[117]*117George Olivier,Appellant. vs J.L.Lancaster and C.L.Wallace Receivers T.and P.Ry.
No. 8788
Charles F. Claiborne, Juage..
■Sbis is a suit for damages for .physical injuries suffered in conaequenoe.of the derailment of one of defendant's trains by plaintiff employed thereon as a nail Service Clerk.
Plaintiff alleges that on February 20tli 1921 while engaged in the soope of his employment and while performing .his duties1- as a1 Railway Mail Service Clerk in the mail oar attached and making part of the Texas and Pacific train So.22 said .train derailed at RaringoMdn,Louisiana,causing the mail car to turn oyer and seriously injure petitioner- who was in said mail oar at- the moment or the aocident;"petitioner further •avers he has been informed and believes to b.e true and- so alleges that the wreck and derailment of tram No.22fe which caused the injury hereinafter described to your petitioner was due to defective rails on the main line of defendant's tracks’^he further avers that he received severe -injuries ©n the Keadjarm,t-high and back which necessitated his being confined in bed and prevented him from ,performing, His duties for a period of .twenty one days during which time-he-was tinder the /yu care Of a phys-ioia\;that since said acoident He suffered from constant headaches,and nervousness,and,that Bis health .has been permanently impaired¡that he Has suffered great pain and agony .-He olaims the following damages?
Physical pain and suffering #2,600.00
Rental .Suffering 2,200;00
aedifial Expenses &&$> 300.00
$ 6-,000.00
The answer wae practically a- genera:! denial.
The casgjras^ried by a jury and there was a Yerdiot^fojjT'the g^f.endant.The plaintiff has appealed.
The first question to:be determined' is what capacity did' the plaintiff occupy on the train,'wae he entitled [118]*118to the rights' óf a passenger?
In 10 Corpus Juris p.,631 we read?
"Postal 01 erics .-Although it has. been held that a postal clerk while oh a train in the performance of his duties íh not a passenger,so that the railroad company is liable to him for an injury only in case of negligenoe which would render it liable to its own employees,by the weight of authority a postal clerk,employed in the service or tne government and engaged in its servtwe,traveling on a train,whom by contract with the government the Company is bound to carry, must be considered a passenger at least in so far as the Company’s liability for his personel injuries- through negli-genoe is concerned".
same, p,6.32 Hots 71 s
" It -is -settled law that in the carriage of the route agents or-'p’oetal oierke of the United'States-,charged with duties respecting'-the protection and proper distribution, of the mails .carried under- contracts in-accordance with law, the carrier is under the;, saíne obligation to them,as regards suitable and safe carriage,'that it is. to its ordinary passenger#"
"As a matter of,general law,aside .from any'looal statute,a railway mail clerk',while engaged in the performance of his duties,is unquestionably to.be regarded as a passenger,' and entitled to -.the rights and immunities growing out. of .that, relation.This; is decided by Courts of the highest ■ character,... the authority of which' is not. to be resisted",1143 Fed.665-537What•then'are the- responsibilities.of the carrier' towards the'-passengeri
.'.-'•-She answer/;is-.found-,in Gleason vs'Virginia RRD. '140 U.S.£3S-in which 'the. Court- said' ón p.443 s
'; *'-.Since'the-decisions in Stokes vs Saltoustall 13 Peters 181 (1864);and RED. Co. vs Follard 22 Wall 341,it. has been, set,tied'IgW.i in'this'Court that-the. happening of an injurious -.accident--is. .in.;passenger--eases-pr-ima. facie .evidence., of negligence, on the, part-.’of.-the/,carrier and that (the passenger himself in the exercise-of.-dáe 'pare) .the burden,/then rests upon, the - carrier to show -that;.its. whdl'e,duty-’was, .-performed-and that*. ¿the.; inj.ury. was unavoidable. by;..human ■ foreBigjbt',...
[119]*119The 5ftle announced in those oases has received general acceptance and was followed at the present term in 551 Juland Coasting Co. vs Tolson 130 U.S. 851 -xxx The law is that the plaintiff must show negligence in the defendant.This is done prima facie by showing,if the plaintiff be a passenger, that the accident occurred.If that accident was in fact the result of causes beyond the defendant's responsibility,or of the act of God,it is still none the less true that the plaintiff has made out his prima facie case.When he proves the occurrence of the accident,the defendant must answer that case/feem all the circumstances of exculpation,whether disclosed by the one party or the other.They are its matter of defence".
The principle of this opinion was adopted by this Court in Frazier vs Squthern HED. No.8608 decided March 19th 1923,following numerous decisions of our own Supreme Court,
In that case we said:
" When the passenger is injured all he has to -yr allege and prove is a derailment^ tea. explosion,a collision,or other accident,and. an injury to himselfthe carrier is liable unless he explains that the accident was without his fault."We adhere to that decision.
In the case under consideration the plaintiff alleged that he was a passenger,that the train had derailed^, and that he had suffered an injury.In the language of the Supreme Court of the United States: " when he proves the occurrence of the accident,the defendant must answerthat case from all the circumstances of exculpation whether disclosed by the one party or the other."
But the defendants say that this rule does not apply when the plaintiff does not specifically"in ipsissimls verbis" charge the defendant with" negligence".
There is no merit in this contention.
First. When the plaintiff alleges that the defendants used defective rails,that their eross-ties were decayed,and that the spikes were missing,this sufficiently implies negligence without the use or the word-" The allegation that the [120]*120death resulted from the derailing of the oars by reason of bad condition of track,consequential upon rotten ties and missing •spikes,is sufficient averment of negligance" Duncan vs Ey 51 A 1775
It is not necessary to allege fraud by name if the allegations imply fraud.117 La 16 -20 Cyo 98 .
As the presumption of negligence resulted from the accident,it was not necessary for plaintiff to allege it. Plaintiff need no't allege what he need not prove.
"Since the law relieves the owner of proving negligence,wherefore the necessity of alleging that which he does not have to prove? His cause of action is complete,under the law as it now stands,when he sets forth his animal has been killed by the defendant Company.where and when killed,and that its, value is so mhch." 106 La 425 (428) .
The defendants did not attempt any explanation of the derailment.nor exculpation of the presumption of negligence by witness*o£
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[117]*117George Olivier,Appellant. vs J.L.Lancaster and C.L.Wallace Receivers T.and P.Ry.
No. 8788
Charles F. Claiborne, Juage..
■Sbis is a suit for damages for .physical injuries suffered in conaequenoe.of the derailment of one of defendant's trains by plaintiff employed thereon as a nail Service Clerk.
Plaintiff alleges that on February 20tli 1921 while engaged in the soope of his employment and while performing .his duties1- as a1 Railway Mail Service Clerk in the mail oar attached and making part of the Texas and Pacific train So.22 said .train derailed at RaringoMdn,Louisiana,causing the mail car to turn oyer and seriously injure petitioner- who was in said mail oar at- the moment or the aocident;"petitioner further •avers he has been informed and believes to b.e true and- so alleges that the wreck and derailment of tram No.22fe which caused the injury hereinafter described to your petitioner was due to defective rails on the main line of defendant's tracks’^he further avers that he received severe -injuries ©n the Keadjarm,t-high and back which necessitated his being confined in bed and prevented him from ,performing, His duties for a period of .twenty one days during which time-he-was tinder the /yu care Of a phys-ioia\;that since said acoident He suffered from constant headaches,and nervousness,and,that Bis health .has been permanently impaired¡that he Has suffered great pain and agony .-He olaims the following damages?
Physical pain and suffering #2,600.00
Rental .Suffering 2,200;00
aedifial Expenses &&$> 300.00
$ 6-,000.00
The answer wae practically a- genera:! denial.
The casgjras^ried by a jury and there was a Yerdiot^fojjT'the g^f.endant.The plaintiff has appealed.
The first question to:be determined' is what capacity did' the plaintiff occupy on the train,'wae he entitled [118]*118to the rights' óf a passenger?
In 10 Corpus Juris p.,631 we read?
"Postal 01 erics .-Although it has. been held that a postal clerk while oh a train in the performance of his duties íh not a passenger,so that the railroad company is liable to him for an injury only in case of negligenoe which would render it liable to its own employees,by the weight of authority a postal clerk,employed in the service or tne government and engaged in its servtwe,traveling on a train,whom by contract with the government the Company is bound to carry, must be considered a passenger at least in so far as the Company’s liability for his personel injuries- through negli-genoe is concerned".
same, p,6.32 Hots 71 s
" It -is -settled law that in the carriage of the route agents or-'p’oetal oierke of the United'States-,charged with duties respecting'-the protection and proper distribution, of the mails .carried under- contracts in-accordance with law, the carrier is under the;, saíne obligation to them,as regards suitable and safe carriage,'that it is. to its ordinary passenger#"
"As a matter of,general law,aside .from any'looal statute,a railway mail clerk',while engaged in the performance of his duties,is unquestionably to.be regarded as a passenger,' and entitled to -.the rights and immunities growing out. of .that, relation.This; is decided by Courts of the highest ■ character,... the authority of which' is not. to be resisted",1143 Fed.665-537What•then'are the- responsibilities.of the carrier' towards the'-passengeri
.'.-'•-She answer/;is-.found-,in Gleason vs'Virginia RRD. '140 U.S.£3S-in which 'the. Court- said' ón p.443 s
'; *'-.Since'the-decisions in Stokes vs Saltoustall 13 Peters 181 (1864);and RED. Co. vs Follard 22 Wall 341,it. has been, set,tied'IgW.i in'this'Court that-the. happening of an injurious -.accident--is. .in.;passenger--eases-pr-ima. facie .evidence., of negligence, on the, part-.’of.-the/,carrier and that (the passenger himself in the exercise-of.-dáe 'pare) .the burden,/then rests upon, the - carrier to show -that;.its. whdl'e,duty-’was, .-performed-and that*. ¿the.; inj.ury. was unavoidable. by;..human ■ foreBigjbt',...
[119]*119The 5ftle announced in those oases has received general acceptance and was followed at the present term in 551 Juland Coasting Co. vs Tolson 130 U.S. 851 -xxx The law is that the plaintiff must show negligence in the defendant.This is done prima facie by showing,if the plaintiff be a passenger, that the accident occurred.If that accident was in fact the result of causes beyond the defendant's responsibility,or of the act of God,it is still none the less true that the plaintiff has made out his prima facie case.When he proves the occurrence of the accident,the defendant must answer that case/feem all the circumstances of exculpation,whether disclosed by the one party or the other.They are its matter of defence".
The principle of this opinion was adopted by this Court in Frazier vs Squthern HED. No.8608 decided March 19th 1923,following numerous decisions of our own Supreme Court,
In that case we said:
" When the passenger is injured all he has to -yr allege and prove is a derailment^ tea. explosion,a collision,or other accident,and. an injury to himselfthe carrier is liable unless he explains that the accident was without his fault."We adhere to that decision.
In the case under consideration the plaintiff alleged that he was a passenger,that the train had derailed^, and that he had suffered an injury.In the language of the Supreme Court of the United States: " when he proves the occurrence of the accident,the defendant must answerthat case from all the circumstances of exculpation whether disclosed by the one party or the other."
But the defendants say that this rule does not apply when the plaintiff does not specifically"in ipsissimls verbis" charge the defendant with" negligence".
There is no merit in this contention.
First. When the plaintiff alleges that the defendants used defective rails,that their eross-ties were decayed,and that the spikes were missing,this sufficiently implies negligence without the use or the word-" The allegation that the [120]*120death resulted from the derailing of the oars by reason of bad condition of track,consequential upon rotten ties and missing •spikes,is sufficient averment of negligance" Duncan vs Ey 51 A 1775
It is not necessary to allege fraud by name if the allegations imply fraud.117 La 16 -20 Cyo 98 .
As the presumption of negligence resulted from the accident,it was not necessary for plaintiff to allege it. Plaintiff need no't allege what he need not prove.
"Since the law relieves the owner of proving negligence,wherefore the necessity of alleging that which he does not have to prove? His cause of action is complete,under the law as it now stands,when he sets forth his animal has been killed by the defendant Company.where and when killed,and that its, value is so mhch." 106 La 425 (428) .
The defendants did not attempt any explanation of the derailment.nor exculpation of the presumption of negligence by witness*o£ their own.Neither the engineer,nor conductor,nor roadmaster.nor any other employee of the Company was called by them.
"Tne failure of ¿¡he railroad Company to introduce the testimony of its employees,who were on the train at the time of the accident.raises a presumption of, negligenoe against the company" 55 A 694 .
"When the existence of certain facts lies within the knowledge of me one of the parties and he fails to testify concerning it,the preswaption is against him- 55 A 694-1 L.D. 247-127 La 509-142 La 265-144 La 83 ..
The defendants rested their defense upon the proposition that inasmuch as the plaintiff had restricted his complaint to defective reails,unless he proved that fact his suit must be dismissed.In support of their position they quoted from 51 A 1776-: "The failure of the plaintiff to, establish the allegation that the death resulted from .the derailing does not throw upon the defendant the burden of acoointlng fob the // accident
[121]*121.lilis court might have been misled'bv the 'quotation' hpd they not read- the opinion.But in that ease the plaintiff- ..." iras a hrakeman whose rights are entirely different.' from" those,.of a passenger.The Court says on p.1783,': " It is'.tfdé'%áatí the-defendant does not aooount for the accident,saye by 'thepr^fS-. propounded hy one oi* two of the witnesses,hut it, was not in the'" case presented bound' to, do ■ so, what ewer might have been itB obligation had the person injured been a passenger or perishable freight,instead of- an emplóyee-.A brakeman accepts the risks; V incident to his employment andt etc ".
The defendants-objected to any - evidence.--tending.to show the defectiye condition of the cross-ties,roa'd bed;,..- •- and track in general, or'of the - excessive bate or, spped of, the.;. train on the same ground that the plaintiff had.alleged defects only in the rails.The' objections were maintained »au the-evl-.. . dence exoluded.lt was not necessary, for the plaintiff,:io make ' proofs of those' facts £ on the contrary-.it, was incumbent’on . derenoants to prove that all those agencies were as sound - and'; safe as human ingenuity could- make- them';
A railroad-conductor of.- the-, defendant company swore that the spites,’ al'ong the- rails were -missing,or had,--been"-' removed rrom the oross ties with-the .intention of. wreoking the train.Eailroads are required to. make inspections of their belongings a*-reásonable times^to have track-walkers to inspect' their tracks.These'is-no . evidence in’,;, this case; teat -any pro-'cautions .of that -kind wero takenino . testimony tblshow when those spiked,-if any,were removed,; or-tmt.- they'.had been .removed ..so recently that.it was.not .neeli'genco -on the-part of,.-.the.- ’ railroad .-not’ to* have .known it,
. Thousands of • naseengers '.'travel; Ughh. raiaro.ape,-every ’day,and public ..policy r.eftuírfS' .that;their ;diity jt^íoaríyí their paasengei:s^:safely "Bhoul<í.-:;'be,1‘.strictly ,.enfprGed;,-’:i.
..'"The'’plaintiff swears' -.that, when.’.the . Car -ran -off.:-*lte-' track, the ear turned .pver'jand ,ne;was .knocked /aown.ana.tne v'fmaitura. £oi$-ao .^gnained-in;pshat: ;po-sition._ abpat thi.nty'minútes-yw■ was/uncoña&Ióuá'for ':15;pr,SO. minutes;.. [122]*122he vías struck on the head and had contusions on his arm,and leg and .hack,hut they left no marksjhe went to hed for ten days; he remained away from work for 20 days for which the Government paid him compensation;he employed a doctor who treated him for about 15 days,hut there is no evidence that he paid him anything.
We think a judgment for $250 will do justice in the case.See Frazier vs Southern RRD.No.8608 Ct.App March 19th 1923 .
It is therefore ordered that the judgment herein he avoided and reversed,and that there now he judgment in favor of the plaintiff George Olivier and against the defendant the Texas and Pacific Railway Company for Tv/o Hundred and Fifty dollars,with costs in hoth Courts.
Judgment reversen.
May 14th 1923 .