Patton v. Pickles

• Decision Date: 18 April 1898
• Docket Number: 12,561
• Citation: Patton v. Pickles, 50 La.Ann. 857, 24 So. 290 (La. 1898)
• Court: Louisiana Supreme Court
• Parties: GEORGE F. PATTON v. THOMAS PICKLES

24 So. 290

50 La.Ann. 857

GEORGE F. PATTON v. THOMAS PICKLES

No. 12,561

Supreme Court of Louisiana

April 18, 1898

Argued March 11, 1898

APPEAL from the Civil District Court for the Parish of Orleans Theard, J.

O. B Sansum, for Plaintiff, Appellee.

Frank E. Rainold, Frank N. Butler and Bernard McCloskey, for Defendants, Appellants.

OPINION

NICHOLLS C.J.

The defendant, Thomas

Pickles, has held for many years, under contract with the city of New Orleans, the franchise for ferrying passengers, wagons, etc., from the foot of Canal street, on the left bank of the Mississippi river, to Algiers, on the opposite side of the same stream, and from Algiers to the city of New Orleans.

Passengers intending to cross from Algiers to Canal street pass first into a large room erected upon the river bank, from which, through a door opening toward the river, they pass upon an inclined iron bridge or gangway leading down from the ferry house to a pontoon bridge below.

This pontoon bridge rises and falls with the rise and fall of the Mississippi river. It is moored alongside of a line of piling which receives the push or shock of the ferry boat as it lands against the pontoon. The iron inclined bridge passes between some of the pilings, but its outer edge is not intended to pass beyond the outer edge of the piling. The immediate connection between the iron bridge and the pontoon is by means of an apron which is expected to slide as occasion requires. At the entrance of the ferry house on the shore side is a turning stile through which passengers pass, one by one, paying their fare as they pass through. It is furnished with a check, which being applied, prevents any one from entering the room.

Wagons and vehicles about to be crossed go through a side gate upon a wagon gangway leading down to the pontoon bridge. There is no connection between this gangway and the iron bridge. On the night of the 19th, or the morning of the 20th of October, 1895, a disastrous fire occurred in Algiers, which attracted during that day to the latter place very large crowds, the number being estimated to be between ten and fourteen thousand persons. While numbers returned to the city, a very large number remained on the Algiers side until nearly dark, when they commenced crowding to take passage back upon the ferry boat. Among the persons so returning at that time were the wife of the plaintiff and her son, a boy about ten or eleven years old. They paid their fare at the turning stile and passing through the ferry room, went out for several feet upon the iron bridge. The lower part of the bridge was then crowded with persons, while others continued to pass out upon the upper portion from behind through the ferry room. The situation was such as to make it difficult for Mrs. Patton and her child to return. They attempted to do so, but before they could pass into the ferry house, the iron bridge broke at about its middle point and precipitated her into the river.

She received painful injuries from her fall, and contracted from her wet clothing a serious attack of bronchitis. Defendant, on appeal, maintains that judgment was erroneously rendered in plaintiff's favor for damages for her injuries so received.

The syllabus of defendant's brief is as follows:

1. "Plaintiff proved that the bridge, belonging to defendant leading from the waiting room of the ferry house to the pontoon or floating wharf, broke, and she was injured thereby. No negligence of any kind is proved and the court is asked to presume negligence from the mere fact of accident, and likewise to presume that the plaintiff was not guilty of contributory negligence.

2. No such presumption can arise in favor of a person except he is being passively conveyed in the vehicle of a common carrier. While the passenger is on the platform, bridge, in the station house, or any other portion of the premises of a common carrier, moving from place to place of his own volition, the carrier occupies toward him the precise relation of any other owner of real estate toward the customer who comes upon his premises. If he is injured, in order to recover damages he must prove negligence on the part of the carrier and likewise prove that he was free from contributory negligence. Thompson's Carriers of Passengers, pages 104, 209, 214.

3. The burden of proof is therefore upon the plaintiff to establish negligence, but (ex industria) defendant has proved that he was in no wise negligent. He proved that the bridge which collapsed was built according to plans and specifications which were approved by the City Surveyor; that he was the proper officer to approve the same, being designated as such by the contract. That said plans called for the construction of a bridge calculated to carry one hundred pounds to the square foot with a factor of safety of six, and a bridge of this character is strong enough to sustain the dead weight of all persons who could stand upon it. That it was constructed by bridge builders of national repute, and finally, when the bridge was completed, it was inspected and approved by the city surveyor as being in accordance with plans and specifications; that it was likewise proved that the bridge was only eight years old and had in no manner deteriorated in strength, the bridge being of iron. That in regard to the bridge the defendant exercised all the care and diligence that human foresight and the experience of twenty years as lessee of the public ferries could suggest; that it was proved that an extraordinary and unforeseen event caused nearly fourteen thousand people to cross the ferry on that day, three times as many as had ever crossed on a single day. That the crowd in attempting to get home from Algiers became excited and uncontrollable; that they rushed into the ferry house, some paying fares and others not; that the attempt of the superintendent to control the mob was futile; that they crowded, pushed and jammed themselves upon the bridge in their anxiety to get home before dark, and this crowd, of which plaintiff's wife was a part, broke the bridge. That the experience of defendant for twenty years as lessee of the ferries had not led him to anticipate such a crowd and he had no reason to believe that the passengers would behave in so unreasonable a manner.

That every precaution suggested by an extended and practical experience was exercised by the superintendant upon the occasion. That the lessee was himself at the time sick in bed of the disease of which he ultimately died.

4. Ferry companies are not insurers of the absolute safety of passengers, either while coming on board the ferry boats, or while going ashore therefrom, nor are they bound to guard against probable accidents which could not reasonably be foreseen. Their duty is to furnish accommodations for the receiving and landing of passengers, which are reasonably sufficient for their purpose and for the protection of persons using the means provided in a reasonable way. (Blackman vs. London, etc., R. Co., 17 W.B. 769; Riggs vs. Manchester, etc., R. Co., 12 Jur. (N.S.) 525; Cornman vs. Eastern Counties R. Co., 4 H. & N. 781; Crafter vs. Metropolitan R. Co., L.R., 1 C.P. 300; Dougan vs. Chaplain, Tr. Co., 56 N.Y. 1; Crocheran vs. North Shore, etc., Ferry Co., Id. 656; reversing 1 N.Y.S. Ct. (T. & C.) 446; Cleveland vs. New Jersey Steamboat Company, 68 N.Y. 306.) It is not enough to make out a case of negligence to suggest that additional precautions would have prevented the accident. Loftus vs. Union Ferry Company, 22 Hun. 33, granting new trial after verdict for plaintiff. Dyer vs. New York, L.E. & W. Ry. Co., 7 Atlantic Reporter, Vol. 7, p. 417; 138 N.Y. Court of Appeals, 647. Amer. and Eng. Encyclopedia of Law, Vol. 2, p. 804; Vol. 7, p. 949, par. 4."

Defendant quotes the New York Court as saying in Cleveland vs. The New Jersey Steamboat Co. that: "A carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected (56 N.Y. 1; 52 N.Y. 32, 656). Hence his duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it." (Bowen vs. N.Y. Central R.R. Co., 18 N.Y. 408.)

He quotes the same court in Loftus vs. Union Ferry Company of Brooklyn, 84 N.Y. 460, in which it said:

"We think this case is governed by the cases of Dougan vs Chaplain Trans. Co., 56 N.Y. 1; Cochran vs. North Shore Staten Island Ferry Co., Id. 656; and Cleveland vs. New Jersey Ferry Co., 68 N.Y. 306. The defendant was bound "to provide suitable and safe accommodations for the landing of passengers." The rule of the strictest diligence in this respect is the only one consistent with a due regard to the value of human life and with the relation which the defendant assumed to the public. But the rule does not impose upon the defendant the duty of providing for the safety of its passengers, that they shall encounter no probable dangers and meet with no casualty in the use of the appliances provided by it. It was possible for the defendant so to have constructed the guard that such an accident as this could not have happened."

"If defendant ought to have foreseen that such an accident might happen, or such an accident could reasonably have been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years certifying to the efficiency of the guard. That it was possible for a child, or even a man to get through the opening was apparent enough, but that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty. If the...