Reems v. New Orleans G. N. R. Co

• Decision Date: 06 June 1910
• Docket Number: 18,107
• Citation: 52 So. 681,126 La. 511
• Court: Louisiana Supreme Court
• Parties: REEMS v. NEW ORLEANS G. N. R. CO

52 So. 681

126 La. 511

REEMS v. NEW ORLEANS G. N. R. CO

No. 18,107

Supreme Court of Louisiana

June 6, 1910

Appeal from Civil District Court, Parish of Orleans; Walter B Sommerville, Judge.

Action by Philip F. Reems against the New Orleans Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Farrar Jonas, Goldsborough & Goldberg, for appellant.

Buck Walshe & Buck, for appellee.

OPINION

LAND J.

This is a suit for damages for personal injuries sustained by the plaintiff while a passenger on one of defendant's trains.

Defendant appeals from a verdict and judgment in favor of the plaintiff in the sum of $ 4,500, with interest and costs.

That the plaintiff, a passenger, was injured by the derailment of defendant's train, is clearly shown by the evidence.

The real defense is that the accident happened without the fault or negligence of the defendant.

The evidence shows that, while the train was running at the rate of 30 miles per hour, the truck of the tender left the rails. The tender and the first coach were wrecked, and the track at the place of the accident was torn and damaged.

The burden of proof is on the carrier to show why the contract of safe carriage was not fulfilled. Spurlock v. Traction Co., 118 La. 4, 42 So. 575; Le Blanc v. Sweet, 107 La.Ann. 355, 31 So. 766, 90 Am. St. Rep. 303.

In Patton v. Pickles, 50 La.Ann. 865, 24 So. 290, this court affirmed the doctrine that, in a case like this, the defendant is bound to show that the inexecution of the contract resulted from accidental and uncontrollable events. Civ. Code, § 2754. Thompson on Carriers of Passengers, p. 210, expresses the common-law rule as follows:

"In other words he must show, in order to rebut the presumption, that the accident resulted from circumstances against which human care and foresight could not guard."

The evidence adduced by the defendant fails to show the cause of the accident, and, in the absence of such explanation, the court is unable to say that the accident resulted from circumstances against which human care and foresight could not guard. Trucks do not leave the rails without some physical cause, such as defects in the trucks, or in the track, or some fault in the operation of the train.

A number of other passengers were injured in the same wreck, and one of them testified, without objection, that defendant had settled with him for his injuries, and had attempted to make a like settlement with the plaintiff.

The remaining question is as to the quantum of damages, which the defendant contends is manifestly excessive. The...