Scott v. Vicksburg, S. & P. Ry. Co
| Decision Date | 30 January 1922 |
| Docket Number | 22929 |
| Parties | SCOTT v. VICKSBURG, S. & P. RY. CO |
| Court | Louisiana Supreme Court |
Appeal from Sixth Judicial District Court, Parish of Ouachita; Ben C. Dawkins, Judge.
Action by Eugene Scott against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiff, and defendant appeals, and plaintiff answers, praying for increase in award.
Judgment appealed from set aside, plaintiff's demand rejected, and suit dismissed at plaintiff's cost.
Stubbs Theus, Grisham & Thompson, of Monroe, for appellant.
John M Munholland, of Monroe, for appellee.
An opinion prepared in this case by the late Chief Justice was not finally passed on, owing to the change in the composition of the court, and the case was reset for argument, and has been reargued and resubmitted. As the said opinion covers the case completely,and appears to be correct, we now adopt it as that of the court. It is as follows:
Plaintiff claims $ 5,000 as damages for personal injuries alleged to have been sustained through the negligence of defendant and its agents, and, having obtained judgment for $ 1,500, defendant has appealed and he (plaintiff) has answered, praying that the amount of the award be increased to that claimed. The circumstances under which the injuries are said to have been sustained and the particular negligence to which they are attributed are set forth in the petition, as follows:
"And that on the 17th day of November, 1914, your petitioner bought one first-class ticket from Delhi * * * to Monroe, * * * and proceeded to the passenger depot * * * in Delhi * * * for the purpose of entering the west-bound train, due about 5 or 6 o'clock p. m.; * * * that it was dark and the depot grounds were insufficiently lighted; that a lot of empty box cars were standing between the depot and the place where the forward end of the day coach stopped for the purpose of putting off and taking on passengers; that * * * petitioner was present at the time the passenger train * * * came into said station, and took a position within a few feet of the front platform of the day coach, * * * awaiting his time and the invitation * * * to enter; * * * that, after the passengers had gotten off the train the flagman * * * called, 'All aboard,' and * * * petitioner, standing close to said platform, proceeded to step upon the step box and * * * thence to the step of the platform of the said * * * coach, and in so doing put his left foot upon the train box, caught the left handhold on the corner of the platform, and, as he threw his weight on his left foot on the aforesaid box, he felt it slip and give way under his foot, and while bringing his right foot up it hung under the cover of the box, at which juncture and while in this predicament he was unlawfully and negligently interfered with by the flagman, and as he reached for the handrail on the corner of the coach with his right hand, but before he could grasp it, the flagman forcibly shoved him on his right elbow, at which juncture, and by reason of the insecurity of the step box and the interference of the flagman, your petitioner was forcibly thrown to the ground, by which fall he was rendered unconscious, and did not regain consciousness until carried home."
He then describes his sufferings and the results of his injuries and proceeds as follows:
"That all of this is due to the wanton and willful negligence of the defendant in not providing a safe and suitable means of ingress and egress into (and out of) said passenger coach, and to the wanton, willful, and negligent interference by the servants and employees of the defendant, particularly the flagman of the train, at the time in question, in interfering with and preventing him from getting into said train."
Bearing in mind that plaintiff was attempting to enter upon said front platform of the day coach from the south side, and that the rear platform of the "smoker" was coupled thereto on the left, or west, side, the three persons who were in better positions to see how the accident complained of occurred were: (1) The flagman, who stood immediately upon plaintiff's right side, facing him, as he attempted to board the car, and holding a lighted lantern in his hand; (2) M. Kaliski, a passenger on the train, who had come out of the smoker with the expectation of meeting, or seeing, some one with whom he had an appointment, and who (Kaliski) was standing on the bottom step of the rear platform of the smoker, also facing plaintiff; (3) and W. C. Carpenter, a disinterested person, who had never been in the employ of a railroad company, and who, intending to board the train, was immediately behind the plaintiff waiting to move forward as he moved.
At the date of the trial, which was some 16 months after the accident, the flagman testified that he had been discharged by the railroad company about five months prior to that time (because of a difficulty with a passenger); that he was then engaged in farming; that he was done with railroading; and that he had no interest in the suit.
He further testified, in part, as follows:
"When the train stopped at Delhi -- after I had discharged all my passengers -- got off at Delhi -- after all had gotten on that I thought were going to get on, * * * I hollered, 'All aboard,' and Mr. Scott started towards the train, and as he attempted to step up on the train, stool he fell backwards in Mr. Carpenter's arms, I would say -- and they laid him on the ground and sent for a doctor and I remember hearing the doctor say" (objection).
The witness went on to say that the plaintiff cried out "O Lord," while lying on the ground, and that he did not know what was the matter with him; that he thought perhaps he had heart failure or was drunk; that plaintiff raised his foot to step on the "step stool," and was attempting to catch the handhold, but that his foot did not touch the stool and his hand did not touch the handhold; he simply fell backwards to the ground, against or into the arms of Carpenter, who was behind him; that he (witness), "just like anybody would," caught at him as he fell, but did not reach him.
Carpenter's testimony reads, in part:
He testified further that he does not know whether Scott's foot touched the step box or not; it was all so unexpected to him; and he did not know what Scott was doing with his foot. The allegations of the petition that we have quoted were then read to the witness, and he was asked what he knew of the flagman having done what he is there charged with doing, and his reply was, "I never seen any of it;" he never saw Scott take hold of anything; the first thing that he knew was Scott's falling back against him.
Kaliski testified that he was standing on the lower step of the adjoining platform (being the rear platform of the smoker); that he saw Scott come up, and that he made two attempts to get up on the box, and fell back and some one seemed to catch him; that he never got his foot on the step box; that he (witness) is inspector of watches for the railroad company. Another witness called by defendant (its agent at a nearby station) was about taking the train and professes to have witnessed the accident. We understand him to say that plaintiff stepped on the box and seemed to give way in the knees, and when he did "he just fell right back."
Plaintiff called in rebuttal the proprietor of the livery stable, who "meets all the trains," and he testified that he was standing perhaps ten feet back from the scene of the accident, and that plaintiff walked by him hurriedly and started to get on the train, and that he "fell off backwards"; that, as near as he could tell, plaintiff had one foot on the stool and one foot on the car step, and had hold of the two rods, and that he came off backwards. Witness was looking right at him and did not see the flagman touch him; that the way it struck him was, "There is a man with heart failure," though he had never seen a man afflicted with that complaint.
Plaintiff also called in rebuttal two negroes who profess to have witnessed the accident from a distance of 15 feet. One of them (Perkins) testified that plaintiff "put his foot on the box -- left...
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