Llorens v. City of Alexandria

• Decision Date: 26 May 1958
• Docket Number: No. 8782,8782
• Citation: Llorens v. City of Alexandria, 106 So.2d 342 (La. App. 1958)
• Parties: Leo LLORENS et ux., Plaintiffs-Appellants, v. CITY OF ALEXANDRIA et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 342

106 So.2d 342

Leo LLORENS et ux., Plaintiffs-Appellants, v. CITY OF ALEXANDRIA et al., Defendants-Appellants.

No. 8782.

Court of Appeal of Louisiana, Second Circuit.

May 26, 1958.

On Rehearing Oct. 30, 1958.

Shapiro and Shapiro, Alexandria, for plaintiffs-appellants.

Stafford and Pitts, Alexandria, for defendants-appellants.

AYRES, Judge.

In this action a fare-paying passenger on a bus of the defendant, City of Alexandria, seeks to recover damages for personal injuries, pain and suffering and for permanent disability allegedly sustained in an accident of October 10, 1956. The plaintiffs are the passenger, Lillian Llorens, and Leo Llorens, her husband. The latter, as head and master of the community of acquets and gains existing between him and his wife, seeks recovery of the hospital and medical expenses incurred as a result of the injuries sustained by his wife. The defendants are the City of Alexandria and its insurer, United States Fidelity and Guaranty Company.

The accident was allegedly caused by the sudden starting of the bus with a severe jerk, which caused plaintiff, Lillian Llorens, to be thrown backwards from a standing position taken by her to signal her intention of departure at the next street intersection. She was allegedly thrown into her seat, twisting her knee and dislocating the patella. The defendants deny any unusual movement of the bus and contend that plaintiff, while standing, merely lost her balance and fell backward into her seat.

After trial, plaintiff, Lillian Llorens, was awarded $1,500 as compensation for her pain, suffering and disability. The husband was awarded $132 for medical expenses incurred and $100 for anticipated future medical expenses. From the judgment plaintiffs appealed, contending the awards were inadequate and praying that they be increased. Defendants appealed, denying liability and, in the alternative, contending that the awards were excessive and should be reduced.

Defendants concede the occurrence of the accident but contest the manner in which it allegedly occurred. The record discloses that on the morning of the accident, plaintiff, Lillian Llorens, boarded the bus to go to the City Hall to pay utility bills. She occupied a seat in the rear of the bus opposite the rear door, after which the bus proceeded in a westerly direction along Fourth Street and, on arriving at the intersection with Johnson Street, stopped to discharge passengers. Plaintiff's version is that, after the passengers were discharged and the door closed but before the bus started up again, she stood, holding the back of the seat with her right hand, and reached for the cord to signal her intention to leave the bus at the next stop, whereupon the bus suddenly started with a jerk, causing her to be thrown backward into her seat and twisting her left knee and dislocating the patella thereof; that she quickly grasped her knee, pulled it back into place, and gave an outcry of her pain and distress. The bus driver, who was hard of hearing, not having seen the accident himself, was informed thereof by another passenger calling to him, whereupon the bus was stopped in the middle of the block and the driver inquired of plaintiff as to the occurrence and nature of her injury, as well as her name and address. Although plaintiff informed the driver she had fallen and hurt her knee, he was not impressed with the seriousness of the injury sustained. Plaintiff, however, remained on the bus until it reached DeSoto Street, two blocks from the scene of the accident, where she departed and secured a taxi to convey her home.

As to the occurrence of the accident and the manner in which it happened, only two witnesses testified, the plaintiff, Lillian Llorens, and the bus driver, L. L. Lemoine. The version of the accident as given by the plaintiff is contradicted by the driver, who testified there was no sudden or unusual jerk or movement of the bus in starting from its stop at the intersection of its route with Johnson Street. His driver's report of the accident, however, discloses there were eight passengers on the bus at the time, whose names and addresses the driver did not secure, and none were called as witnesses by either plaintiffs or defendants because, from plaintiffs' standpoint, they were unable to secure the names and addresses of such persons, although due diligence was used to locate them, even through an advertisement in a local newspaper. Therefore, the only evidence in refutation of plaintiff Lillian Llorens' testimony is that of the motorman himself.

The facts of the instant case are remarkably similar to the facts in Wallace v. Shreveport Railways Company, La.App., 175 So. 86. There plaintiff made it certain she fell because she lost her balance by the car starting up with an unusual forward motion or jerk. She, as the plaintiff here, had ridden on the defendant's cars and/or buses and was well acquainted with their movements after coming to a stop and discharging or taking on passengers. There it was held she had established by her own testimony a prima facie case of negligence against defendant by showing that she was a paid passenger on its car and was injured thereon. The burden of proof, after a prima facie showing, strictly speaking, did not shift but it did then devolve upon defendant to adduce proof of lack of negligence on its employee's part sufficient in probative weight to overcome plaintiff's case, if it would escape liability for damages to its passenger. 10 C.J., Carriers, § 1424, p. 1021--1022; 13 C.J.S. Carriers § 764d, p. 1448--1451. The latter authority states the general rule as follows:

'The maxim, Res ipsa loquitur, which is recognized to some extent in the proof of negligence in general, applies to common carriers, and is of peculiar application in actions for simple negligence against carriers of passengers, such as railroad or street railroad companies, and in a number of cases the rule has been broadly stated that the happening of an accident to the passenger, at least where it appears to have occurred without fault on his part, gives rise to a presumption of negligence on the part of the carrier, so that The passenger makes out a prima facie right to recover for personal injuries received during transportation, by proof that he was at the time of receiving the injury a passenger, that an accident occurred, and that his injury resulted therefrom, and thereby casts on defendant the burden of rebutting such presumption.' (Emphasis supplied.)

This general rule has been followed in numerous decisions of the Supreme and appellate courts of this State, including, to mention only a few of the later decisions, the following: Wallace v. Shreveport Rys. Co., La.App., 175 So. 86; Buswell v. Missouri Pacific Transp. Co., La.App., 184 So. 399; Thomas v. Shreveport Rys. Co., La.App., 187 So. 822; Owens v. Monzingo, La.App., 191 So. 581; Jones v. Baton Rouge Electric Co., La.App., 192 So. 539; Gonzales v. Toye Bros. Yellow Cab Co., La.App., 198 So. 379; Anderson v. City of Monroe, La.App., 2 So.2d 499; Valdry v. Baton Rouge Bus Co., Inc., La.App., 5 So.2d 173; McFarland v. City of Monroe, La.App., 11 So.2d 19; Grant v. Baton Rouge Bus Co., Inc., La.App., 15 So.2d 123; Bailey v. Owen, La.App., 19 So.2d 299; Creech v. Shreveport Rys. Co., La.App., 43 So.2d 295; Kendall v. New Orleans Public Service, Inc., La.App., 45 So.2d 541; Hopper v. Shreveport Rys. Co., La.App., 51 So.2d 845; Baker v. Shreveport Rys. Co., La.App., 68 So.2d 228; Hayes v. Illinois Central Railroad, La.App., 83 So.2d 160; Harris v. Shreveport Rys. Co., La.App., 83 So.2d 517.

The rule was early announced by the Supreme Court through Justice Taliaferro in Julien v. Captain and Owners of Steamer Wade Hampton, 27 La.Ann. 377, that:

"Common carriers are bound to carry their passengers safely and securely, and to use the utmost care and skill in the performance of their duties.' * * * 'And, of course, they are responsible for any, even the slightest, neglect.' * * * 'The burden of proof is on the defendants to establish that there has been no disregard whatever of their duties, and that the damage has resulted from a cause which human care and foresight could not prevent."

This holding has been definitely adhered to in a long line of cases, of which the following are some of the most prominent early decisions: Patton v. Pickles, 50 La.Ann. 857, 24 So. 290; Le Blanc v. Sweet, 107 La. 355, 31 So. 766, 90 Am.St.Rep. 303; Lehman, Stern & Co., Ltd., v. Morgan's Louisiana & Texas R. & S.S. Co., 115 La. 1, 38 So. 873, 70 L.R.A. 562, 112 Am.St.Rep. 259, 5 Ann.Cas. 818; Spurlock v. Shreveport Traction Co., 118 La. 1, 42 So. 575; Haynes v. Louisiana Ry. & Nav. Co., 140 La. 1019, 74 So. 538; Hopkins v. New Orleans Railway & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362.

But, as pointed out by this court in Wallace v. Shreveport Railways Company, supra, the rule announced in the Julien case was modified in Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376, 377, to the extent that, in establishing its freedom from negligence as a cause of the breach of the contract of carriage, it was not necessary for the carrier to affirmatively prove the exact...