Opinion
No. 4072.
October 5, 1970. Rehearing Denied October 19, 1970. Writ Refused December 14, 1970.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 478-726, WALTER F. MARCUS, JR., J.
Frank C. O'Halloran, Jr. and Charles R. Maloney, New Orleans, for plaintiffs-appellants.
A. R. Christovich, Jr. and C. B. Ogden, II, New Orleans, for New Orleans Public Service, Inc., defendants-appellees.
Porteous, Toledano, Hainkel Johnson, Stephen T. Victory, New Orleans, for Ryder Truck Rentals, Inc. and Nathanial Garrett, defendants-appellees.
CHASEZ, REDMANN and DOMENGEAUX, JJ.
Plaintiffs, husband and wife, appeal from the dismissal of their suit for damages resulting from the wife's cervical strain allegedly caused by a minor collision between a streetcar and a truck.
That plaintiff wife had a cervical strain is clear from the medical evidence. Her testimony would support the conclusion that she suffered the strain (perhaps a recurrence of an earlier injury) while a fare paying passenger on a streetcar. However, she testified that she felt the pain on turning her head to see the cause of the "loud scraping noise" which frightened her. She also testified there was an unusual backward and forward motion of the streetcar, causing her to fear the car would turn over or was leaving its tracks.
Plaintiff husband and wife both testified they reported her neck injury to the conductor or the motorman of the streetcar, but that he refused to take their names. This testimony is contradicted.
Other passengers' testimony is to the effect that the collision was quite minor; two passengers testified they would not have known a collision occurred except for the conductor's calling out to the motorman. The preponderance of the testimony is that both noise and sensation from the contact of the vehicles was minimal. The passengers testified either that they felt nothing, or "heard" a bump or thump.
The question presented is primarily factual, namely whether the collision caused the wife's cervical strain. Because her testimony as to the nature of the occurrence is inconsistent with that of the other passengers, and her (and her husband's) testimony of the attempt to report her injury is contradicted by the conductor who sought witnesses from among the passengers, we feel we simply cannot say the trial judge manifestly erred in rejecting the plaintiff wife's testimony.
We therefore cannot reverse the judgment appealed from, and it is accordingly affirmed.
Affirmed.