Alexander v. Continental Southern Lines, Inc.

130 So. 2d 539, 1961 La. App. LEXIS 1104
CourtLouisiana Court of Appeal
DecidedMay 5, 1961
DocketNo. 9490
StatusPublished
Cited by3 cases

This text of 130 So. 2d 539 (Alexander v. Continental Southern Lines, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Continental Southern Lines, Inc., 130 So. 2d 539, 1961 La. App. LEXIS 1104 (La. Ct. App. 1961).

Opinion

GLADNEY, Judge.

In this action in tort Mrs. Enette Alexander seeks damages for injuries sustained when she fell while alighting from defendant’s bus. The trial court held the evidence supported a finding of liability of defendant and awarded plaintiff the sum of $13,237.48. Defendant has appealed.

The law is well settled that a carrier of passengers must exercise a degree of care, skill and diligence for the safety of its passengers, as is required by the nature and risk of the undertaking in view of the mode of conveyance and other circumstances involved. Under this rule the carrier is held to the highest degree of care, skill and diligence, the highest practical care, or ex[541]*541traordinary care and caution. 13 C.J.S. Carriers § 678, p. 1255. Johnson v. Continental Southern Lines, Inc., 2 Cir.1959, 113 So.2d 114, 74 A.L.R.2d 1328. Also recognized is the legal principle that where the alleged injury resulted from an object or foreign substance placed in the aisle or on the floor of the conveyance by some third person, it is incumbent upon the complainant to show the foreign substance was placed there by an employee of the carrier or that an employee knew or by exercise of reasonable care and diligence should have known of the presence of such foreign substance and failed to remove it. Jones v. Baton Rouge Electric Company, La.App., 1 Cir., 1939, 192 So. 539; Sewell v. Gulf, C. & S. F. Ry. Company, La.App., 1 Cir., 1943, 11 So.2d 923; Johnson v. Continental Southern Lines, Inc., supra. Thus there is imposed upon a carrier’s employees a duty to remove foreign substances or objects from the aisle and platform of the vehicle when they have actual or constructive notice thereof. In a recent decision of this court, Johnson v. Continental Southern Lines, Inc., damages were awarded to a seventy year old woman passenger who stepped on an empty bottle, covered by a newspaper, and fell in the aisle of the bus. There was evidence that the driver’s attention had been directed to the presence of the empty bottles in the aisle, two of which had been removed and given to him by passengers, and he had failed to make an inspection for the possible presence of other bottles. Counsel for appellee, relying upon the Johnson case, contends that plaintiff need only show she was a fare-paying passenger and received injuries while occupying such capacity and that she need not show a specific act of negligence. We do not find such a conclusion can properly be drawn from that decision, although the opinion recognized that a presumption arises that a carrier has been negligent in the furnishing of a safe conveyance for transportation where an accident occurs from some defect in the vehicle or its equipment, and unless the carrier can exculpate itself from any negligence in that respect, it will be held liable. A presumption of the carrier’s negligence does not arise simply from the presence of a foreign substance placed in the aisle or on the floor of the conveyance by some third person. In such instances a plaintiff must show the substance was placed there by an employee of the carrier or that an employee knew or by the exercise of reasonable care and diligence, should have known of the presence of such foreign substance and failed to remove it.

In substance, petitioner charges the defendant with five specific acts of negligence, which she says contributed to her fall. These were failure to provide a handrail on the bus, failure of the operator to assist her in alighting from the bus, failure to provide adequate lighting in the bus, failure to provide safe steps, and failure to remove vomit from the floor of the bus, which rendered her shoes wet and slippery and caused her to slip on the steps of the bus while she was in the act of disembarking. The defendant expressly denied any negligence on the part of any of its employees or that its equipment was in any wise defective, and specifically pleaded contributory negligence on the part of the plaintiff.

Mrs. Alexander, a woman of fifty-one years of age, and physically sound, boarded defendant’s bus at Columbus, Georgia, about 2:30 o’clock P.M. on April 15, 1960. She was accompanied by her eleven year old granddaughter, Paula Deon Waldon. On the following day at 2:30 o’clock A.M. plaintiff, while alighting from defendant’s bus at its bus station and terminal in Monroe, sustained severe injuries to her back and spine. When Mrs. Alexander got on the bus she took a seat some four or five seats behind the driver. Her granddaughter was seated near the window next to Mrs. Alexander until they arrived at Jackson, Mississippi. Plaintiff testified that she remained on the seat throughout the journey; that the bus was crowded and no other seats were available; that throughout the trip her feet of necessity rested in a puddle of vomit located on the bus floor between her [542]*542seat and the seat immediately in front of her; that on several occasions the driver, W. W. Conley, went down the aisle of the bus to collect tickets and, in fact, collected her ticket; and that she did not call his attention to the presence of vomit under her feet. She gave this account of her fall:

“Well, when I got on the bus the bus was real crowded and this was the only seat vacant so I took this seat and there was a lot of vomit on the floor and so when we got in to Montgomery they said that the bus would be cleaned out and so when we got back on the bus it hadn’t been cleaned out, so we went on to Jackson and the driver said ‘all get out of the bus, it is going to be •cleaned’, so when I got back on the bus the aisles had been swept out but the vomit was still on the floor and so we came to Monroe and when I got ready to get off — well when I got to the step-down going down the steps my feet slipped out from under me and I rolled from the top of the bus all the way down to the concrete.”

While on the witness stand, plaintiff was asked the direct question as to whether it was her contention she had put her feet in the vomit and that had caused her to slip. She answered in the affirmative and stated the floor was still wet from the vomit when she arrived in Monroe. The testimony is in conflict as to the identity of the step from which she slipped and fell. Plaintiff was doubtful as to the direction of her fall, but was under the impression she fell forward while stepping from the aisle to the vestibule. Other witnesses, particularly Dulaney and Conley, who were in a position to see plaintiff fall, testified Mrs. Alexander fell from the first step upon leaving the vestibule to reach the ground level.

Paula Deon Waldon, the eleven year old granddaughter, and John Randall Dooley, a passenger who boarded the bus at Vicksburg, Mississippi, en route to Dallas, Texas, were witnesses who corroborated plaintiff as to the presence of the vomit. Dooley was seated next to the window on the same seat with Mrs. Alexander after leaving Vicksburg. He testified to the odor but did not recall seeing the vomit or that it was slippery. Paula was seated on the opposite aisle after leaving Jackson and got off the bus just ahead of her grandmother. Her testimony is not informative.

W. W. Conley, the bus driver, testified the bus was given inside cleanings at Montgomery, Alabama, and then again at Jackson, Mississippi; that the employee who cleaned the bus in Jackson went to the back of the bus and cleaned the rest room first, then swept out the bus, taking out papers, trash, etc.; and that he did not smell, see or notice any vomit anywhere in the bus, but that had his attention been called to its presence he would have had it cleaned up at once.

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Bluebook (online)
130 So. 2d 539, 1961 La. App. LEXIS 1104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-continental-southern-lines-inc-lactapp-1961.