At this point, the carrier must show that the incident did not occur, that it was without the slightest degree of negligence in discharging the plaintiff, or that any negligence on its part was not the legal cause of the plaintiff's injury. Galland v. NOPSI, 377 So.2d 84, 85-86 (La. 1979); Davis v. Owen, 368 So.2d 1052, 1055 (La. 1979); Wise v. Prescott, 244 La. 157, 151 So.2d 356, 359 (1963). Schwamb, a fare-paying passenger on Delta's flight, proved that he was injured in flight and failed to reach his destination safely.
Because NOPSI is engaged as a common carrier operating a public conveyance, it owes a special duty to its fare-paying passengers, and there is a presumption that NOPSI has breached its duty when a fare-paying passenger is injured. This presumption shifts the burden to NOPSI to prove that it was not negligent. The law is stated in Davis v. Owen, 368 So.2d 1052 (La. 1979): Because plaintiffs were fare-paying passengers on a public conveyance and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence.
35 Cal.4th 1125, 29 Cal.Rptr.3d 352, 113 P.3d 41, 44 (2005) ("[A] carrier of persons for reward, as was true at common law, is subject to a heightened duty."); Thomason v. Miami Transit Co. , 100 So. 2d 620, 621 (Fla. 1958) (applying "the high degree of care imposed upon a common carrier"); Metro. Atlanta Rapid Transit Auth. v. Rouse , 279 Ga. 311, 612 S.E.2d 308, 308 (2005) ("A carrier of passengers, such as MARTA, must use extraordinary diligence to protect the lives and persons of its passengers.") (citing Ga. Code § 46–9–132 ; Sparks v. Metro. Atlanta Rapid Transit Auth. , 223 Ga.App. 768, 478 S.E.2d 923, 925 (1996) ; Millar Elevator Serv. Co. v. O'Shields , 222 Ga.App. 456, 475 S.E.2d 188, 191 (1996) ); Wright v. Midwest Old Settlers & Threshers Ass'n , 556 N.W.2d 808, 811 (Iowa 1996) ("A common carrier must generally exercise more than ordinary diligence for its passengers' protection.") (citing Rozmajzl v. Northland Greyhound Lines , 242 Iowa 1135, 49 N.W.2d 501, 504 (1951) ); Davis v. Owen , 368 So. 2d 1052, 1055 (La. 1979) ("Because plaintiffs were fare-paying passengers on a public conveyance and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence.") (internal footnote omitted); Mastriano v. Blyer , 779 A.2d 951, 954 (Me. 2001) ("A common carrier owes its passengers a duty that requires ‘the exercise of the highest degree of care compatible with the practical operation of the machine in which the conveyance was undertaken.’ ") (quoting Roberts v. Yellow Cab Co. , 240 A.2d 733, 735 (Me. 1968) ); Todd v. Mass Transit Admin. , 373 Md. 149, 816 A.2d 930, 934 (2003) ("A common carrier owes its passengers the highest degree of care to provide safe means and methods of transportation for them."); Wash. Metro. Area Transit Auth. v. Reading , 109 Md.App. 89, 674 A.2d 44, 49 (Md. Ct. Spec. App. 1996) ("It is well established that a common carrier, such as WMATA, is obligated to use the highest degree of care that is consistent with its mode of transport
The exercise of this jurisdiction, however, has been limited by the jurisprudential rule that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Stobart v. State, 617 So.2d 880 (La. 1993); Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La. 1990); Rosell v. Esco, 549 So.2d 840, 844 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978); Canter v. Koehring, 283 So.2d 716, 724 (La. 1978), See also Sevier v. USFG, 497 So.2d 1380, 1383 (La. 1986), West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La. 1979); Davis v. Owens, 368 So.2d 1052, 1056 (La. 1979); Cadiere v. West Gibson Prods. Co., 364 So.2d 998, 999 (La. 1978); A. Tate, "Manifest Error" Further Observations on Appellate Review of Facts in Louisiana Civil Cases, 22 La.L.Rev. 605, 611 (1962). In Rosell, supra, we noted that if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell vs. ESCO, 549 So.2d 840, 844 (La. 1989); Arceneaux vs. Domingue, 365 So.2d 1330 (La. 1978); Canter vs. Koehring, 283 So.2d 716 (La. 1973); Sevier vs. United States Fidelity Guaranty Co., 497 So.2d 1380 (La. 1986); West vs. Bayou Vista Manor, Inc., 371 So.2d 1150 (La. 1979); Davis vs. Owen, 368 So.2d 1052 (La. 1979); Cadiere vs. West Gibson Products Co., 364 So.2d 998 (La. 1978). In this same vein, this court has repeatedly declared that where the fact-finder has selected between two reasonable postulates, based upon the evidence available, that selection can virtually never be manifestly erroneous or clearly wrong.
Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978); Canter v. Koehring, 283 So.2d 716, 724 (La. 1973). See also, Sevier v. United States Fidelity Guaranty Co., 497 So.2d 1380, 1383 (La. 1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La. 1979); Davis v. Owen, 368 So.2d 1052, 1056 (La. 1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La. 1978); A. Tate, "Manifest Error" Further observations on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605, 611 (1962). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
Accordingly, if an appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owen, 368 So.2d 1052, 1056 (La. 1979). Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions.
Coco v. Winston industries, Inc., supra. However, as we held in Davis v. Owen, 368 So.2d 1052 (La. 1979), the survival damages should be shared equally by all members of the primary class of La.Civ. Code art. 2315 beneficiaries. Thus, of the $15,000 to be awarded for Charles Cheatham's pain and suffering, each of the two beneficiaries (Mrs. Cheatham and Charles Cheatham, Jr.) is entitled to one-half of the award, or $7,500.
Accordingly, if an appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owen , 368 So.2d 1052, 1056 (La.1979). Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions.
However, the mere fact that there is some evidence in the record which would support a basis for the jury's allocation of fault does not require that the allocation of fault be affirmed. Davis v. Owen , 368 So.2d 1052, 1056 (La. 1979). Although appellate courts must accord great weight to the factual findings of the trial court, appellate courts have a duty to determine if the "fact finder was justified in his conclusions."