author: McBride, judge.

text:
    Irene BENNETT, Widow of Romalis Wells, Deceased, v. Dr. Royall T. LILES and Walter Wiltz, Jr.
    No. 20652.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Rehearing Denied May 28, 1956.
    Ralph E. Orpys and Bernard A. Dempsey, New Orleans, for plaintiff and appellant.
    ■Kermit Frymire, New Orleans, for Dr. Royall T. Liles, defendant and appellee.
   McBride, judge.

On the afternoon of May 22, 1949, plaintiff was riding as a passenger in the 1941 Dodge sedan automobile owned and driven by John A. Jones, and she alleges that she sustained certain physical injuries when the, Jones' car collided with a 1947 Plymouth automobile owned by Walter Wiltz, Jr., but which was being driven at the time by Dr. Royall T. Liles. The Jones automobile was traveling on Laurel Street, a one-way thoroughfare, in a downtown direction. The Wiltz automobile was being driven toward the Mississippi River on Peniston Street.

The plaintiff filed this suit against Wiltz and Dr. Liles seeking to recover from them, in solido, for her personal injuries the sum of $4,693.28. Her petition alleges that the accident was caused as a result of the negligence of Dr. Liles in. that he was “speeding” at about 35 miles an hour and failed to accord the Jones automobile the right of way which it had under the provisions of the city traffic ordinance. The defense is that there was no negligence on the part of Dr. Liles.

Prior to the trial of the case, Walter Wiltz, Jr., was eliminated as a defendant on the motion of plaintiff and the case proceeded to trial as against Dr. Royall T. Liles, whom we shall refer to hereafter as the defendant. A judgment was entered dismissing plaintiff’s suit and she has taken an appeal.

Riding in the Jones automobile with its driver were the plaintiff and another woman and the testimony of the three is that defendant’s automobile came out of Peniston Street and ran into the left front portion of their car. Although neither Jones nor his passengers ever saw defendant’s car until the very moment of the collision, they say it was traveling at a speed of 35 miles per hour. It is interesting to note that while the plaintiff and her two witnesses emphatically claim that the other automobile was traveling at the rate of 35 miles an hour, they all differed among themselves with respect to the speed of the Jones automobile. Jones says he was not going “over 5 or 10 miles an hour,” the plaintiff states he was “going slow,” and Emaline Grenup believed Jones was traveling at about 25 miles per hour.

The defendant’s story is that he approached the intersection slowly and saw the Jones automobile coming from his right but he thought it was far enough away to permit his safely crossing the intersection. He claims that he was almost at a stop 'and then shifted into- low gear and proceeded to cross Laurel Street at about 10 to 15 miles an hour and when he had almost completely crossed, the Jones automobile “swung in” behind his car and struck it on the rear fender turning it completely around.

If what defendant says is true, that he attempted to negotiate the intersection at from 10 to 15 miles an hour when he saw that the Jones automobile was sufficiently far enough down Laurel Street to permit a safe passage, it is certain that defendant, who was going at the slower rate of speed, entered the intersection first. His testimony shows that he was nearly across when the collision occurred. While Dr. Liles could not say how fast the Jones automobile was being driven, we are inclined to believe that it was traveling at a fairly rapid rate of speed. We cannot believe that Jones was traveling at “not more than 5 or 10 miles an hour” or that he was “going slow,” but rather we think that Emaline Grenup’s estimate of the speed, about 25 miles, an hour, is more in keeping with the obvious facts. Such speed is in excess of the maximum permissive speed on Laurel Street.

This case involves the credibility and veracity of the witnesses and the trial judge who saw and heard them testify resolved the factual question in defendant’s favor, and according to our appreciation of the testimony there is no manifest error in that finding.

We are satisfied that the defendant’s automobile entered the intersection far enough in advance of the automobile in which plaintiff was riding to vouchsafe to it the lawful right of way to cross the intersection, and that Jones, who admits he was not keeping a proper lookout and did not see the defendant’s car at any time before the crash, failed to respect the right of way which defendant’s automobile had acquired by virtue of having pre-empted the intersection. There js no negligence, that we can see, on defendant’s part.

What the Supreme Court said in Booth v. Columbia Casualty Co., 227 La. 932, 80 So.2d 869, 870, is appropriate here:

“ * * * The plaintiff having preempted the intersection had the right to proceed and under the well-settled jurisprudence the automobile which first enters an intersection has the right of way over an approaching automobile and the driver who does not respect this legal right of the automobile which first entered the intersection to proceed through in safety, is negligent, even though the car thereafter entering the intersection is being driven on a right of way street. Gauthier v. Foglcman, La.App., 50 So.2d 321 and the authorities cited therein. * * * ”

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    Robert C. DOBSON et ux. v. Mrs. Emile KAHN et al.
    No. 20654.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Rehearing Denied May 28, 1956.
    Writ of Certiorari Denied June 29, 1956.
    Boswell, Loeb. & Livaudais, Marcel Livaudais, Jr., New Orleans, for plaintiffs-appellants.
    Porteous & Johnson, F. Carter Johnson,' Jr., New Orleans, for defendants-appellees.
   REGAN, Judge.

The plaintiffs, Robert C. Dobson, the .owner and operatorof a-Buick automobile, • and Mrs. Mattie Patterson' Dobson, his wife, a guest passenger, instituted this suit against the defendants, Mrs. Emile Kahn, the- owner of a Ford automobile,' Howard Gruenberg, the operator thereof, ahd State Farm Mutual Automobile Insurance Company, the liability insurer, endeavoring to recover the respective sums of $3,712.67 and $22,000, representing personal injuries, property damage, medical expenses, et cet-era, incurred as a result of an accident which occurred on April 15, 1953, at about 12:15 A.M., in the intersection of Louisiana Avenue and Prytania Street, in the-City of New Orleans,, Louisiana.

The defendants answered and denied liability resulting from the accident and, in the alternative, pleaded the contributory negligence of both plaintiffs.

From a judgment in favor of the defendants dismissing plaintiffs’■ suit and taxing an expert’s fee of $50 as costs, they have prosecuted this appeal.

The principal question posed ' for our consideration is one of fact and that is, whether the defendant, Gruenberg, was guilty of any negligence - which could, be considered the proximate cause of the accident? The trial judge answered this question in the negative and our examination of the record together with his written reasons for judgment, which are quoted in part hereinafter) disclose no error- in his factual or legal, conclusions. t

“This suit is the result of an automobile accident which- occurred on April 15, 1953; at or about 12:15 or 12:-30 a. m., at the corner, .of Prytania Street and Louisiana.,Avenue in this city. . .
“The plaintiff :was‘ ‘proceeding on Louisiana Avenue- from-'the river toward the lake, and- the defendant was proceeding up - Prytania -Street in the direction of Audubon Park.
“The defendant testified that when, he came to the intersection'there was a Fashing red light; that he stopped for the light; that-he looked :to'his left;: that- he saw the automobile of the plaintiff three-quarters of a block away; that he believed he had sufficient time to negotiate the intersection; and that he put his car in first gear and proceeded to cross; that he was virtually through the intersection, that is, that the front of his automobile was abreast of the neutral ground, the small neutral ground on the street, when the rear of his automobile was hit by that of the plaintiff, with such violence that it was swung around and into the traffic semaphore which was knocked down by the impact.
“The plaintiff, a merchant seaman in company with his wife, testified that he was coming out Louisiana Avenue at 20 to 25 miles per hour; that as he approached the intersection of Prytania Street he had a flashing yellow light; that he was driving on the left hand side of Louisiana Avenue; and when questioned by the court stated not up against the neutral ground but more or less straddling the left hand lane and the lane next. (He finally asserted ‘I wasn’t 4 or 5 inches from the.curb.’)
“He testified he never did see the automobile of" the defendant until it loomed up in front of him; he states the car shot out Prytania Street at a rapid rate of speed; and attributes this to the fact that he says there was a blind intersection in that there were hedges on the corner of Prytania Street and Louisiana Avenue which obstructed his view.
“His wife took the stand and testified that she did not really know how the accident happened; that all she knew there was an accident and she was injured, and she described her injuries, but in truth and reality she knows little of how it happened and never saw the automobile prior to the collision.
“She alleges and testified that because of this accident she had a scar on her leg, which is not necessarily a scar which is disfiguring to any extent; and she has had a low back pain since the accident; and produced, besides the medical reports of several doctors, Doctor H. Tharp Posey, a psychiatrist, who has recently been practising in New Orleans, and who testified she had a psychosomatic condition attributable to a law threshold to psychiatric disorder, which was triggered by this occasion; and he attributes her difficulties in early childhood, an unhappy first marriage, and in childbirth, as contributing factors to place her in such a position that the accident would cause her to have the psychosomatic condition which he says she now suffers.
“In the court’s opinion the plaintiff has greatly exaggerated whatever injuries she may have suffered in this accident.
“In so far as the question of negligence is concerned, the defendant in this case complied with the law and stopped; he did misjudge the speed of the automobile that hit him in the rear. Undoubtedly the plaintiff husband in this case was not paying strict attention to what he was doing, because he did not see what he should have seen, and, in the court’s opinion, prior to the impact he would have seen this automobile at that intersection,
sj«
“The court believes the defendant "in this case that he came to the light and did stop and did shift the gear and did see the automobile; and the court believes it was the duty of the plaintiff under the circumstances to have observed it and stopped.”

In the case of Bennett v. Liles, La.App., 87 So.2d 373, we observed, which rationale is appropriate here, that “ * * * the defendant’s automobile entered the intersection far enough in advance of the automobile in which plaintiff was riding to vouchsafe to it the lawful right of way to cross the intersection, and that Jones, [the operator of the car in which plaintiff was a passenger] who admits he was not keeping a proper lookout and did not see the defendant’s car at any time before the crash, failed to respect the right of way which defendant’s automobile had acquired by virtue of having pre-empted the intersection. There is no negligence, that we can see, on defendant’s part.”

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: ELLIS, Judge.

text:
    Godfrey CHEEKS et al. v. The FIDELITY & CASUALTY CO. OF NEW YORK et al.
    No. 4198.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.
    Guillory & Guillory, Eunice, for appellants.
    Plauche & Stockwell, Fred H. Sievert, Jr., Lake Charles, for appellees.
   ELLIS, Judge.

The plaintiffs filed this suit against the defendants for the wrongful death of Godfrey Cheeks, Jr., their illegitimate son. The plaintiffs were never married but it is not disputed that they were the natural parents of the deceased.

An exception of no right or cause of action was filed and following oral argument, the lower court without written reasons, maintained the exception and dismissed plaintiffs’ suit.

Plaintiffs have appealed.

This action is brought under Article 2315 of the LSA-Civil Code, and the sole question presented is whether the natural parents of an illegitimate -child can recover damages for its wrongful death.

The pertinent part of Article 2315 of the LSA-Civil Code provides: .

“Every act whatever of man that causes damage to another, obligés him by whose fault it happened to repair it; the right of this action shall survive in ,case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of ^.ny of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.”

The appellants urge the phrase in the quoted Article “surviving father and mother” does not exclude natural fathers and mothers but applies to them equally as well as to legitimate fathers and mothers; that the inclusion of natural parents is necessary in view of the following Articles of the LSA-Civil Code.

“Art. 13. When a law is clear and free from all ambiguity,- the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”
“Art. 14. The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.”
“Art. 18. The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.”

It is also contended that the decision in Lynch v. Knoop, 118 La. 611, 43 So. 252, 254, 8 L.R.A.,N.S., 480, to be discussed later, is archaic and is not in step with modern legal thought.

It seems that counsel for appellants, while conceding that the jurisprudence of our State is contra to his position, urges us to go beyond the interpretations of our Courts upon this subject.

In Lynch v. Knoop, supra, the same question was presented, and there our Supreme Court said:

“The right of- action, under Act No. 71, p. 94, of 1884, survives in the surviving mother and father. ‘The right of this action shall survive in case of death in favor of the minor children.’ Id.
“This does not include the natural mother and the natural father.
“The articles of the Civil Code regarding the mother of legitimate children all refer to a lawful mother. The-article of the Code relating to natural mothers and natural fathers is separate from those relating to the lawful mother and father.
“The two, the mother and the natural' mother, are treated in the Code differently or from a different point of view; one from the point of view that she has-a natural right, the other that it is a. statutory right extending no further than the terms of the statute.
“The following are some of the marked differences between the natural child and the legitimate child: The natural heir is to be recognized and to be placed in possession under special provisions of the law. He is a stranger to the succession from which he inherits until permission is obtained to exercise the right of an heir. It is different with the legitimate heir.
“Originally the right to damages for personal injuries was not heritable. The statute has to some extent made it heritable, but it does not express the intention to include the natural mother as a person in whom the right survives, and without some expressed declaration in that respect it cannot be considered as secured under the terms of the statute. The terms of the act cannot be extended so as to include a nat-. ural mother or a natural offspring.
“Legitimate relationship was the legislative intent.
“The right does not survive in the mother further than it does in the natural child. Civ.Code. Art. 3556, No. 8.
“Natural children, though recognized, are not children properly so called. The same is a logical conclusion as relates to the mother of the natural child. While she is the mother properly so called, she inherits from the natural child under the special provisions of our Code. Articles 256, 261, 212.
“But this can afford no comfort to the plaintiff, for the right of inheritance is special and embraces only such rights as are in themselves heritable. The statute did not enlarge the' rights of a natural mother or the mother of a natural child, and did not add to their number or extent. It only provided for the survival of certain designated rights, and as thus designated it includes the mother, and not the mother of the natural child.
“Learned counsel for plaintiff places great reliance in Marshall v. Wabash R. Co., 120 Mo. 275, 25 S.W. 179.
“We have considered the decision in which it seems contrary views were entertained and expressed. The contention states that the statute of Missouri is the same in every respect as ours — a statement which we accept as ■correct. True, the statute of Missouri as interpreted, by her courts is the law ■of that state, but it goes no .further-. It is persuasive not to a greater extent, however, than the decisions in other jurisdictions interpreting an independent statute without regard to prior laws and prior jurisprudence in the state in which the statute has been adopted.
“The courts of other states, as relates to a statute in itself, without reference to the laws and jurisprudence, are equally as competent to arrive at a correct solution. Moreover, the decision supra seems to stand alone.
“We find contrary views to it in the following:
“Am. & EngiEricy. of Law,' vol. 5, pp. 1095, 1096; vol. 8, p. 895, No. 2, note 3. See, also, Words & Phrases, vol. 2, pp. 1117, 1120, 1123, 1135, Verbo, ‘Legitimate Children.’ Tiffany on Death by Wrongful Act, § 85, .note 15. Black, Law & Practice in Accident Cases, § 109, Note 3.
“A different view than is expressed in the Missouri case is expressed in Robinson v. Georgia R.[& Banking] Co. (Supreme Court of Georgia, in 1903) [193 Ga. 168] 43 S.E. 452, 60 L.R.A. 555, 97 Am.St.Rep. 156. Also’ A[labama] & [V.] R. R. Co. v. Williams [78 Miss. 209] 28 So. 853, 51 L.R.A. p. 836, 84 Am.St.Rep. 624; Illinois] C[ent.] R. R. v. Johnson [77 Miss. 727] 28 So. 753, 51 L.R.A. 839; McDonald v. P[ittsburgh], C.[,] C. [& St. L. R. Co., 144 Ind. 459] 43 N.E. 447, 32 L.R.A. 309, 55 Am.St.Rep. 185.
“ ‘Child,’ used in the statute, means legitimate child. McDonald v. Southern R. R. [71 S.C. 352] 51 S.E. [138] 139, 2 L.R.A.,N.S., 640 (1905) 13 Cyc. 337.”

In Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842, 844, the Supreme Court disposed of the correlative of this question as follows:

“The ruling of the district court and of the Court of Appeal that plaintiff has no cause or right of action under Article 2315 of the Civil Code for damages resulting from the death of the father of her children, even though caused by the gross fault and negligence of the defendant, is supported by repeated decisions of this court.
“According to plaintiff’s allegations, her children are bastards. In Youchican v. Texas & Pacific Ry. Co., 147 La. 1080, 86 So. 551, this court held .that under our jurisprudence it is well settled that the provisions of Article 2315 of the Revised Civil Code, granting a right of action to a child or children for damages resulting from the tortious death of a.parent, have reference to legitimate children — ¡that is, children born in wedlock — or to children duly legitimated. See also Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A.,N.S., 480, 118 Am.St.Rep. 391, 10 Ann.Cas. 807; Landry v. American Creosote Works, 119 La. 231, 43 So. 1016, 11 L.R.A.,N.S., 387; Green v. New Orleans, S. & G. I. R. Co., 141 La. 120, 74 So. 717.
“The Court of Appeal 'cited and relied upon the above citéd cases in support of its ruling that the plaintiff had no cause or right of action under Article 2315 of the Code. Its ruling was correct.”

Since Lynch v. Knoop, supra, Article 2315 has been amended upon several occasions and the language used therein has never been enlarged or changed to include natural parents. This is indicative that our Legislature was in accord with the judicial interpretations of the words used therein and did not desire to broaden them.

The judgment of the District Court is affirmed.


text:
    Robert J. SMITH v. STATE of Louisiana through the DEPARTMENT OF HIGHWAYS of the State of Louisiana.
    No. 4210.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.

      W. Crosby Peguez, Jr., D. Ross Banister, Philip K. Jones, Baton Rouge, for appellant.
    Burton & Roberts, Baton Rouge, for ap-pellee.
   ELLIS, Judge.

This is a tort action wherein the plaintiff seeks damages for personal injuries as well as property damages to .his automobile. An accident occurred shortly after dark at the end of a service road on the Air Line Highway between Baton Rouge and Gonzales, Louisiana. The plaintiff alleges the Department of . Highways of the State of Louisiana did not maintain an adequate warning system at the end of the service road and that he drove his car into a ditch as there were no warning systems sufficient to apprise him of the danger. The service road was constructed by a contractor who was called in warranty. However, the defendant dismissed the call in warranty, and upon the trial below judgment resulted in favor of the plaintiff, and the defendant has appealed. The appellee answered the appeal seeking an increase of the awards given.

The Department of Highways, through contract, had constructed an interchange and certain other works at the junction of Jefferson -Highway and the Baton Rouge by-pass, in the Parish of East Baton Rouge. This last highway is known as the Air Line Highway and funs generally in a northerly-southerly direction. Parallel thereto there was constructed a service road which lay to the east of the Air Line Highway and ran practically parallel to it. Its surface was black-topped and was about 20 feet wide, connecting with the old highway at its southern end and running north for about one and one-half miles, where it ended. About 5 feet north of the end of this black-topped surface the embankment, whereon the surface was built, dropped off into a ditch which ran across the entire width of the roadway. This ditch was approximately 5 feet deep and about 12 feet wide. The service road continues along a right of way to the north of this ditch. The whole highway project, including this service road, was accepted by the Department of Highways on October 27, 1953. The accident occurred November 3, 1953.

When the contractor finished the job a barricade sign and three flares'were left at the end of this service road where it ran to the mentioned ditch. This sign 'at' the time of the accident was not permanently fixed to the earth and was about 4 feet high and 5 or 6 feet wide. It was on the extreme left side of the roadway and there was no barrier on the eastern 14 feet of the black top, leaving this right hand portion clear and unobstructed. The sign was placed at the end of the black-top surface, some S to 7 feet south of the ditch. There were no reflector lights, flares or any other warning devices. The evidence clearly discloses that the Department of Highways had not installed any warning of this road end or any signals of any nature.

At approximately 6 P. M. and after dark, the plaintiff was traveling from Port Vincet to Baton Rouge, when he entered this service road. He was driving at about 35 miles per hour upon the right hand portion of the black top. When the sign on his left came within the range of the head lights of his car he was unable to stop his vehicle and it went off of the end of the black top, down the embankment to the ditch and struck the far side thereof.

The testimony as to the size and shape of the warning signal varied, but shows the complete roadway was not barricaded and the right portion of the service road was clear and unobstructed, ending at a ditch. There is no contradiction that the sign had no reflectors, luminous paint or any other warning devices.

Rosier v. State, La.App., 50 So.2d 31, 35, discussed the legal duty to maintain a highway in a safe condition and the liability for failure to warn the public of a dangerous condition.

“The State of Louisiana, through the Legislature, having consented to the present suit, has voluntarily placed it- • self in the same legal position with reference to liability for failure to warn the public of the dangerous condition of the highway arising from the action of the elements, as that of the municipalities within the state with reference to the roads and streets within their respective limits. Following are recognized statements of the rules of law •applicable to the case before us:
“‘‘The duty of maintaining a highway in a safe condition, as discussed supra § 254, includes the duty of providing proper safeguards or giving adequate warning of dangerous conditions in the highway; and this duty is applicable to pedestrians as well as to travelers in vehicles. Accordingly, subject to the rules discussed- supra §§ 248-253 relating to the liability of persons and governmental bodies for injuries from defects or obstructions in the highway, the state or governmental body or officer charged with the maintenance of the highway is liable for neglect to guard, place lights around, or otherwise give warning of, obstructions and dangerous points in a highway, or for. neglect to furnish suitable barriers or guard rails, as where the road is undergoing repair, wherever necessary for the reasonable safety of travelers, but not otherwise.’ Volume 40, Corpus Juris Secundum, Highways, § 262, p. 306.
‘While the exercise of reasonable care may require a placing of signs warning of dangerous conditions, as where excavations have been opened in the public highway, or the highway terminates abruptly, or a bridge has been destroyed, warning signs need not be maintained at places which do not present an extraordinary condition or unusual hazard, as, for example, curves in the highway of an ordinary character. Where a barrier gives ample and timely warning as to the dangerous condition of the road, there is no duty devolving upon those in charge of the highway to post notices of the condition of the road some distance therefrom. In determining what is reasonable warning, the place at which the danger exists, the nature of the road, and the general situation and circumstances surrounding it are to be taken into consideration, as are also the kind of travel and the speed at which vehicles will probably travel on the road.’ 42 Corpus Juris, Motor Vehicles, Section 499, page 842, 60 C.J.S., Motor Vehicles, § 192.'
‘In the case of travel by motor vehicle as in the case of travel generally, due care upon the part of the highway authorities may require the safeguarding of dangerous places by the construction and maintenance of suitabla barriers, guard rails, or fenses.’ 42 Corpus Juris, Section 501, page 843, 60 C.J.S., Motor Vehicles, § 190.
“ ‘Negligence upon the part of the highway authorities may be predicated on their leaving a dangerous or defec- 1 tive condition of the highway improperly guarded.’ 42 Corpus Juris, Section 496, page 841, 60 C.J.S., Motor Vehicles, § 188.”

Also, in the same case, 50 So.2d at page 37 we find:

“No hard and fast rule can be laid down as to the type of warning or barricade that should be erected by road contractors or state agencies to warn the public of travel hazards ahead. The warning should be of a size and nature commensurate with the danger ahead. For instance, if a bridge is out, a complete barricade would be indicated. In a case where the road ahead is impassable, or passable only with extreme danger to life, a barricade with appropriate explanatory sign would be in order.”

In Reeves v. State, La.App., 80 So.2d 206, at page 209:

“There is a mandatory statutory duty of the Department of Highways to erect and maintain proper and adequate signs, signals and warning devices necessary for informing, directing, cautioning and warning the traveling public of any unusual situation or dangerous condition on the highways or to its approaches which may impede or obstruct the safety of traffic. The aforesaid change in grade or surface level of the road, the ‘jump-off’ and the end of the paving constitute such obvious and serious obstructions and dangers as are contemplated by the statute, LSA-R.S. 48:345, which, in part, reads as follows
, “ ‘The department shall erect and maintain all signs, signals, or devices necessary for informing, directing, cautioning, and warning the traveling public.’ ”

After reviewing the authorities, the Court, in the Reeves case, said:

“While no hard and fast rule can be laid down as to the type of warning or barricade that should be erected or maintained by the highway authorities to warn the public of such hazards, the warnings and means of protection should be of a size and nature commensurate with the danger that lies ahead. For instance, where the pavement ends, such as it did here, with the adjoining surface considerably below the paved surface, a complete barricade should be erected and properly lighted, at appropriate and safe distances from such dangers. Warning and detour signs should have been erected and maintained.”

The duty of the Highway Department in such cases is clear and the above cited authorities are supported by many other cases, both in Louisiana and other jurisdictions, the citation of which would serve no useful purpose herein.

The defendant has urged the plaintiff was guilty of contributory negligence. The record does not bear this out. The hazard presented to the plaintiff while traveling this service road was unusual and certainly was not discernible readily. Our courts have repeatedly held a motorist, has no legal duty to anticipate an unusual hazard where, there is no. adequate warning, but has,the right to presume the highway is safe for usual and ordinary traffic, even at night. See Dowden v. State, La.App., 81 So.2d 48, and authorities therein cited. In this case the driver of an automobile ran into an open section of a road from which a bridge had been removed. His speed was some 25 to 30 miles per hour and the weather was foggy. The accident happened at night, but the plaintiff was held not to be guilty of contributory negligence for failing to see this open section upon the theory that the 'drivers of vehicles have a right to presume the highway is safe for usual and ordinary traffic and are not required to anticipate extraordinary dangers to which their attention has not been directed by adequate warnings. In the present case the plaintiff was traveling at approximately 35 miles per hour and, under the circumstances, this speed was not excessive. He applied his brakes as soon as the sign upon his left came into view. Certainly the hazard was unusual and was not readily anticipated. The trial court who was familiar with the situs of the accident, stated, during the trial: “That may be the finest system of intersections that ingenuity or engineers can evolve, but it 'is one of the most puzzling places I have ever traveled.”

In Goodwin v. Department of Highways, La.App., 53 So.2d 161, 165, the Court, discussing contributory negligence in these types of cases, used the language following:

“Having found the defendant guilty of negligence in failing to erect and maintain a proper barricade, the only other question to be considered is whether plaintiff’s deceased husband was guilty of contributory negligence in not observing the black fence barricade in time to stop. The' courts of Louisiana have held that a driver of a vehicle must proceed on the road at night with caution, and should observe such a* lookout and keep his vehicle under such control as to be- able to timely stop same when his headlights reveal the ordinary hazards which may be expected on a road. In accordance with this ruling, drivers who have crashed into disabled vehicles occupying the drivers’ right lane have been held guilty of contributory negligence. However, when the hazard is unusual in nature and not readily discernible, the drivers running into same have not been held guilty of contributory negligence. Gaiennie v. Cooperative Produce Co., Inc., 196 La. 417, 199 So. 377; Rea v. Dow Motor Co., La.App., 36 So.2d 750.”

We conclude the defendant has not shown the plaintiff to have been guilty of any negligence.

Having concluded the defendant is liable we next consider the question of quantum.

The District Court awarded $686.84 for damages to plaintiff’s automobile. Five estimates of repair were filed into the record and this amount represents the lowest bid. Also the testimony shows this bid formed the basis for an adjustment with the collision insurer. This item is correct.

The hospital expenses in the amount of $118.95 was based upon a receipted bill from the Baton Rouge General Hospital and is not contested. This amount is also correct.

The amount of the bill of Dr. Joseph Noto was $225, $200 being for medical services rendered the plaintiff and $25 for a report. The defendant argues that the award for this item should be limited to the actual cost of treatment and the $25 for reports not be allowed as it is an expense of preparation for trial and not an item of damage. We will limit this item to $200.

Dr. Gladney’s bill for $14, and the $20.90 item for medicines are not contested and are correct.

The plaintiff alleged a nursing bill of $150 which was not allowed by the lower court, and we are asked to include this amount in the award of damages. The evidence that a nurse was hired and paid $15 a week for a period of 10 weeks to take care of the plaintiff after he left the hospital, is uncontradicted and since no written reasons for judgment were given, the failure of the lower court to include this amount is unexplained. It should be allowed.

The Court below awarded loss of earnings for 7 weeks at $100 per week covering the period from the date of the accident, November 3, 1953, until December 25, .1953. Plaintiff prayed for damages in the amount of $110 per week for a period of 18 weeks, from the date of the accident to March- 10, 1954,' when he testified he tried to do some trucking but was unable due to pains in his chest, and so had to hire another driver. His testimony was corroborated as to his period of disability and the testimony shows he was able to net $110 per week before thé accident. Without written reasons, we are unable to determine just how the lower court arrived at the period of 7 weeks or the amount of $100 per week. Both the amount earned and the period of disability being uncontra-dicted, the award for this item of damages should have been for 18 Weeks at $110 per week, or a total of $1,980.

The Trial -Court awarded $4,500 for personal injuries and damages. The plaintiff has answered the appeal urging damage awarded be increased to the amount prayed for, while the defendant contends this amount should be reduced to the sum of $3,000. Both cite as authority for their position the case of Greenberg v. New Orleans Public Service, La.App., 74 So.2d 771. The plaintiff maintains the award of $4,500 is in line with the same award in the Green-berg case, is fair and just for the temporary injuries received by him, but that it does not compensate for the permanent injuries he received. The defendant, on the other hand, urges the injuries received by the plaintiff here were not as serious as those received by the plaintiff in the Greenberg case.

The facts in the Greenberg case and the one at bar are very much the same insofar as the age of the plaintiff, jhe injuries, the hospitalization and confinement period are concerned. There is some difference in the exact injuries but the over-all facts to be considered in arriving at the damages to the plaintiff herein are so similar to the Greenbérg case as to be controlled by the award therein.

Plaintiff contends that the award of $4,-500 for personal injuries and damages is fair and just “but does not nearly compensate plaintiff for the permanent injuries.” He is asking that the judgment be amended by awarding $15,000 for permanent injuries to plaintiff’s heart as the result of “angina pectoris” brought about by the accident. It is true that plaintiff has shown by the testimony of Dr. Thomas Y. Gladney who examined him and treated him prior to the accident in order to determine whether he was in condition to have his teeth extracted that "Mr. Smith did not make any reference to his having chest pain” while he was treating him. At this time plaintiff did have high blood pressure. Plaintiff testified that after the accident he developed pains in his chest which have been diagnosed, by Dr. Milton L. Harris as angina pectoris. Dr. Harris stated that the result of his examination indicated plaintiff was suffering with arterio-sclerotic heart disease. Plaintiff was also found to have high blood pressure, enlargement of the heart and thickening of the heart.

Dr. Harris stated that plaintiff 'complained of pain in the chest on exertion when walking or climbing and he diagnosed this pain along with the physical findings as angina pectoris. Dr. Harris was asked if he had been treating plaintiff previous to Nov. 3, 1953, the date of the accident and had discovered the physical findings which he described, and up until the date of the accident the plaintiff had never complained of chest pains but after the accident he complained of chest pains upon any exertion or exercise, would the doctor consider that the accident had ’a causal connection with the angina pectoris, and he answered: “Yes, I think if I had been treating him before and he had not had pain and the pain did occur after the accident, I think I would feel it probably had some connection with it.”

On cross-examination Dr. Harris stated that plaintiff’s arteriosclerotic heart disease was of long standing and could not have been caused by the accident, although he had seen instances where ángina pectoris had been caused by an accident. Dr. Harris’ opinion was formed as the result of an examination of plaintiff made in February 1955 prior to the trial in October 1955 and he stated that he could not say whether plaintiff at the time of the trial was suffering from angina pectoris. On cross-examination Dr.- Harris was asked:

“Q. You stated in your examination that from a mental point of view it was impossible’for you to state definitely whether the pain and angina pec-toris is a direct result of heart damage associated with Mr. Smith’s accident or whether he had spontaneously developed angina pectoris in a previously existing arteriosclerotic heart. Are you still of that opinion? A. Yes, I am.
“Q. And you further stated the spontaneous onset of angina pectoris without any specific participating cause is a fairly * * * is fairly common in men of Mr. Smith’s age with the degree of arteriosclerotis heart disease which he had. Are you still of that opinion? A. Yes, I am.”

The testimony above outlined is the strongest in support of plaintiff’s claim.

Dr. Noto, who examined and treated plaintiff immediately after the accident and during his hospitalization and shortly thereafter stated that plaintiff could have an angina pectoris “which is very probably due to a severe contusion of the chest because as we readily can see he developed fluid in his lung. Quite naturally, if he developed fluid there is a big leak to the lung and fluid developed. The same thing could have happened to his heart. It could have contused the heart and probably that could have, given him an angina pectoris, but I didn’t have any cardiogram made. I don’t know anything about that, but that is a probability. That is my position on the case.” This doctor, however, did not diagnose angina pectoris when he examined plaintiff and frankly stated that at the time of the trial he did not know whether plaintiff was suffering from angina pectoris “but he complains of his chest.” Dr. Noto stated that he did not think plaintiff would have permanent effects "because I didn’t know anything about his heart.” Dr. Noto further intimated that a “pseudo angina” condition could have arisen as a result of the accident to plaintiff which is temporary.

The burden of proving a permanent rather than temporary angina was upon the plaintiff and there is no medical evidence in the testimony of cardiac examination subsequent to February 1955. Further, there is no testimony that plaintiff was attended by any doctor subsequent to his discharge by Dr. Noto, who did not know whether he was suffering from angina pectoris prior to or subsequent to the accident or at the time of the trial, as he made no examination for such a condition. He only knew that plaintiff complained of pain in his chest which was to be expected as his injuries were in the chest region.

In view of all the testimony, plaintiff’s angina pectoris could have been attributed to the heart disease which Dr. Harris described as being of long standing, or it could have resulted from an aggravation of the condition due to the injuries which he suffered in the accident. Further, his condition could have been “pseudo angina” which is temporary, rather than permanent, angina pectoris. The burden of proof was upon the plaintiff. The district court evidently did not think he had borne the burden and we cannot say that he was manifestly erroneous in so holding.

For the above reasons, the judgment of the District Court is amended by reducing the amount awarded to Dr. Joseph Noto as medical expenses to $200, and it is further amended by awarding $150 to plaintiff for nursing expenses, and plaintiff’s loss of earnings is hereby increased to $1,980.

In all other respects the judgment of the lower court is affirmed.