Evens v. Texas Pac.-Missouri Pac. Terminal R. R.

134 F.2d 275, 1943 U.S. App. LEXIS 4203

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 1943
• Docket: No. 10329
• Status: Published

Opinions

HOLMES, Circuit Judge.

This is a suit for damages for personal injuries sustained 'by appellant when she was knocked to the pavement in appellee’s terminal station in New Orleans, Louisiana. At the conclusion of the trial both parties moved for a directed verdict, but rulings upon the motions were reserved, the cause was submitted to the jury, and a verdict for appellant was returned. Appellee thereupon moved for judgment non obstante veredicto, and, in the alternative, for a new trial on the ground that the verdict was excessive. Both motions were granted, judgment was entered dismissing the suit, and appellant appealed.

At the time the accident occurred, appellant had arrived in New Orleans by train from Dallas, Texas, and was proceeding from the train toward the taxi stand outside the station. She had secured passage on the train by means of a pass, and, in consideration of its use, she had assumed all risk of injury to her person. The parties are agreed that, by reason of her assumption of risk, appellant was entitled to recover only for injuries resulting from willful or wanton negligence of the terminal company,¹ and that the only question presented is. whether there was evidence from which the jury might have found that the admitted negligence of appellee was willful or wanton.

Appellant was a lady more than seventy-six years of age. After leaving the train, she was following her red-cap, who was taking her bags to the taxi stand. As she passed through the gate separating the tracks from the vestibule leading to the waiting rooms, she was struck from behind, and seriously injured, by a heavily loaded cart pushed by another red-cap, a servant of appellee. The cart was piled high with luggage, but the red-cap could see over it when standing upright; the cart, as loaded, weighed more than 500 pounds, and was equipped with rubber tires so that its movements were comparatively noiseless. Several bystanders who witnessed the accident realized that the redcap was going to run into appellant, and shouted warnings to him, but he failed to stop in time. Appellant was never aware of the presence of the red-cap or of her peril. The red-cap testified that he saw appellant moving through the gate directly in the path of the cart when he was twenty-five feet away. He did not look for her again or see her before the accident, but devoted his attention toward seeing that the sides of the cart would clear the gate.

The negligence of the red-cap was not willful, for that term usually connotes an act intentionally done for the purpose of causing injury, but we think the evidence made an issue for determination by the jury as to whether the servant was guilty of wanton negligence. Wanton negligence may be generally defined as an act (or failure to act when there is a duty to act) in reckless disregard of the rights of another, coupled with a consciousness that injury is a probable consequence of the act or omission.² It was negligence for the red-cap to propel the heavy vehicle along a passageway occupied by other persons when the luggage impaired his vision of the course that he pursued. That negligence became aggravated when,— with knowledge that appellant was just ahead of him, that unless she stepped aside she would be run down, and that the heavily-loaded cart might cause her serious injuries in the event it should strike her— the red-cap continued to push his vehicle through the gate without looking to see that his way had become clear. Such reckless indifference for the safety of appellant, in full awareness of her peril, supported the express finding of the jury that appellee was guilty of wanton negligence.

For the error in granting the judgment non obstante veredicto, the judgment appealed from is reversed, and the cause is remanded to the district court for further proceedings not inconsistent with this ■opinion.

1 New York Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502, 9 A.L.R. 496; Virginia Beach Bus Line v. Campbell, 4 Cir., 73 F.2d 97.

2 Robins v. Pitcairn, 7 Cir., 124 F.2d 734; Hazle v. Southern Pac. Co., C.C., 173 F. 431; Southern Ry. Co. v. Bennefield, 172 Ala. 588, 55 So. 252, 35 L.R.A.,N.S., 420; Jefferson v. King, 12 La. App. 249, 124 So. 589; Anniston Electric & Gas Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am.St.Rep. 32; Stagner v. Craig, 159 Tenn. 511, 19 S.W.2d 234; United Transp. Co. v. Hass, 91 Misc. 311, 155 N.Y.S. 110; Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; 44 Words and Phrases, Perm.Ed., p. 609 et seq.; 20 R.C.L. 20; Restatement of Law of Torts, Sec. 500.