Vidal v. Liberty Mut. Ins. Co.

• Decision Date: 09 March 1970
• Docket Number: No. 3838,3838
• Citation: Vidal v. Liberty Mut. Ins. Co., 232 So.2d 786 (La. App. 1970)
• Parties: Joseph P. VIDAL and Linda Prejean, His wife v. LIBERTY MUTUAL INSURANCE COMPANY, Enes Parks and Westside Transit Lines, Inc.
• Court: Court of Appeal of Louisiana

Page 786

232 So.2d 786

Joseph P. VIDAL and Linda Prejean, His wife v. LIBERTY MUTUAL INSURANCE COMPANY, Enes Parks and Westside Transit Lines, Inc.

No. 3838.

Court of Appeal of Louisiana, Fourth Circuit.

March 9, 1970.

Kierr & Gainsburgh, Wilson M. Montero, Jr., New Orleans, for plaintiffs-appellants.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel, New Orleans, for defendants-appellees.

Before CHASEZ, REDMANN and Le SUEUR, JJ.

LeSUEUR, Judge.

The plaintiffs in this action have appealed from an adverse jury verdict rendered in the trial court denying all claims brought against the defendants for injuries sustained by Mrs. Vidal.

The plaintiffs allege that on January 21, 1967, Mrs. Vidal, who was then 17 years of age and 5 1/2 to 6 months pregnant, was injured after boarding a Westside Transit Lines, Inc. bus and that her injuries were due to the negligence of the driver, Enes Parks, in starting the bus with unusual violence before Mrs. Vidal had time to reach a seat, causing her to fall. The defendants deny there was a fall, and, alternatively, contend that if Mrs. Vidal did fall, that Mr. Parks was not negligent and/or that recovery is barred by her contributory negligence.

There were no witnesses to the incident. At the critical moment Mr. Vidal was occupied with securing change and depositing it in the fare receptacle and there were no other passengers. Mrs. Vidal testified that she was on her way to but had not reached the third or fourth row of seats when the bus jerked forward throwing her to the floor. Mr. Parks testified that he had noticed that Mrs. Vidal was pregnant; but added that he had checked the rear view mirror prior to starting the vehicle and that her position in the mirror image indicated that she was seated before he moved. It is unconstested that, seated or standing, her hands were free. Special interrogatories were not used and the specific findings of the jury are not a matter of record.

The plaintiffs first maintain that a portion of the jury charge which defined certain presumptions and burdens relevant to carrier litigation was incorrect. The relevant language is as follows:

'While the mere happening of an accident does not make the carrier liable the Proof of an accident on a public carrier by a passenger imposes a burden on the carrier to overcome a presumption of negligence and prove that the accident was beyond its control, that the carrier was in no way negligent or that the accident was the result of the passenger's negligence or contributory negligence.' (Emphasis supplied.)

The plaintiffs object to this language, relying upon the decision of the Supreme Court in Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963). There, the court held that:

'* * * the law applicable to the case was correctly stated by the Court of Appeal thus:

"The mere showing of injury to a farepaying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case. Adams v. Great American Indemnity Company, La.App., 116 So.2d 307; Johnson v. Continental Southern Lines, Inc., La.App., 113 So.2d 114, 74 A.L.R.2d 1328; Coleman v. Continental Southern Lines, Inc., La.App., 107 So.2d 69; Peters v. City of Monroe, La.App., 91 So.2d 428.

"A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378. The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers, the carrier being held...