Hopkins v. New Orleans Railway & Light Co

• Citation: 90 So. 512,150 La. 61
• Decision Date: 02 January 1922
• Docket Number: 23274
• Parties: HOPKINS v. NEW ORLEANS RAILWAY & LIGHT CO
• Court: Louisiana Supreme Court

90 So. 512

150 La. 61

HOPKINS v. NEW ORLEANS RAILWAY & LIGHT CO

No. 23274

Supreme Court of Louisiana

January 2, 1922

[Copyrighted Material Omitted]

Original Opinion of January 3, 1921, Reported at 150 La. 61.

LAND J. MONROE, C. J., dissents.

OPINION On Rehearing.

LAND, J.

Plaintiff, the widow of Charles Hopkins, has instituted this suit to recover from defendant company damages in the sum of $ 50,000 for personal injuries alleged to have been received by her through the negligence of said company; said damages being itemized as follows:

"For pain and suffering $ 20,000; for loss of earning capacity, $ 6,500; permanent disability, $ 23,500."

On the morning of September 13, 1916, plaintiff was a passenger on a Spanish Fort train on her way to Adams avenue, where she was going to deliver some fancywork to a customer. Plaintiff alleges:

"That as said train approached Adams avenue the conductor passed through the trailer where she was seated and called out that the next stop was Adams avenue, and that he went into the car ahead; that said train was stopped at Adams avenue, and, as petitioner approached the platform, she noticed that it was congested by a passenger standing on the right-hand side, and a large fishing basket was in front of him, leaving but a small space through which petitioner had to pass, and that petitioner, was prudent and careful as she went by, but as she put her right foot from the platform onto the step of said car, and was about to put the other foot to the ground, the lower right-hand side of her dress, just above the hem, caught in the basket, and the lower portion thereof wrapped around her ankles, causing a sudden jerk which threw her heavily to the ground, which had been shelled for a walk, injuring her severely on the right side of the neck, shoulder, chest, and hip; that the conductor had no right to thus permit the platform to be obstructed, and he was in the car ahead and did nothing to assist petitioner to alight, although he knew that the basket and the passenger had obstructed the platform, and he permitted it to be done with his sanction as aforesaid."

Defendant company denies all the allegations of plaintiff's petition, but avers:

"That on the 13th of September, 1916, between 8:30 and 9 o'clock a.m., a lady who gave her name as Mrs. A. Hopkins was a passenger on a Spanish Fort train, and, as said train stopped at Adams avenue and West End boulevard, the said Mrs. Hopkins alighted therefrom; that, after she had stepped from the car to the ground, she fell, sustaining some slight injury to her right side."

Further answering, respondent avers:

"That at the time the said Mrs. Hopkins fell the train was at a stop, and respondent had no knowledge of what caused the fall, but believes, and, believing, so charges, that the fall was due to the awkwardness of the passenger, or to her failure to take proper care in looking where she stepped, or to some other cause over which respondent had no control, and for which it is in no way responsible."

The case was tried by jury, which returned a verdict for defendant. We think, however, that but little, if any, weight should be attached to the verdict of the jury in this case, under the circumstances. The charge of the court was couched in the most general terms. It failed to define the duties of a carrier to a passenger, and erroneously instructed the jury that the burden of proof was on the plaintiff, the passenger, which would necessarily include the burden of proving that plaintiff was a passenger, that she was injured, and that she was without fault; and this too, in face of the special defense set up by defendant company in its answer that plaintiff was injured by a fall after she had alighted from the car.

The charge stated to the jury that the case apparently resolved itself into a question of fact. Standing out in bold relief is the statement in the charge:

"The fact that a fishing basket was on the platform of the car, in full view, is not of itself negligence on the part of the railway company."

When the jury, after deliberating on the case, returned for further instructions, the general charge was re-read to them, and, after its conclusion, one of the jurors inquired of the court whether the presence of the basket on the platform of the car constituted contributory negligence on the part of the defendant. The court in reply stated that of itself it did not constitute negligence on the part of the defendant.

The jury evidently were led to believe, from this instruction thrice repeated, without further explanation, that defendant company was not guilty of negligence, although the testimony shows that the conductor was aware of the presence of this fishing basket and its proximity to the door through which passengers had to alight.

The court delivered no charge to the jury as to the plain duty of defendant company to keep its aisles and platforms clear so as to permit passengers to pass out of the cars with safety. The jury evidently were misled by the charge, because of its failure to give the law of the case fully, as should have been done.

Reduced to the simplest form, the rule may be stated to be that the carrier --

"is bound to exercise the strictest diligence, in receiving a passenger, conveying him to his destination, and setting him down safely, that the means of conveyance employed and the circumstances of the case will permit.

"There is a broad difference, it may be remarked, between the obligation of a carrier to a passenger and his obligation to a third person complaining of a tort; the burden of proof in the latter case, save where otherwise provided by statute, resting upon the complainant to establish both the injury and the negligence which caused it; whereas, * * * it is sufficient * * * for the passenger suing on a contract for" safe passage "to establish the contract and to show that he has not been safely set down at his destination," to throw the burden of explanation on the carrier. It is then for the carrier, and not the passenger, to show what negligence and whose prevented the fulfillment of the contractual obligations of the carrier." Le Blanc and Wife v. Daniel Sweet et al., 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Am. & En. Enc. of Law (2d Ed.) vol. 5, p. 558; Lehman v. R. R. Co., 37 La.Ann. 705; Turner v. V., S. & P. R. R. Co., 37 La.Ann. 648, 55 Am. Rep. 514; Summers v. C. C. R. R. Co., 34 La.Ann. 139, 44 Am. Rep. 419; Peniston v. R. R. Co., 34 La.Ann. 777, 44 Am. Rep. 444; Julien v. Captain and Owner of Steamboat Wade Hampton, 27 La.Ann. 377; Patton v. Pickles, 50 La.Ann. 857, 24 So. 290; Moses v. R. R. Co., 39 La.Ann. 649, 2 So. 567, 4 Am. St. Rep. 231.

In Patton v. Pickles, 50 La.Ann. 857, 24 So. 290, referring to the relations between a common carrier and its passengers, this court said:

"The contract between the parties is one which from time immemorial has imposed upon the obligor exceptionally severe obligations. Safe carriage is not merely an incident of the contract, but it is its very direct object."

Again, in the case of Clerc v. Railroad & Steamship Co., we said:

"We do not think that a railroad company can by its own act or that of one for whose acts it is responsible itself injure one of its passengers, and then throw upon him the obligation of disproving contributory negligence," barring him from recovery of damages.

"In such a case the carrier must establish affirmatively the acts on the part of the passenger which it claims brings him under the operation of the rule of contributory negligence; barring him from recovery of damages. Kennon v. Railroad Co., 51 La.Ann. 1599, 26 So. 466; * * * Lampkin v. McCormick, 105 La. 418, 29 So. 952; and Kird v. New Orleans & N.W. Railroad Co., 105 La. 226, 29 So. 729. See Chaffee v. Boston & L. Railroad Corp., 104 Mass. 108; Hempenstall v. New York C. & H. Railroad Co., 82 Hun, 285, 31 N.Y.S. 479; Archer v. New York, N. H. & H. Railroad Co., 106 N.Y. 589, 13 N.E. 318; Fett. Carr. Pass. §§ 127, 130, 151."

107 La. 370, 31 So. 886, 90 Am. St. Rep. 319.

"The negligence of a common carrier in carrying the passengers includes his negligence in all of the departments of his undertaking," and "in everything, indeed, necessary to the safety of the passenger when he himself is not at fault."

Clerc v. Railroad & Steamship Co., 107 La. 370, 31 So. 886, 90 Am. St. Rep. 319.

It is not within the power of a passenger to prevent either congestion of passengers on the platform of a coach or its obstruction by baskets, bundles, or other objects. This responsibility rests upon the carrier alone. It is his duty to furnish a safe and unobstructed exit from his cars to the passenger.

The defendant company in its answer does not charge that plaintiff was injured by any fault of her own by failing to exercise ordinary care or prudence in alighting from its car, but merely avers that she was injured by a fall after she had stepped from the car to the ground, and "that defendant had no knowledge of what caused the fall, and, believing, so charges, that the fall was due to awkwardness of the passenger, or to her failure to take proper care in looking where she stepped, or to some other cause over which respondent had no control and for which it is in no way responsible," all of which is purely conjectural as to any good reason for her falling at all, after she had alighted from the car.

In our former opinion we say:

"There is nothing in the record to show that the condition of the ground on which she landed was such as was calculated to cause her to fall; while the reasons and circumstances which she details would appear, if true, to lead naturally to the result which she claims."

In addition to this the severe...