CONOLLY v. CRESCENT CITY R. Co. (Supreme Court of Louisiana. December 3, 1888.) 1. CARRIERS OF PASSENGERS-EJECTION OF SICK PASSENGER. Although a common carrier of passengers owes obligations to its well passengers as well as to those who are sick, and is bound to protect the rights of both, and although when the condition of one passenger, from sickness or otherwise, is such as to be inconsistent with the safety, health, or even reasonable comfort of his fellow passengers, regard for the rights of the latter will authorize the carrier to terminate the carriage by excluding him, yet this right cannot be exercised arbitrarily and inhumanely, or without due care and provision for the safety and well being of the ejected passenger. 2. SAME. A passenger stricken with apoplexy while riding on a street car, although attended with severe vomiting, to the inconvenience and great discomfort of other passengers, cannot be removed, while in a speechless and helpless condition, and laid in the open street, on a bleak, drizzling December day, and there abandoned with no effort to procure him attention, without a gross violation by the carrier of its duty as such, and liability for resulting damage. 3. SAME MISTAKE OF EMPLOYE. The mistake of the driver in supposing that the passenger was drunk, when the latter had ridden a considerable distance without misbehavior, and had been guilty of none except the vomiting occasioned by his illness, cannot excuse the company. 4. SAME-DUTY TO SICK PASSENGER. The defense admits the absence of any attempt whatever of the company to per form its duty of seeing to the care of the ejected passenger, and rests upon a denial of any such duty in the premises. Hence the kind and degree of the care to be exercised under the peculiar conditions which attend the operation of street railways in New Orleans are not involved. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; ALBERT VOORHIES, Judge. Action for damages by Mrs. Catherine Conolly against the Crescent City Railroad Company, for negligently leaving her husband, who was stricken with apoplexy, and ejected from the car in a helpless condition, to lie and suffer in the street. J. M. Bonner, for appellant. for appellee. Wilkinson & Armstrong and W. F. Ogden, FENNER, J. On a Sunday in December, at about 2 o'clock of the afternoon, Patrick Conolly, a sober, respectable citizen of 55 years, entered a car of the defendant's street railway, and paid his fare as a passenger. Nothing in the evidence indicates that he exhibited any sign of intoxication, or was guilty of the slightest impropriety of behavior, on entering the car, or until he had ridden a considerable number of squares, (from Terpsichore to Third street;) and the testimony is conclusive that, in point of fact, he was perfectly sober. After passing Third street he was suddenly stricken with apoplexy, accompanied, as the medical experts prove to be common, with severe vomiting. The car had numerous passengers to whom this vomiting undoubtedly occasioned serious discomfort and inconvenience. Some of them left the car on account of it, while others of those remaining suggested that he should leave the car, and took steps to call the attention of the driver to the necessity of removing him. The sick man had sufficient consciousness and sense of propriety left to observe this, and he said, "I will get out myself;" but, in rising to do so, he fell prone upon the floor, where he lay absolutely helpless. As far as appears, he never spoke again, and was incapable of taking any care whatever of himself. The driver then came back, and, with the assistance of a passenger, bodily lifted him, carried him out of the car, and laid him down in the street between the car-track and the gutter, between two and three feet from the former. The evidence is conclusive that, almost immedi ately afterwards, and while the car was moving off, he shifted his position, by some convulsive movement, so that his legs were across the rail of the track. This is proven by passengers who saw him in this position as the car moved away, and by others who came to him immediately afterwards. The driver, however, after thus summarily disposing of his stricken passenger, paid no further attention whatever to the matter. He took no steps to secure for him any relief or assistance. It is doubtful if he made any report of the incident to his employers, and, if he did, it was not acted upon. He simply went his way in a serene confidence that, as he expresses it, he had "done his duty," and, although he passed the point several times while his ejected passenger was still lying helpless on the adjoining sidewalk, he states that he does not recollect whether he saw him or not. A female passer-by, observing his perilous position across the track, went to his assistance, and, with the aid of a gentleman, removed and laid him on the sidewalk. Here he remained for more than four hours, on a bleak, drizzling December day, in the open street, without aid or relief in his terrible condition. At last the police authorities came to his assistance, and he was conveyed to the Charity Hospital, where he died on the following morning. It should need no parade of learned authorities to maintain the proposition that a common carrier cannot treat an unfortunate passenger, stricken with apoplexy while under its charge, in the manner above indicated, without a breach of the plainest obligations of its contract of carriage. If there were any precedent to the contrary, humanity would revolt at it, and it would be one "more honored in the breach than the observance." But there is no such precedent, and those cited by defendant's counsel are far from sustaining their position. No doubt a carrier owes obligations to its well passengers as well as to sick passengers, and is bound to protect the rights of both. When the condition of a sick passenger is such that his continued carriage is inconsistent with the safety, or even the reasonable comfort, of his fellow-passengers, regard for the rights of the latter will authorize the carrier to exclude him from the conveyance. Thus if he had cholera, or small-pox, or delirium tremens, or even if, as in this case, he were subject, from any cause, to continuous vomiting, utterly inconsistent with the comfort of other passengers in a street car, the right of the carrier, in protection of the latter's privileges, to exclude him would undoubtedly arise. Such is the reasonable doctrine of the cases cited. Lemont v. Railroad Co., 47 Amer. Rep. 238; Vinton v. Railroad Co., 11 Allen, 304; Murphy v. Railroad Co., 118 Mass. 228; Railroad Co. v. Weber, 33 Kan. 543, 6 Pac. Rep. 877; Railroad Co. v. Statham, 42 Miss. 607. But none of these cases hold that this right of exclusion may be exercised arbitrarily and inhumanely, or without due care and provision for the safety and well being of the ejected passenger. On the contrary, the duty of exercising such care and provision is universally recognized. Thus, in the Kansas case above quoted, the court said: "Under these facts, the propriety of his removal cannot be doubted. The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to take care of himself. The company could not leave him on the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort." This was a case of intoxication. And in the case most relied on (Lemont v. Railroad Co.) the supreme court of the District of Columbia, after recognizing the right of removal, is careful to add: "Of course, for an abuse of this discretion, or for any oppression in its exercise, the company would be responsible." In another case the court, while conceding the right of ejection, said: "It does not follow that the right may be exercised in such manner, under such circumstances, or against a person in such mental or physical condition, as that death or serious bodily harm Railroad will necessarily, or even probably, result from putting him off." Co. v. Sullivan, (Ky.) 16 Am. & Eng. R. R. Cas. 390. See, also, Hall v. Railroad Co., (S. C.) 5 S. E. Rep. 623, (March, 1888;) Lovett v. Railroad Co., 9 Allen, 557; Higgins v. Railroad Co., 46 N. Y. 23. We conclude, therefore, that the conduct of the defendant's agent in turning out this helpless and speechless sick passenger into the roadway of the street, and there leaving him, on an inclement day, without the slightest attempt, at the moment or afterwards, to have him taken care of, was a gross violation of its duty. The company attempts to shield its agent on two special grounds, viz: 1. That he supposed, and appearances justified him in supposing, that Conolly was drunk. Even if his illness had been the result of drinking, yet he had ridden a considerable distance without misbehavior, and was never guilty of any, except in the sudden access of vomiting, bringing about a condition of complete helplessness. In such case, the duty of the company to see to his being taken care of after ejection would have arisen, and would have been abridged by no fault on his part, because, until his sickness, he had been in fit condition to take passage, and had cominitted no voluntary misbehavior. Moreover, it is admitted that Conolly was not under the influence of liquor, and the assumption that he was so was a rash one, under the circumstances, and the company, not Conolly, must suffer for the mistake. 2. It is claimed that Conolly had signified his desire, and had attempted, to get out, and that the driver only helped him to accomplish his purpose. That he wished to get out while he thought he was able to do so, and to take care of himself, may be true; but to suppose that he desired to be put out, and left in the street after he had fallen down in an utterly helpless condition, is too preposterous to merit consideration. We are not here concerned with the measure of the duty which a street-railway company, operated under the conditions prevailing in the city of New Orleans, owes to a passenger in such unhappy case, nor with the kind or degree of care which it is bound to take for his protection. If we were, we should give due consideration to such conditions, and would be careful to adjust the duty according to practicability. But the defense here rests upon the entire absence of any effort whatever to perform the duty, and a denial that any duty arose in the premises. Such a defense can receive no sanction at our hands. Nothing remains for determination but the measure of damages. The cause of action arose prior to the recent amendment of article 2315, Rev. Civil Code, and the damages recoverable are those only which were suffered by Conolly. The case was tried twice before a jury. The first verdict was for $1,500, on which a new trial was granted. The second verdict, from which the present appeal is taken, was for $2,500. The evidence indicates that Conolly was not entirely deprived of consciousness, but his faculties were, no doubt, greatly obtunded. His sufferings were severe, and, though he must have suffered in any event, it would be a reproach to the medical art to suppose that it could not have found means to alleviate them had he received proper attention. The medical testimony indicates that the attack was necessarily fatal. The humiliation of his position was extreme, and it is probable that he felt that to some extent, because one witness states that when asked if he was drunk, he shook his head. On the whole, considering all the circumstances, we consider that an award of $1,500 will do justice. It is therefore ordered and decreed that the judgment appealed from be amended by reducing the amount thereof to $1,500, and that, as thus amended, the judgment appealed from be affirmed; plaiutiff to pay costs of appeal. JEFFERSON CITY GAS-LIGHT Co. v. CITY OF NEW ORLEANS. 1. MUNICIPAL (Supreme Court of Louisiana. December 3, 1888.) CORPORATIONS-CONTRACTS-CONSTRUCTION-CONSOLIDATION OF CITIES. Under the terms of the original contract of 1887, with the city of Jefferson, the company is entitled to $45 per annum for each gas-lamp put up with municipal authority, and used; and under the resolution of 1868 to $50 per annum for each lamp erected and used on the streets named in the instrument. It is also entitled to $45 per annum for each lamp raised and used with municipal authority on any other street in the former cities of Jefferson and Carrollton. By the act consolidating these cities with the city of New Orleans, the latter was burdened with the contract obligations of the former, which can in no way be impaired. The proof is insufficient as to part of the claim for a larger appropriation. 2. APPEAL-DECISION-AMENDMENT OF JUDGMENT. The judgment appealed from is amended by reducing the appropriation ordered from $45,000 to $28,150, the right of the company to more is reserved, and as thus amended the judgment is affirmed at appellee's cost. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; A. L. TISSOT, Judge. Sam Gilmore and T. M. C. Hyman, for appellant. F. N. Butler, for appellee. BERMUDEZ, C. J. The company complains that the city authorities have placed it on the budget of 1888 for $30,000, instead of $45,000, to which it is entitled for gas furnished and to be furnished the upper districts during such year, at the rate of $50 for each of 810 lamps, under contract with the former cities of Jefferson and Carrollton, to which the city of New Orleans has succeeded, burdened with their obligations. The prayer is that the budget be amended so as to raise the appropriation accordingly, and that eventually a tax sufficient to pay the claim be levied on all taxable property within the limits of the city. The answer practically is a general denial. Whatever else it may contain is argumentative. From an adverse judgment, the city appeals. The matter in controversy is one purely of fact, the questions of law raised being indisputable. We have carefully examined the contracts, the act of incorporation, the legislative statutes, the municipal resolutions and ordinances, and the other evidence adduced on the trial of the case, and have realized that, although under the resolution of April 27, 1868, of the council of Jefferson city the company be entitled to recover $50 per annum for each of the gas-lamps used on the streets therein named, it cannot demand more than $45 per annum under the original contract of April 24, 1867, for each of the other lamps erected and used in Jefferson city, and this it could do only where the same have been put up under municipal direction. No stipulation is to be found in the contract with the city of Carrollton of January 18, 1871, which would make the use of gas-lamps by it more expensive than for the city of Jefferson. Surely no provision exists authorizing the company to recover $50 per annum for each lamp, wherever erected and used within the two upper districts of the city, the Sixth and Seventh. Act 96 of 1869, which recites the two contracts of 1867 and of 1868, does not do so; and the act of incorporation of the company, which is also included, of June 12, 1868, is silent on the subject. Its solitary object was, as its title indicates, to ratify and confirm certain rights and principles granted by the city of Jefferson, and to ratify and confirm an act incorporating the Jefferson City Gas-Light Company, and to extend the rights and powers of said company. While, under a formal admission in the record, it appears that 563 lamps only have been placed on the streets named in the resolution of 1868, there is nothing to show that the remaining 247 lamps, which are not on the streets of Jefferson city, have been raised and lit at the instance of either of the cities, or of the city of New Orleans, beyond an ordinance of October 5, of 1882, authorizing the company to lay pipes and put up lamps in the Sixth district, and agreement to pay for the use of gas for 1886 and 1887 at $37.50 per annum for each of the 765 lamps then in existence. There is no proof to show how many lamps had been raised, and where used, on other streets at the bringing of this suit, and what agreement, if any, was ever entered into in relation to the lamps on streets not named. So that, conceding that the city is liable at the rate of $50 per annum for each lamp used on the streets named in the resolution of 1868, and of $45 per annum for other lamps erected and used, this court is left without means of ascertaining the amount to which the company may be entitled for the use of the lamps on the unnamed streets. Under the circumstances the claim of the company to $50 per annum can be presently recognized only for each of the 563 lamps on the streets named in the resolution of 1868, and its right to more for lamps put up on other unnamed streets reserved for future consideration. This means that the company is entitled to an appropriation for $28,150 on the budget of expenditures for 1888. Before concluding, it is proper to say that the position of the company to the effect that the rights which it has acquired in the premises, prior to the consolidation of the two cities of Jefferson and Carrollton with the city of New Orleans, are unassailable, under both federal and state constitutional guaranties, and that the concurrent obligation of the contracts, under which they became vested, have not been or could not be impaired by any constitutional, legislative, or municipal provision, and that eventually it is entitled to the levy of the tax claimed in the petition. It is therefore ordered and decreed that the amount of the appropriation specified in the judgment appealed from be reduced from $45,000 to $28,150; that the right of the company to the difference be reserved for ulterior consideration; and that thus amended said judgment be affirmed, at appellee's costs. ON REHEARING. BERMUDEZ, C. J. The relator contends that there is proof in the record that 117 lamps have been raised and lit by municipal authority from the city of Carrollton, but does not complain about the non-allowance for the remaining 130 lamps, or other parts of the judgment. The rights of the plaintiff to claim for both the 117 and 130 lamps have been fully reserved in the original decree, and continue so to be. A re-examination of the evidence does not satisfy us that we should on the strength of it now make allowance for the 117 lamps claimed. When the plaintiff shall claim for the 130 lamps, it will be no inconvenience for it to claim also for the 117 lamps, which, if it is proper, will be allowed on stronger proof. Clerical errors alluded to in the opinion have been corrected. Rehearing refused. FOSTER et al. v. AMBLER. (Supreme Court of Florida. December 14, 1888.) 1. APPEAL-REVIEW-REVERSAL. In a case where the bill seeks an account on alleged liability of the defendant, and the court gives a decree for the plaintiffs, with directions to the master appointed to take the account, which are unsatisfactory to the plaintiffs, and from which they take an appeal, this court will consider the whole case, and reverse the decree against the defendant, if found to be erroneous in charging him with any liability. 2. EQUITY-SWORN ANSWER-EVIDENCE. Where the sworn answer to a bill denies the allegations essential to sustain the case of the plaintiffs, the plaintiffs will fail if they do not overcome the answer by the evidence of two witnesses, or of one witness and sufficient corroborating circumstances. This case for the plaintiffs is founded on an alleged trust accepted by the defendant on a transfer of their stock in the Jacksonville & St. Augustine Railroad Company to him, which trust he denies in his sworn answer, claiming that |