Kern v. N. O. Public Service

JANVIER, J. At about 7:30 at night, Kern, plaintiff, had just boarded one of defendant’s street ears and was standing near the conductor on the rear platform, when the car was brought to a rather sudden stop because the wheels of the rear truck “split a switch” and refused to follow those of the front truck. Kern claims that as a result of the jolt caused by the stop he was thrown violently against the upright bar near the center of the rear platform and that part of his body struck the emergency brake handle with the result that he was severely injured. The amount asked in his petition is $15,300. Defendant maintains ■ that when the car split the switch it was not derailed; that it was traveling at a very slow speed; that Kern was not thrown against any part of the car, but was braced by the conductor; and that he not,only sustained no injuries at all, but made no complaint of any kind. The district court rendered judgment for defendant dismissing the suit. In argument before this court and in his brief, counsel for plaintiff contended that there should be judgment for his client, but he admitted that the record would not justify an award in excess of $735. In view of the enormous claims presented in the petition, the voluntary reduction of the amount thereof to a sum comparatively so insignificant cannot be overlooked, and casts considerable doubt on the good faith of plaintiff and weakens the effect of his testimony in other particulars, because the issue presented depends solely upon the veracity of witnesses and through his entire testimony Kern’s willingness to exaggerate and to misstate facts is strikingly evident. The record is large. We have given to it most careful consideration, and we deem it unnecessary to say more than, even if there had been no testimony other than that given by Kern himself, it would have been most difficult to believe that he sustained any injuries as the result of the slight jolt which occurred, and in view of absolute proof to the contrary we need do no more than state that plaintiff’s story is entirely disproved by the countervailing evidence. The judgment appealed from is affirmed. Judgment affirmed.