(dissenting). My inability to concur in the opinion of my associates results from my unwillingness to accept as correct the interpretation placed by them upon the decision of the Supreme Court of Louisiana in the matter entitled Hopkins vs. New Orleans Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362.
In the petition in the present case the only allegation of negligence was that the car had moved as plaintiff was alighting. The trial judge found against plaintiff on this point. In his opinion given on application for a new trial he said:
“On the whole, I find it to be a. fact that the car did not move as the plaintiff was alighting from it.
“Thus there is failure to prove the only allegation of negligence which is made by the petition.”
I have, carefully read the record and am quite convinced of the correctness of this finding of fact. I have no doubt whatever that plaintiff fell either while alighting or just after alighting, and solely and entirely as a result of her own awkwardness or carelessness or possible weakness resulting from illness, and that the car was not started too soon.
But, says the trial judge, although defendant has proven conclusively that the charge of negligence made by plaintiff is not sustained by the evidence, and although the defendant has proven conclusively that it was not negligent in any particular, it has failed to show what negligence and whose negligence caused the injury to plaintiff, and therefore defendant. is liable because the Supreme Court of this state, in the case of Hopkins vs. New Orleans Ry. & Light Co., supra, has held that, where a passenger is injured, the defendant, in order to avoid liability, must not only disprove negligence on its part, but must go much further and prove *591who and what was responsible. I cannot agree that such is the law of this state, nor that our Supreme Court intended in the Hopkins case to establish any such principle.
I can well understand that, where a passenger is injured under mysterious or unusual circumstances, the burden is on the carrier to explain just what happened; but I do not believe that the proper interpretation of the decision in the Hopkins case requires us to hold that no matter what the circumstances, no matter how open and apparent the happening may be, and no matter how, free from negligence the carrier may prove itself to be, the burden is on it to establish every detail with reference to what caused the injury.
I concede that it is logical to hold that, if a train is derailed and a passenger is injured, or if there is a collision and the passenger is injured, it is the duty of the carrier to explain away its own negligence and to show the true cause, because derailments and collisions are caused by circumstances over which the passenger has no control and of which he has no knowledge; but here we have an affirmative allegation that the cause of the accident was the sudden starting of the car and we have the finding of the trial court, in which I thoroughly concur, that the car did not start. Must the carrier go further and show that the plaintiff was injured because of a bilious attack or because one of her ankle's was weak; if so, then there is a burden placed on the carrier which, in my judgment, is most unreasonable, and which in the majority of instances it cannot possibly sustain.
In the Hopkins case the court found that the facts were .entirely with the plaintiff. Here the court finds that the facts are entirely with the defendant.
If the majority opinion in this case is correct, what becomes of the doctrine announced in Adkins vs. New Orleans Ry. & Light Co., 2 La. App. 130, which involved injuries to a passenger, and in the syllabus of which this court said:
“In a tort action, plaintiff must prove with reasonable certainty a specific act of negligence charged in his petition. * * *”
If the majority opinion here is correct and the decision in the Hopkins case is to be interpreted as my associates propose, how can we explain the decision of the Supreme Court in Veith vs. New Orleans Ry. & Light Co., 152 La. 47, 92 So. 730, in which it was claimed that the injuries resulted from the sudden starting of the car and in which the. court found that the car was not suddenly started? The passenger was very severely injured. No real explanation of the' injury was given, but the court felt that the defendant had satisfactorily disproved its own negligence.
I am convinced that the finding in the Hopkins case did not require the statement quoted from Le Blanc vs. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303:
“It is then for the carrier, and not the passenger, to show what negligence and whose prevented the fulfillment of the contractual obligations of the carrier.”
A reading of many decisions of this court and of .our Supreme Court convinces me that such is not the law of this state and that, where the accident is open and apparent, and the passenger has every opporr tunity to see what is going on, and having seen, makes specific allegations of negligence, and the carrier disproves those allegations, the passenger cannot recover merely because the carrier has not gone *592further and proven what negligence and whose is responsible.
My associates cite Lykiardopoulo vs. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976. In the opinion rendered by the Supreme Court in that case appears the following:
“In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself — res ipsa loquitur — that is to say, that a presumption of negligence arises from the fact itself of the accident. In such cases, the plaintiff not only need not allege the particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie case, and the burden is on defendant to show absence of negligence.”
That case sems to me to be most favorable to defendant’s contention and to support two propositions, first, that it is only in those cases in which the circumstances are mysterious or are peculiarly within the knowledge of defendant that there is a presumption of negligence and a shifting of the burden of proof, and, second, that even in such cases all that defendant need do to rebut this presumption and avoid liability is disprove its own negligence. It should not be required to go further and prove what and who caused ' the accident.
A carrier is not responsible to a passenger as an insurer. In certain cases his responsibility results not because he is an insurer, but because there is a prima facie presumption from the injury itself that the carrier is negligent. If he disproves this negligence, that is all that should be required of him. To require him to go further and prove the cause, when he has already proven that the cause is not his negligence, is, in my judgment, to require more than is justified by the law and by the jurisprudence of this state.
For these reasons I respectfully dissent.