Clogher v. New Orleans Ry. & Light Co.

On Rehearing.

PROVO STY, J.

Plaintiff, a lady 44 years old, and weighing 175 pounds, fell while ■ alighting from one of the electric street ears of the defendant company on Tulane avenue, and sues in damages.

The avenue consists of two asphalted roadways, with an unpaved neutral ground between them upon which the cars run. The surface of the roadway of the cross streets which traverse it, or in other words, the surface of its own roadway at the cross street intersections, is level with the neutral ground and with the top of the rails. It lowers gradually, though only slightly, in the-direction of the middle of the block, while the neutral ground maintains its level. Plaintiff says that this difference in elevation between the asphalted roadway and the neutral ground does not exist at the regular stopping place for the cars, which is where the sidewalk of the cross street would pass if prolonged across the avenue; that at that place the neutral ground is level with the roadway; and she charges as negligence on the part of the defendant company that, for letting her get off, the car did not stop at this regular stopping place, but some 15 or 20 feet beyond. The neutral ground is of uniform width, and the outer edge of its curb is only 7 inches from the outer edge of the step of the car. Plaintiff attributes her fall to her having inadvertently, in descending from the car, laid her foot upon the outer edge of the curb of the neutral ground, and thus obtained an insecure foothold.

This alleged difference between the footing at the' regular stopping place and at the place where the car stopped is the fundamental fact in plaintiff’s case, and therefore the burden rested upon her to establish it to a *90legal certainty. Whether she has done so is left doubtful by the evidence. But as perhaps she had no reason to suppose it would be seriously contested, we prefer to rest our decision upon the broader ground, that the place where the car stopped was reasonably safe for the alighting of a passenger, and that consequently the stopping there was not negligence.

[2] AVere plaintiff to succeed, the doctrine of the case would have to be that, for a street car company to stop its car either short of, or ’ beyond, the regular stopping place is negligence, unless the footing at the place where the car is stopped happens to be precisely similar to that at the regular stopping place. The practical operation of such a rule would be to necessitate the marking of the space constituting the regular stopping place, and to preclude the stopping elsewhere, unless the car company choose voluntarily to incur the risk of a lawsuit. A tardy signal for stopping would have to pass unheeded, with the consequence that many a passenger would .be carried beyond his station. On days of rain and slippery tracks the car would have to approach a stopping place gingerly, with bated breath, as it were, lest it be not precise in making the stop. Perhaps such a rule would suit the car company, but certainly not the traveling public.

As a matter of fact, in New Orleans many cross streets do not traverse the car tracks at right angles. In all such cases the question of where was the proper place to stop would arise. Even in the present ease the conductor and the motorman and another witness testify that the car made what they considered to be a perfect stop; that is to say, stopped at the proper place.

[3] At the place where the car stopped, the step of the car was 1514 or 16 inches above the roadway, accordingly as the stop was made 15 or 20 feet from the regular stopping place; and hence all plaintiff would have had to do for safely alighting would have been to extend her foot seven inches out and step down 15% or 16 inches while holding on to a handlebar. We think such a place was reasonably safe, and that if plaintiff had been mindful of her step she would not have fallen. The conductor stood on the platform, and a gentleman friend of hers stood on 'the roadway at the car step, to afford her assistance if needed. We suspect the true cause, of plaintiff’s misadventure was that she was more mindful of the conversation, or attention, of this friend than of where she trod. At the regular stopping place plaintiff would have had to descend from practically the same height, 14% inches.

Plaintiff’s learned counsel cite a case where the car had stopped opposite “a deep gully,” and another case where “the rails were on an artificial embankment 2 or more feet above the natural surface, and extending 12 or 15 inches from the rail,” but evidently between situations like that and the situation in the present case, where the neutral ground was but 4 or 5 inches higher than the level asphalted surface of the street, there is no analogy.

Judgment set aside, and suit dismissed, at plaintiff’s cost.

LECHE, J., dissents.