Feigler v. Transit Management of Southeast Louisiana, Inc.

626 So. 2d 385, 1993 La. App. LEXIS 3183, 1993 WL 407381
CourtLouisiana Court of Appeal
DecidedOctober 14, 1993
DocketNo. 92-CA-1997
StatusPublished

This text of 626 So. 2d 385 (Feigler v. Transit Management of Southeast Louisiana, 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
Feigler v. Transit Management of Southeast Louisiana, Inc., 626 So. 2d 385, 1993 La. App. LEXIS 3183, 1993 WL 407381 (La. Ct. App. 1993).

Opinion

ARMSTRONG, Judge.

Defendants Regional Transit Authority and Transit Management of Southeast Louisiana, Inc. appeal a trial court judgment in favor of plaintiff Wallace Feigler. The case involves a personal injury suffered by plaintiff on the St. Charles Streetcar when an open window suddenly fell down striking a blow to plaintiffs head and shoulder. The defendants raise two issues on appeal: (1) whether the trial court (this was a bench trial) was manifestly erroneous in finding that plaintiff was in fact struck by a falling window; (2) whether the amount of general damages awarded by the trial court, $25,-000.00, was excessive. Because we find no manifest error as to the first issue and no abuse of discretion as to the second issue, we affirm.

Plaintiff boarded the St. Charles Streetcar on the afternoon of July 24, 1989, after his father delivered him to the streetcar stop by car, to go to his grandmother’s house to deliver some groceries. He was sitting next to the window on the right-hand side of the streetcar so that the window, which was in the raised position, was to his right and above him. For some reason, and the reason is not relevant to the issues on appeal, the window suddenly descended although it stayed within the vertical guide tracks in which it was mounted, that is, it did not come out of the window frame. Plaintiff was sitting very close to the window, and, in fact, had his right arm resting on the sill or the bottom of the window frame so that his position might best be described as leaning slightly into the space of the open window. As the window descended, it struck a glancing blow to the right side of plaintiffs head and to his right shoulder. The preceding description of the accident is based upon plaintiffs testimony at trial, including photographs taken of him in the streetcar at a later time for use at trial. These photographs show him demonstrating the position in which he was sitting at the time the window came down and struck him.

There was no other eyewitness testimony supporting plaintiffs claim that he was struck by the falling window. However, there was some testimony of surrounding circumstances which tends to corroborate plaintiffs testimony. After reporting the accident to the streetcar operator, and completing his trip on the streetcar, plaintiff got off the streetcar and walked to his grandmother’s house. Once there, his grandmother called her neighbor, Ms. Roper, to assist her with plaintiffs injury. Ms. Roper testified that, on the afternoon of July 24, 1989, she went to the house of plaintiffs grandmother and saw a bruised swelling on the right side of plaintiffs head and that his right shoulder was bruised and his right arm was scraped. Ms. Roper and plaintiffs grandmother put ice on plaintiffs injuries. (Plaintiffs grandmother was deceased at the time of the trial and no deposition of her was offered.) The next morning, July 25, 1989, plaintiffs father drove plaintiff to the family doctor, Dr. Blasi-ni. Plaintiff’s father testified that, when he dropped plaintiff off at the streetcar stop on the afternoon of July 24, 1989, there was no bruise or swelling on plaintiffs head and that, on the morning of July 25,1989, he did see such an injury to the side of plaintiffs head. Dr. Blasini testified that she saw plaintiff on the morning of July 25, 1989 and observed a swelling and an abrasion on plaintiffs head and an abrasion on plaintiffs right shoulder. Dr. Blasini took a history from plaintiff and found that his injuries were consistent with the accident he described.

The principal testimony relied upon by the defendants in rebuttal to plaintiffs testimony as corroborated by the other testimony described above, is the deposition testimony of a Mr. Heaphy, a tourist from New York, who was another passenger on the streetcar in which plaintiff was injured. Mr. Heaphy testified that he was sitting directly behind plaintiff, two or three rows farther back, that he saw the window fall, and saw that it did not hit plaintiff’s head. At one point, Mr. Heaphy testified that the window did not strike plaintiff at all. Later, Mr. Heaphy said only that he could see that the falling window did not strike plaintiffs head but that he could not see whether or not it struck [387]*387plaintiffs arm.1

The trial court’s reasons for judgment address this conflict in testimony: “The deposition of Patrick Heaphy, contradicts [the] testimony of the plaintiff. The court resolves the factual dispute in favor of the plaintiff.” The defendants argue that Mr. Heaphy has no interest in this case, as opposed to the financial interest of plaintiff, and, therefore, the trial court was manifestly erroneous in accepting plaintiffs testimony and rejecting that of Mr. Heaphy. However, lack of evident bias does not render a witness’ testimony absolutely rehable. Honest testimony may contain errors in the original observation or in later recollection. Mr. Heaphy testified that he was not looking at plaintiff or the window in particular, and had no reason to do so, but was simply looking forward. Mr. Heaphy was not deposed until over two years after the accident. The fall of the window was a sudden, momentary and unanticipated event which allowed only a very brief opportunity for observation.

The defendants also point to the testimony of two Transit Management employees who were on the scene immediately after the accident and testified that they did not recall seeing an injury to plaintiff. However, neither testified that they had a positive recollection that they did not see an injury to plaintiff. The accident occurred about two years and eight months before the trial. Further, plaintiffs treating physicians testified that the swelling and bruising suffered by plaintiff would take some time to develop and might not be visible right after the accident. Lastly, the two employees of a defendant are, of course, interested witnesses.

The defendants also point to the testimony that the window made a loud noise when it fell. The defendants argue that, if the window first struck plaintiff it would not continue downward with sufficient force to make such a noise. This is sheer speculation on the part of the defendants. It is not unreasonable to suppose that, after the window struck a glancing blow to plaintiff, it continued downward with considerable speed and force. Moreover, particularly in light of plaintiffs testimony that the rubber gasket was missing from the window frame, it might not have required much force or speed in falling for the window to make a fairly loud noise.

The manifest error standard for reversal of the trial court’s resolution of a factual issue is not easily met.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Dominigue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). See also, Sevier v. United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Produces Co., 364 So.2d 998, 999 (La.1978): A. Tate, “Manifest Error” Further observations on appellate review of facts in Louisiana civil cases, 22 La.Rev. 605, 611 (1962).

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626 So. 2d 385, 1993 La. App. LEXIS 3183, 1993 WL 407381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feigler-v-transit-management-of-southeast-louisiana-inc-lactapp-1993.