Schwartz v. New Orleans & C. R.

Citations

• 110 La. 534
• 34 So. 667
• 1902 La. LEXIS 190

Syllabus

<p>STREET RAILROADS — INJURY TO PEDESTRIAN —PROXIMATE CAUSE — NEGLIGENCE.</p> <p>1. Action sounding in damages for personal injuries incurred. Facts and circumstances-make out a case of contributory negligence barring plaintiff’s recovery.</p> <p>On Rehearing.</p> <p>2. Finding himself between two street cars-upon a crossing, plaintiff held his ground. A curve in the car tracks began where he stoodCn entering this curve, the car in front of him. developed a lateral motion, and squeezed him against the other car. Although he had lived in New Orleans all his life, and presumably was as familiar as anybody with this crossing, he did not know of this lateral movement, and did not guard against it, which he could easily have done, and had ample opportunity to do, as the cars at one moment were stationary, the-one taking on passengers and the other letting a wagon go by. Under these circumstances, hold, that this unexpected lateral movement of the car and the act of plaintiff in remaining •between the cars were the proximate causes of the accident.</p> <p>3. The car behind plaintiff would have passed on, and would not have been there to act-as a wall for plaintiff to be pressed against, if it had not made an emergency stop to avoid striking plaintiff, who had negligently passed too close ahead of it. Bold, this negligence of plaintiff in passing too close ahead of this car was not a proximate cause of the accident, it being disconnected judicially from the accident by the deliberate act of the plaintiff himself in choosing to remain between the cars and the-deliberate act of the car company in so running its cars upon the crossing as to create a danger by which pedestrians upon the crossing might be overtaken unawares.</p> <p>4. The act of the car company in creating upon one of the most frequented crossings of the city of New Orleans an insidious danger, when it could have avoided doing so by not permitting the ears to pass each other upon the crossing, is held to consti