of care to avoid injury to passengers boarding or alighting from the carrier's vehicle.'

See also 10 American Jurisprudence 223, Verbo, Carriers, Section 223: 'Failure upon the part of a common carrier to maintain its platforms and other portions of its premises where passengers will be likely to go reasonably clear of obstructions, obstacles, or other dangerous conditions will render it liable to...