Schneider v. New Orleans & C.R.R., 12,162.

• Decision Date: 08 March 1893
• Docket Number: 12,162.
• Citation: 54 F. 466
• Parties: SCHNEIDER v. NEW ORLEANS & C.R.R.
• Court: U.S. District Court — Eastern District of Louisiana

54 F. 466

SCHNEIDER v. NEW ORLEANS & C.R.R.

No. 12,162.

United States Circuit Court, E.D. Louisiana.

March 8, 1893

E Howard McCaleb, for plaintiff.

John M Bonner, for defendant.

BILLINGS District Judge.

This case is submitted upon the petition and exception of no cause of action. The suit is for violation of defendant's obligation as a carrier, in not carrying plaintiff safely upon a car operated by electricity. She avers that she was injured by her arm coming in contact with a post erected by the defendant in connection with the new 'trolley' system,-- the alleged fault in the erection of the post being that it was placed too near the car; and an additional fault is alleged in the construction of the switch. The position taken by the defendant in the attempt to maintain its exception is that the plaintiff having averred in her petition that she rested her arm upon the window sill, the window being open, she was averred negligence. The cause of the accident seems to have been contact with the trolley post. The negligence of the defendant is charged to have been too close proximity of the post to the car, and a badly constructed switch, whereby the post came in contact with the plaintiff's arm. The averment of the plaintiff is as follows:

'That the weather was warm, and the windows in said car were raised and open when the petitioner got in and took her seat, and afterwards she rested her arm upon the window sill.'

The defendant is averred to be a corporation operating a street railway through and over the streets of the city of New Orleans. The question presented by the exception is: Is it negligence, per se, for the plaintiff, who was a passenger upon a street-railway car, to rest her arm upon the sill of a window which was open?

It is not necessary to consider whether it would, in law, make any difference if the car had been a steam-railway car; for the authority upon which I shall decide the question was a decision where the injured party was a passenger upon the latter, and the passenger upon a street car would be held to certainly no greater degree of caution. The supreme court of Louisiana have decided that it was not contributory negligence in a plaintiff who, when a passenger upon a street-railway car, 'rested his arms upon the sill of an open window, out of which his elbow projected a few inches. ' Summers v. Railroad Co., 34 La.Ann. 139. It is to be observed that the Summers Case goes further than this case, for not only was the arm resting upon the sill, but the elbow projected a few inches. In Railway Co. v. Underwood, (Ala.) 8 South.Rep. 116, (page 117,) the cases are collated by the court, and the court are of opinion that the weight of authority is contrary to the Summers Case. The opinion in the Summers Case was delivered by one of the most learned judges who have sat on our supreme bench, Mr. Justice Fenner. It was with reference to street cars, and the ground of the decision is that street-railway companies were bound to know the habits of passengers; and where those habits here consistent with safety, provided the carrier had used the precautions usual and easily possible, the...