Kendall v. New Orleans Public Service

• Decision Date: 27 March 1950
• Docket Number: No. 19400,19400
• Citation: 45 So.2d 541
• Parties: KENDALL v. NEW ORLEANS PUBLIC SERVICE, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 541

45 So.2d 541

KENDALL v. NEW ORLEANS PUBLIC SERVICE, Inc.

No. 19400.

Court of Appeal of Louisiana, Orleans.

March 27, 1950.

Leopold Stahl, New Orleans, for appellant.

Alvin R. Christovich and Wm. W. Ogden, New Orleans, for appellee.

REGAN, Judge.

Plaintiff, Mrs. Miriam Kendall, widow of John Fred Baringer, brought this suit in the amount of $8,443.14, against the defendant, New Orleans Public Service, Inc., for damages for personal injuries suffered by her, a pedestrian, on June 11, 1948, at the hour of 1:30 p. m. on the sidewalk of Carondelet between Julia and Girod Streets, by virtue of defendant's negligence in that she was violently knocked down by a panic stricken passenger fleeing in fear from the scene of defendant's burning electric trolley car. Plaintiff claims $662.14 for medical expenses, $281 for loss of earnings, etc. and $7,500 for pain, suffering and permanent partial disability to her left arm.

Defendant answered and pleaded that it was not guilty of any negligence, that the fire which occurred was small and of an inconsequential nature, and that the injury which befell plaintiff was not the direct and proximate result of the fire on the electric trolley car.

There was judgment below in favor of defendant, dismissing plaintiff's suit. Hence this appeal.

The erudite trial judge thoroughly analyzed both the facts and the law applicable to this case in his written reasons for judgment which, in our opinion, cover the case so fully that we adopt them as our own.

'Plaintiff seeks recovery of damages for personal injuries sustained by her when, as a pedestrian on the sidewalk, 30 feet away, she was violently run into and knocked down by another person, allegedly a passenger, fleeing in fright from a burning electric street car, owned and operated by defendant.

'Plaintiff is an elderly white woman, about 68, and a school teacher. Undoubtedly she received painful injuries: a fracture of the left humerus involving the neck of the humerus of the left arm with rotation of said humerus in the glenold fossa resulting in 30% residual disability of her left arm. The person who ran into and knocked plaintiff down was a rather hefty colored woman.

'The scene of the accident is Carondelet Street, between Girod and Julia Streets, in New Orleans, on June 11, 1948, about 1:30 P.M. The electric street car was on its way to Canal Street, about eight squares away.

'According to plaintiff and some of her witnesses, the street car came down Carondelet Street like a prehistoric monster, belching fire and brimstone, and sending out a 24 foot flame like a military flame thrower, emitting thick clouds of white smoke and venting sinister hissing and loud explosive noises.

'Plaintiff testified that when she first saw the street car she attempted to seek shelter in the Stephens Auto Company's office located on Carondelet near her, but was prevented from doing so by the Flames which reached the building, which kept her trapped on the sidewalk.

'Plaintiff's electrical engineer (Mr. McDonald) admitted the flame could not have extended more than a foot or two from the street car. It was the flash or reflection, not the flame, that plaintiff saw 24 feet away.

'Defendant's version is that a small fire took place in some of the equipment on the outside of its street car, on the right hand side and underneath, due to a short circuit, causing some smoke to be emitted, accompanied by slight noises; that the car was promptly stopped and the passengers permitted to alight, after which the fire was put out. Defendant denies any negligence on its part, or in any event, any act of its own, negligent or otherwise, was too remote to be the proximate cause of her injury.

'I find that defendant's electric car was on its way to Canal Street on Carondelet Street. Between Girod and Julia streets a fire developed on its right side underneath, caused by a short-circuit. Within thirty feet, more or less, the car was stopped and the passengers permitted to alight. The conductor went through the car to pacify the passengers, about 35 in number, and to assure them there was no cause for alarm.

A few passengers jumped through the windows, but the others left when it stopped, either from the front or rear platforms.

'The short-circuit was at a point between the trolley wire and the circuit breaker, the latter being a mechanical fuse which automatically cuts off the electricity in case of a short-circuit. The short-circuit caused a fire in the junction box under the car, which burned part of the box and the insulation and covering of the wires. Until the trolley was pulled down from the trolley wire, there was an intermittent blue flame, emitting smoke and sparks, likened to the blue flame, flash and sparks resulting from electric welding of street car rails, commonly seen on the streets of New Orleans.

'A short-circuit may result when the motorman feeds electricity too rapidly to the motors. The circuit breaker should cut off the electricity automatically. If the circuit breaker fails to operate, a fire is the inevitable result. Defendant explains that the short-circuit occurred between the circuit breaker and the trolley wire and continued until the trolley was pulled down.

'At the outset, I must state the rule to be that a carrier is not the insurer of its passengers, and certainly not pedestrians, and is liable for injuries to either, only if caused by its negligence in failing to exercise the proper degree of care, skill and diligence for their safety. The use of standard and safe equipment and its periodic inspection and test is all that is required.

'Where a passenger is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. The carrier may rebut the presumption and relieve itself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent. The carrier need only prove its freedom from negligence, not how the accident happened or who or what brought it about.

'A carrier must use the highest degree of care in selecting safe vehicles and equipment for the safety of its passengers, and these vehicles and appliances must be vigilantly and regularly inspected. Jones v. Baton Rouge Electric Co., La.App., 192 So. 539; Martin v. Interurban Transp. Co. Inc., 15 La.App. 256, 131 So. 514; Connor v. Gardner, 230 Ill. 258, 82 N.E. 640, 15 L.R.A., N.S., 79; Roanoke Railway & Electric Co. v. Sterrett, 108 Va. 533, 62 S.E. 385, 19 L.R.A., N.S., 316, 128 Am.St.Rep. 971.

'And one cannot recover for injuries sustained, even admitting negligence of a carrier, unless such negligence was the proximate cause of such injury.

'If the injury to plaintiff was not likely to result from the accident, and was not one which the defendant could have reasonably...