Sanders v. New Orleans Public Service, Inc.

• Decision Date: 02 November 1982
• Docket Number: No. 13269,13269
• Citation: 422 So.2d 232
• Parties: Dondra SANDERS v. NEW ORLEANS PUBLIC SERVICE, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 232

422 So.2d 232

Dondra SANDERS v. NEW ORLEANS PUBLIC SERVICE, INC.

No. 13269.

Court of Appeal of Louisiana Fourth Circuit.

Nov. 2, 1982.

Robert L. Manard, III, Manard, Schoenberger & Ryan, New Orleans, for plaintiff-appellee.

James Maher, III, New Orleans, for defendant-appellant.

Before KLEES, BYRNES and WARD, JJ.

KLEES, Judge.

Defendant, New Orleans Public Service, Inc., (NOPSI), appeals from a judgment awarding damages to plaintiff, Dondra Sanders, sustained while she was a fare-paying passenger on defendant's bus.

The issues presented on appeal are (1) whether the actions of the plaintiff should bar her recovery under the theories of contributory negligence and/or assumption of the risk; and (2) whether the award rendered to her for general damages is excessive.

On May 9, 1979, plaintiff was returning home from school on a NOPSI bus. As the bus proceeded on its route, it made some sudden, "jerky" stops as well as other normal service stops. As the bus approached the plaintiff's service stop, she stood up in the aisle, braced herself, and prepared to disembark. The bus came to another "jerky" stop and the plaintiff was thrown to the front of the bus where she sustained her injury.

She was examined and treated for her injuries by Dr. Joseph Braud in the Flint-Goodridge Hospital emergency room. This examination took place on the day of the accident and revealed that the plaintiff had sustained a lumbosacral strain; i.e., a strain in the lower back. Plaintiff was again examined by Dr. Braud the day after the accident, and from then through June 4, 1979, she received treatment in his office on numerous occasions. On June 4, 1979, she was discharged by Dr. Braud.

On September 19, 1980, after complaining of intermittent pain and stiffness in her back, plaintiff went to see Dr. Stuart Phillips, an orthopedic specialist. Dr. Phillip's basic diagnosis was that the plaintiff had suffered a lumbar strain and, as a result of the healing process, the lumbar region had scar tissue. At trial he testified that when muscles and ligaments with scar tissue are used "a lot", pain results. The doctor concluded that the plaintiff will experience some pain during extreme activity the rest of her life.

The trial court found NOPSI negligent and, after considering the medical testimony, it rendered judgment in favor of the plaintiff for $4,828.00 including $578.00 for medical expenses.

Our review of the pleadings show that defendant NOPSI answered plaintiff's suit with a general denial and specifically pled the defense of sudden emergency.

LSA-C.C.P. Article 1005 requires that the answer set forth any affirmative defenses on which a party will rely. Defendant's answer failed to set forth the defense of contributory negligence or assumption of risk.

"However, the rule pertaining to an automatic amendment of the pleadings does apply when evidence of an affirmative defense is adduced without objection from the opposing party. Our Supreme Court in DLJ of Louisiana # 1 v. Green Thumb, Inc., 376 So.2d 121 (La.1979), recognized this in Footnote 9 on page 122, where the Court stated:

'... Generally, affirmative defenses must be raised in the answer of the defendant, see La.Code Civ.P. art. 1005, and cannot be raised by the court sue sponte. Where, however, an affirmative defense has not been pleaded by the defendant but the plaintiff nevertheless fails to object to the introduction of evidence that bears on the affirmative defense and that is not pertinent to any issues raised in the pleadings, the pleadings have been considered to have been enlarged to include the affirmative defense, and the court can act as though the affirmative defense has been pleaded. See Austrum v. Baton Rouge, 282 So.2d 434 (La.1973).' " Independent, Inc., v. Watson 394 So.2d 710 (La.App. 3rd Cir.1981).

Here there was no objection made to the evidence pertaining to these defenses either at trial or in brief before this court. Thus we will consider these issues.

Contributory Negligence

A carrier is required to use the highest degree of care, diligence, and skill and is liable for the slightest negligence or lack of care, which results in injuries to its passengers; but the passenger must not contribute to his injuries by any want of ordinary care on his part. Gaines v. Aetna Casualty & Surety Co., 110 So.2d 851 (La.App. 1st Cir.1959). As in the case before us, contributory negligence by the plaintiff would bar her recovery despite the high degree of care owed by a carrier.

Contributory negligence is objectively determined under the reasonable man standard. Mc Innis v. Fireman's Fund Insurance Co., 322 So.2d 155 (La.1975). The victim is required only to use reasonable precautions, and his conduct in this regard is not negligent if, by a common-sense test, the conduct is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978).

The record reveals that the plaintiff did use reasonable precautions after leaving her seat. She grasped a pole behind her seat and also braced her feet in preparation for the stop of the bus. Counsel for defendant argues that despite these precautions, plaintiff was contributorily negligent because she should have waited for the bus to completely stop before leaving her seat. This logic is contrary to the common-sense test enunciated in Dupas, supra, and contrary to our jurisprudence. In Tomasik v. Shreveport, 98 So.2d 554 (La.App. 2nd Cir.1957), a plaintiff, who arose from his seat to disembark at the next service stop, walked to the front of the trolley supporting himself by holding a...