*117George Olivier,Appellant. vs J.L.Lancaster and C.L.Wallace Receivers T.and P.Ry.

No. 8788

■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 *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',...

*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 *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.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;.. *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 .

*123GEORGE OLIVIER VS J. L. LANCASTER & C. L. WALLACE, RECEIVERS OF THE TEXAS & PACIFIC RAILWAY

NO. 8788

COURT OF APPEAL PARISH OF ORLEANS

APPEAL FROII THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, HON. COLUMBUS REID, JUDGE.

DISSENTING OPINION OF

I concur only in that part of the majority opinion rendered in this case, whioh holds that the plaintiff, a postal clerk in the employ of the United States Government was a passenger on defendant's train and to whom defendant owed a high degree of caution while carrying him. However, from this conclusion it does not follow as a matter of law, that plaintiff, failing to charge defendant with general negligence, hut electing, on the contrary, to aver specific negligence, had naught to do in establishing a right or cause for recovery hut to prove that (1) while a passenger on defendant's train he was (2) injured hy an (3) accident for whioh (4) he was not himself at fault. I oannot subscribe to such a whioh seems to me opposed to overwhelmigg authority. It oannot he doubted that even without approval of text writers or courts, oommon sense would impel the doctrine both just and reasonable, that derailment of a railway train resulting in injury to a passenger establishes a prima facia presumption of some sort of negligence on the part of the carrier. Such a presumption, however, oannot and does not in any instance carry a fixed conclusion that the carrier has been guilty of *124every conceivable negligence, so that plaintiff is relieved of either alleging or proving negligence on the carrier's part.

It is a fundamental truth,for which authority need not he cited here, other than Article 2315 R. C. C., that in order to recover in this or other actions ex delicto, plaintiff njust both allege and prove defendant to have been negligent, or, in other words, at fault. Such allegations may be general or both general and specific, as in the Frazier case recently decided by this court, or there may be only allegations of specific negligence as i'n the instant case. Where the latter course is adopted, plaintiff is rightly held to the specific proof of the negligence as alleged and cannot substitute therefor proof of ether acts of negligence not averred in the pleadings. • In the Frazier case this court did not hold that under conditions' similar to those in the instant case no averments of negligence need be made by plaintiff against defendant to support the former's cause of action. There it was said:

"The plaintiff in this case does allege general negligence on the part of the defendant. Inasmuch as under our jurisprudence that allegation was sufficient to entitle plaintiff to recover, we consider specific allegations of negligence as mere surplusage and not essential to be prpven by plaintiff."

The majority opinion in the present case is predicated principally upon the ruling made by the United States Supreme Court in Gleeson v. Virginia Midland Railway Co., 140 U.S., 435, which cites with approval the earlier rulings, of that court in Stokes v. Saltonstall, 13 Peters, 181, and New Jersey R. & Transp. Co. v. Pollard, 22 Wall., 341; also Inland & Seaboard Coasting Co. v. Tolson, 139 U.S., 551.

It should be noted, however, that in Sweeney v. Erving, 228 U.S., 233, the court carefully reviewed its rulings made in the Sleeson case and particularly what had been previously, held in Stokes v. Saltonstall, and concerning this latter oase it said:

"A reading of the report shows that thé case turned upon the high degree of care owing by oarrier to passenger, and that the oourt did not rule that the circumstances of the occurrence shifted the burden of proof upon,the main issue. Such is the' effect that has. uniformly been given to the decision. New Hersey R. & Transp. *125Co. v. Pollard, 22 Wall. 341; Inland & Seaboard Coasting Co. v. Tolson, 139 N.S., 551; Gleeson v. Va. Midland R. Co. 140.

"In our opinion, 'Res ipsa loquitur' means that' the facts of the ooourrenoe warrant the inference of negligence, not that they oompel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may he lacking, hut it is evidence to he weighed, not neoessarily to he accepted as sufficient; that they oall for explanation or rehuttál, not neoessarily that they require it; that they make a case to he decided hy the Jury, not that they forestall the verdict. (Res ipsa loquitur,' where it applies, does not convert the defendant * s general issue into an affirmative defense. When all the evidence is in, the question for the Jury is, whether the preponderance is with the plaintiff."

The trial Judge's exclusion of evidence tending to prove excessive speed of the train in the present case, where neither this fact nor any general acts of negligence was averred, was, in my opinion, eminently correct and ha3ed upon the soundest rules of evidenoe. His charge to the Jury to the' same effect was in no respect reversible error and the Jury's findings are entitled, on appeal, to the highest consideration. It is-plain from the lánguage used in the Judge's charge that he.was convinced (as I am) that under the pleadings of this case the rule of Res ipsa loquitur could not he applied, saying:

"When the plaintiff himself alleges specific negligence on which he relies to recover, it is encumbent on him to prove that negligence hy a preponderance of evidenoe."

But applying the rule to the instant case, as has been done in the majority opinion, its. application, as was set out in Sweeney v. Erving, 228 U.S., 233, "does not convert the defendant's general issue into an affirmative defense." The burden in this case is ««athe/less upon the plaintiff to prove hy a preponderance of evidenoe that the derailment was caused hy defective rails. My appreciation of the evidenoe is that he has not oarried this burden and I think the Jury's evident conclusion to the same effect should not he disturbed.

*126I cannot agree with the opinion of my learned that it was incumbent upon the defendant in this case to affirmatively prove (as the opinion implies) that the railroad company had duly employed track walkers to inspect its tracks or that such inspection had been but recently made before the accident, or that the railroad spikes, which one of plaintiff's witnesses said had been removed, were in fact found at the time of the inspection to have been intact, or that the defect in the road-bed, cross-ties, fis.h-plate3, spikes, or any other parts — other than the railsfalone charged to be defective) was due to vandalism, etc. Under the circumstances of the instant case, X oannot agree that such affirmative proof of such precautions or the establishment of other defenses in avoidance of liability, was encumbent upon the defendant, If such be the doctrine applicable to actions ex delicto against carriers of passengers charged with specific negligenoe, tin. aw; ipleadings similar to those now before us, would automatically move the case towards inescapable liability against the defendant, upon the sole theory that it alone could know or must have known the cause of the accident and. therefore, must in every instance prove by affirmative preponderance of evidence that it was not at fault. This is n'ot my appreciation of the Haw or Jurisprudence of this or any other State of the union, nor was such a doctrine intended to have been announced in the case of Lykiardopoulo v. N. O. Ry. & L. Co., 127 La., 309; or in 142 La., 215, or 144 La., 83.

In Cooper v. Century Realty Co. (Missouri) 123 S.W., 848, it was held:

"In an action for injuries from a carrier's negligenoe it is sufficient to charge negligenoe in general terms; and under such a petition plaintiff need only to show that defendant was a common carrier, and that plaintiff was a passenger and was injured by the oarrier while being carried, from which it will be presumed that the injury was from the carrier's negligenoe; but if the petition charges specific negligenoe, the acts oharged must be proved as alleged before a prima facie case is made."

*127A like ruling was made by the United States Cirouit Court of Appeals in Midland Valley Railroad Co. v. Conner, 133 c.c.a., 628, in which Judge Sandhora, as the organ of the court, said:

"And in the absence of any allegation of general hegligence in a complaint or petition against a carrier for injuries to a.passenger, which oontains only specific allegations of negligence, it seems that, by the weight of authority, the presumption of negligence has no application to the case, as this presumption, when it arises, is. simply" of some negligence that caused the injury, and not a negligence in all things, and does not sustain allegations of specific negligence."

Corpus Juris, Vol. 10 p.p. 1028, 1029, in speaking of the lJc'.-'-'ne of Res ipsa Loquitur, says:

"She doctrine of Res ipsa Loquitur applies only where defendant's negligence is charged generally, and not where specific'acts of negligence which caused the injury are alleged, as in such a case plaintiff has the burden of proving the speoific acts relied on."

The Supreme Court of Alabama, in the case of Orr v. Boookholdt, 10 Ala. App., 331, said:

"So, where the complaint in an action' against a carrier for injury to a passenger declares upon a particular duty of the carrier, which is a mere incident of the general duty to use due and proper care, the plaintiff must prove a breach of the specific duty counted upon,and the complaint is not sustained by, nor can the plaintiff recover on, the presumption of negligence showing a breach of a general duty."

A like ruling wa3 made in Sullivan v. Capitol Tract. Co., 34 D.C., 358, when the court said:

"In an action by a passenger against a carrier, where the plaintiff in his declaration alleges the specific facts upon which he relies to establish the negligence of defendant — thus showing that they are within his knowledge— the burden is upon him to establish negligence as' the'basis for recovery; and he does not make out a prima facie ofise calling for rebuttal or explanation by the defendant'by merely proving that he was a passenger and the occurrenoe'of the accident by which he was injured."

See also M. K. & T. Ry. Co. of Texas v. Thomas, 132 S.W., 974; 140 S. W., 398.

The case of State ex. rel. Sorrel v. Roster. 106 La., 425, is cited in che majority opinion of this court as autaority for the rule that plaintiff need not allege what he need not prove., but examination of that cas&C*. fact that the court was *128therein applying and enforcing a particular rule of pleading authorized by a particular statute, to-wit: Act 70 of 1886, providing that in suits against railroad companies for the loss of stock killed or injured hy them, it should he sufficient, in order for the plaintiff and owner to recover, to prove the killing or injury. The language of the Supreme Court in Sorrel v. Foster, which immediately precedes that part of the court's decision quoted in the majority opinion, to which I now dissent, reads as follows:

"It will he observed that this statute changes in an important respect the rule which obtained prior to its enactment. Then, the claimant owner must prove the killing or injury and the fault of the company. How, it entirely suffices for the owner to recover, that he prove merely the killing or injury."

Surely, the rules of pleading and evidence recognized in the above-cited case cannot be applied to the instant case.

Por the foregoing reasons, I respectfully dissent to the majority opinion herein rendered and am of the opinion that the judgment of the lower court, predicated upon the findings of the jury, should be toa**, affirmed.

MAY 17, 1923.