author: McBride; judge.

text:
    LEWIS v. AMERICAN BREWING CO.
    No. 18472.
    Court of Appeal of Louisiana. Orleans.
    Oct. 7, 1947.
    Rehearing Denied Nov. 3,19-17.
    Writ of Certiorari Denied Dec. 15, 1947.
    H. W. & H. M. Robinson, of New Orleans, and John Sivcly Rhodes, of Jackson, for plaintiff and appellee.
    Porteous, Johnson & Humphrey, of New Orleans, for defendant and appellant.'
   McBride; judge.

Plaintiff, Mrs. Virginia Chichester, wife of A. J. Lewis, a resident of Edwards, Mississippi, sued American Brewing Company for $16,109.15 as damages for personal injuries and certain incidental expenses. Her petition alleges that on December 27, 1944, at about 8:40 o’clock, P.M., whilst walking upon the sidewalk on the uptown side of Bienville Street between Royal and Bourbon Streets, in New Orleans, she stumbled over a wooden ramp lying adjacent to the sill of a door of the brewing company’s building. This ramp was 36 inches wide and measured 7¾ inches in height at its end adjacent to the building, and then tapered down to the level of the sidewalk, having a length of 27 inches. It was described by defendant’s witnesses as a wooden runway over which handtrucks were wheeled from defendant’s plant to the sidewalk. On the evening in question several steel drums of broken glass had thus been removed from the building, and the ramp was permitted to remain in place as there were other truckloads of materials to be hauled out to the sidewalk. As each handtruck came from the building the night foreman of the brewery would stand on the sidewalk to warn pedestrians.

The negligence charged against the defendant is that its employees negligently created a hazard to pedestrians in permitting the ramp to remain upon the public sidewalk. The defense is a denial of negligence. The answer alleges that the locale of the accident was brilliantly lighted; that the ramp extended only partly across the sidewalk from the wall, and that there was an adequate space of S feet upon which pedestrians could walk; that the ramp did not constitute a dangerous obstruction as it was conspicuous and could have been easily discerned by any person exercising ordinary or reasonable prudence, and that such person would not have failed to see it. In the alternative, defendant charged the plaintiff with contributory negligence such as to bar a recovery.

The case was tried by jury in the district court and plaintiff was awarded the sum of $5,000. Defendant has appealed and plaintiff has filed her answer to the appeal praying that the award be increased to the amount claimed in her petition.

There is no dispute that at the time al-plaintiff did fall at about the place where the ramp was situated. One of defendant’s witnesses admitted that upon hearing a commotion he proceeded to the sidewalk and found that Mrs. Lewis had fallen alongside the ramp.

At the time of the accident plaintiff and her husband, together with four of their friends, were walking upon the sidewalk adjacent to defendant’s building; a Mrs. Gaddis and a Mrs. Montgomery were about 15 feet in front of Mrs. Lewis and Mr. Gaddis, and the latter couple were followed by Messrs. Montgomery and Lewis who were several feet behind them. Mrs. Lewis decided to join Mrs. Gaddis and Mrs. Montgomery and called to them to wait for her. She then proceeded forward and after taking a few rapid steps suddenly fell. Defendant’s counsel argue that there is no evidence demonstrating that the fall was due to plaintiff’s contact with the wooden ramp, and suggest that she slipped and as a result fell to the pavement of the sidewalk. However, we have carefully reviewed the testimony and are convinced that plaintiff did stumble over the ramp. All of the persons who were walking in the party with plaintiff at the time (with the exception of Mrs. Gaddis who, at the time of the trial was deceased) testified that Mrs. Lewis fell and that when they went to aid her they observed that she was lying partly on the wooden ramp. The testimony of Mrs. Montgomery is to the effect that plaintiff “stumbled over something” and when she reached her she saw that “it was the platform.” Mrs. Lewis stated that after she had taken the few rapid steps her left foot struck the ramp causing her to fall.

The defendant contends that the locus of the accident was brilliantly lighted and that Mrs. Lewis should have seen the ramp had she been paying the slightest attention to where she was walking. However, there is sharp conflict in the testimony as to the extent of the illumination. Witnesses for the defendant testified that above the sidewalk and extending over it for the full length of the brewery building, there is a glass canopy in which are located four electric lights, and that immediately in front of the building there exists an overdeck which connects the building on the uptown side of the street with the building on the opposite side; that painted on the overdeck is a sign advertising the product of defendant which is lighted by four high powered spot lights, two of them being located on the building on one side of the street and two on the building on the other side. These witnesses testified that the lights are sufficient to brightly illuminate the sidewalk, and one employee of the brewery stated that on several nights he had without difficulty read a newspaper while the lights were burning. On the other hand witnesses for plaintiff testified that the vicinity was only dimly lighted, and that the ramp could not have been readily seen unless one using the sidewalk paid particular attention to it.

But be that as it may, Mrs. Gaddis and Mrs. Montgomery, who were walking ahead of Mrs. Lewis, had passed the ramp, and the latter testified that they did not observe it. Plaintiff also testified that she did not know of the existence of the ramp and did not become aware''of it until she stepped against it, and none of the other persons with her saw it until the accident occurred.

Counsel for plaintiff argue that the color of the ramp blends with that of the sidewalk and from our examination of the photographs in the record this contention would appear to be correct. The ramp, which is unpainted, is worn and discolored and appears to be inconspicuous, and we believe for this reason the attention of the persons in the Lewis party was not drawn to it until Mrs. Lewis’ fall. From the testimony as a whole, and from a careful study of the photographs we are impelled to conclude that by permitting the hazardous obstruction to remain unguarded on a public sidewalk the employees of defendant were guilty of gross negligence. This is particularly true when 'it is considered that the ramp is not a large one and was located off to one side of the sidewalk. It was not in such a position that a pedestrian would readily see it unless by chance he actually had his eyes focused in the vicinity in which it was located. Frederick Sandoz, one of defendant’s employees, admitted on cross examination that the management of defendant ordered him to remove the wooden ramp from the sidewalk whenever it was not in actual use. This bit of testimony indicates to our minds that defendant knew of its dangerous propensities.

The law requires that a pedestrian need only exercise ordinary care when traversing a sidewalk or street and it is not necessary for him to look constantly where he is going. He has the right to assume that the roadway is safe and free from hidden dangers or obstructions. The rule is stated clearly in the case of Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58, 59, where the Supreme Court said:

“All that is required of a pedestrian upon a street or sidewalk is ordinary care, and this does not necessitate his looking constantly where he is going. He has the right to assume that the roadway is safe for travel. Weber v. Union, etc., Co., 118 La. 77, 42 So. 652, 12 Ann.Cas. 1012; McCormack v. Robin, 126 La. [594] 598, 52 So. 779, 139 Am.St.Rep. 549.”

In Blume v. City of New Orleans, 104 La. 345, 29 So. 106, 107, the defendant was held responsible for plaintiff’s injuries caused by a defect in the sidewalk. The Supreme Court said:

“ * * * Repeated decisions have settled that municipal corporations owe it to the public to keep the sidewalks in such condition as will not expose the pedestrian to injury. The banquettes are to be kept in a condition safe enough to walk on in the night time as well as during the day. * * *
“The plaintiff, it appears, was ordinarily careful. She had not before passed at night on the banquette at the place in question. The banquette was not safe. Plaintiff was injured while exercising due care. * *

In Degeneres v. Pan-American Petroleum Corp., La.App., 153 So. 481, 482, the plaintiff tripped over a pipe adjacent to a filling station which projected 2½ inches through the sidewalk, and was allowed to recover damages for his injuries. The court said:

“ * * * The projecting pipe, previous to the time it was lowered, was visible when looked for or looked at, but it was not an obvious object to people walking along the sidewalk in front of the station and not purposefully looking downward for some obstruction of the kind. To them it was inconspicuous and seldom noticed. The conclusion is justified that it was generally unseen, except after having been struck by the foot, which only occurred now and then. * * *
“A sidewalk is a part of the public street, and the public street is for the common use of a city and its inhabitants and strangers alike. Civil Code arts. 450, 454, 458.
“A right of action exists in our law, Civil Code, articles 2315, 2316, 2317, in favor of a party walking along a sidewalk, using ordinary care as he walks, who suffers injury as a result of an obstruction placed in the sidewalk unlawfully, against the party or corporation responsible for the obstruction being in the sidewalk.”

In Strickland v. Istrouma Water Co., La.App., 164 So. 347, 348, the defendant was held guilty of negligence in permitting an uncovered water meter box to remain near the edge of the sidewalk, and the boy who fell into it was found not guilty of contributory negligence since “ * * * It could have been stepped into, without being observed, by a party walking on the sidewalk, who was not giving attention to where he was placing his feet * * especially since it was not in the center but off to the side; that it was “ * * * not apt to be observed by one walking ahead, unless looking for holes, * * *.”

Counsel for defendant argue that plaintiff was guilty of contributory negligence in not looking where she was walking and because she failed to observe the ramp. Several cases are cited in support of the plea. In each the plaintiff was held guilty' of contributory negligence for failure to observe obstructions which were present on the sidewalk, but in each case the court found that the obstruction was conspicuous and could and should have been readily observed. For instance in Antoine v. Saxton Hardware Co., 10 La. App. 427, 121 So. 371, 372, the plaintiff stumbled over one of the conventional, penny-slot type scales which was located in front of defendant’s store. We held that the plaintiff was contributorily negligent for failing to observe the scale. We said:

“It is a well-known fact that weighing machines such as the one in question are found on almost every block in the business section of New Orleans, and it is also manifest that they can be easily seen by any person in possession of the sense of sight. It seems to us, therefore, that the doctrine announced in the Burke Case, to which we have referred, is authority for us to hold that a person stumbling over such a machine in broad daylight cannot recover for any injuries which may be sustained.”

In Douga v. Ancona Baking Co., La.App., 193 So. 271, 273, another of the cited cases which was decided by this court, a child fell over a bread box lying on the sidewalk. The scene of the accident was well illuminated and the box, which was from 14 to 18 inches high, 3 feet long and 3 feet broad, was painted a conspicuous color. It was lying almost squarely in the center of the sidewalk. We held against plaintiff on the ground that the child was guilty of contributory negligence, saying:

“It is very true that a pedestrian on a sidewalk is not required to keep his eyes constantly fixed on the sidewalk, but it is equally true that such a pedestrian cannot entirely neglect to use ordinary precautions in observing where he is going.
“ * * * That the light was abundant and the obstruction was obvious to anyone paying the slightest attention. * * * ”

The cited cases, we think, can be distinguished from the one we now consider. In those cases the obstructions involved were quite large and were easily discernible. But in the instant case the ramp, at its highest point, was only 7¾ inches above the sidewalk. Moreover it was not near the center of the sidewalk where it would likely have been noticed, but was situated off to one side and rested against defendant’s building. Then too, in the Douga case the court observed that’ the bread box was “conspicuously painted,” and in the Antoine case the scale was “painted with white enamel paint, and is quite conspicuous.” But the wooden ramp in the instant case was unpainted, much worn, and bore many stains.

Among the items claimed by plaintiff is the value of clothing ruined in the accident amounting to $57.35. Her testimony regarding the loss is uncontradicted and she is undoubtedly entitled to recover this amount.

Plaintiff also claims $1,051.80 for physicians’ fees, hospital bills and miscellaneous expenses. In regard to this the defendant contends that plaintiff cannot stand in judgment, as it is an asset of the community of acquets and gains existing between Mr. and Mrs. Lewis, and that under our law the husband, in his capacity of head and master of the community, is the only one who might sue for its recovery. Our attention is directed by counsel to the cases of Danove v. Mahoney, La.App., 176 So. 404, Simon v. Harrison, La.App., 200 So. 476, Lanza v. DeRidder Coca Cola Co., La.App., 3 So.2d 217, and White v. Coca Cola Bottling Co., La.App., 16 So.2d 579, to the effect that the husband as head and master of the community, and not the wife, must sue for recovery of medical expenses expended for the wife. However, in each of the cited cases the plaintiff was a married woman domiciled in Louisiana, and the evidence showed that her medical expenses had been paid out of community funds, and it was held that the wife could not champion the rights of the community and that the husband must bring the suit for reimbursement.

In the instant case, however, we are confronted with a different situation. Plaintiff’s petition alleged and she has proved that she is a citizen of Mississippi. She alleged and proved that she operates a cotton gin in that state which is owned separately by her, and that all of the expenses in question were paid for with her own funds accruing from that business.

Plaintiff produced ás a witness a member of the Mississippi bar in an effort to show what the Mississippi law is respecting the rights of married women in that state. Counsel for defendant strenuously objected to the introduction of the testimony, the basis of the objection being that plaintiff had not alleged in her petition what the law of Mississippi was and that, therefore, as she had not alleged it she could not prove it. The objection was overruled by the trial court. Defendant argues that the objection should have been sustained, and urges us to ignore the testimony and indulge in the presumption that the law of Mississippi is the same as that of Louisiana. We find it unnecessary to pass upon the objection or to consider the questioned testimony. Under the doctrine announced by the Supreme Court in the case of Marlatt v. Citizens’ State Bank & Trust Co. et al., 180 La. 387, 156 So. 426, 428, we are bound to take judicial noticé of the prevalence of the common law in a sister state and that under that system of law the community of acquets and gains between the spouses as recognized here is unknown. The Supreme Court said in that case:

“The general rule that the law of another state or country must be pleaded and proved like any other fact is subject to the exception that judicial notice will be taken of the prevalence of the common law in a sister state and of the rules of the common law there prevalent as well. This is because it is a matter pertaining to history of which the court is bound to take judicial notice that the common law is the basis of the jurisprudence of the state in question. Malpica v. McKown, 1 La. 248, 20 Am.Dec. 279; Copley v. Sanford, 2 La.Ann. 335, 46 Am.Dec. 548; Rush v. Landers, 107 La. 549, 32 So. 95, 57 L.R.A. 353.
“In Copley v. Sanford this court took judicial notice of the fact that the common law is the basis of the jurisprudence of the state of Mississippi and'.declared it was our duty to know that the vendor’s privilege upon movables recognized in our Code is unknown in that system, and that at common law he who absolutely sells and delivers a movable is, in the distribution of the assets of a succession among creditors, a mere ordinary creditor. The court said: ‘Unless the common law has been modified by statute in Mississippi which has not been proved nor even suggested, Watson (the vendor) would have had no privilege as vendor in Mississippi, and as such can have none here.’
“As pointed out by Dr. Harriet S. Dag-gett, associate professor of law in the Louisiana State University, in her excellent treatise on ‘The Community Property System of Louisiana with Comparative Studies,’ at page 3, the community property system prevails in various forms in only eight states of the Union. These states are Arizona, California, Idaho, New Mexico, Nevada, Texas, Washington, and Louisiana.
“Applying to this case the rule announced in Copley v. Sanford, which is in accord with the jurisprudence of this state; we ■must take judicial notice of the fact that the ■common law forms the basis of the jurisprudence of Iowa, and it is our duty to know that the community property system as recognized in our law is unknown to the ■common law and is not prevalent in that state. That unless the common law has been modified by statute in Iowa, which has not been proved nor even suggested, the property acquired in Iowa by Mrs. Marlatt during her marriage was not considered as community property in that state and can-, not be considered as such in this state.”

It is a well known historical fact that the common law prevails in the state of Mississippi and as a corollary the community of acquets and gains between a husband and wife does not exist therein. The •plaintiff and her husband are citizens of that state and as to them there was no community property. Mrs. Lewis for the purpose of this suit is in the same situation as a woman in Louisiana -who is separate in property from her husband. She has the •right to bring an action in her own name to •recover damages sustained by her property •or estate. Her husband had no interest in •the asserted claim and accordingly possessed no right to bring the action seeking •its recovery. The evidence is undisputed •that the expenditures were made from the •earnings of plaintiff gained from the opera-ition of her cotton gin business, and that •the expenses were occasioned as a result of ■the accident. It is our opinion that she is •entitled to recover therefor from the defendant in her own name and for her own .account.

Plaintiff’s counsel contend that the judgment below is inadequate and that because of the nature of the physical injuries sustained by Mrs. Lewis we should increase ;the amount allowed. The evidence shows that following the accident Mrs. Lewis, who was 56 years of age, was conveyed to her hotel in a very nervous state and experiencing considerable pain; that she remained in New Orleans for about 3 days .and was then taken to Vicksburg, Mississippi, where she was admitted to the Mercy Hospital. She remained in the hospital •from December 30, 1944, until January 15,. 1945. It was found by the physicians that echisnotic spots developed over her left sacroiliac joint and the ligament was torn. She was administered opiates for relief of pain and infrared therapy was employed. It was found necessary for her to wear a special sacroiliac support, and upon leaving the hospital for her home she was advised that she should sleep with a board located under the mattress of her bed. On February 8, 1945, she was again taken to the hospital at Vicksburg for further study and treatment and remained there until February 21st. Plaintiff’s knee, which was still swollen, was again x-rayed and her back and spine were reexamined. It later developed that plaintiff had suffered a ruptured disc between the 4th and 5th lumbar vertebrae. The medical testimony, which is undisputed, shows that Mrs. Lewis had three distinct injuries: to the left knee, to the left sacroiliac joint, and the ruptured intervertebral disc. At the time of the trial in the district court, which occurred 14 months after the date of the accident, plaintiff was still under the care of her physician, Dr. Street. She still wore the sacroiliac belt and testified that she had continual pains.

Dr. Street testified:

“Well, I think she should be entirely cured in the course of time from the knee injury, and I believe as far as the sacroiliac injury is concerned she is going to have to wear a sacroiliac support for an indefinite period of time. Now, what the future of the ruptured disc holds for her, we do not know. If the symptoms continue as they are now, or become aggravated as they frequently do, she will require an operation on her back.”

The doctor estimated that about 75 or 80 per cent of the cases can be relieved by operation, but there is no way of forecasting in advance which cases can be cured.

Counsel for the defendant cite the case of Burke v. Toye Bros. Yellow Cab. Co., La.App., 28 So.2d 369, decided by this court in December 1946. Mrs. Burke was 63 years old and suffered general contusions, a sprained left ankle, disc injury to the 7th vertebras, remained in the hospital for 7 days and was confined to bed at home for several weeks. Twenty months after the accident she was still suffering and her physician suggested an operation to correct the disc injury, which was characterized as a major operation. Her medical expenses were $465.23 and her loss of wages aggregated $544.51. She was awarded $4,000.

However, Mrs. Lewis’ injuries appear to be more serious than those suffered by Mrs. Burke, and she sustained a sacroiliac injury in addition to the ruptured disc. The jury below awarded her $5,000 and did so evidently on the theory that whereas the injuries were more severe than those sus-j tained by Mrs. Burke she should have $1,000 more than was awarded to the latter.

It appears to us that the amount awarded is adequate and should neither be increased nor decreased.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    ANDERSON v. H. & H. MACHINE SHOP et al.
    No. 2922.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Brumfield Hebert & Rush, of Baton Rouge, for appellant.
    Bagwell & Williams, of Baton Rouge, for appellees.
   DORE, Judge.

Plaintiff instituted this suit against the H. & H. Machine Shop, a partnership, and its insurer, the Century Indemnity Company of Hartford, Connecticut, for compensation under the total permanent disability clause of the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, subject to payments received for a period of thirty weeks at $20 per week, the maximum amount per week allowed, for the loss of the right index finger caused by accident occurring on May 24, 1945.

Plaintiff was employed by H. & H. Machine Shop, as the operator of an air hammer and on May 24, 1945, at about 7:30 A. M., while in the course and scope of his said employment engaged in the chipping .of excess welding and air hubbies on iron and similar sheet metal on a sea barge, the barge was lifted, and upon being let down, through some unexplained reason, it fell on plaintiff’s right index finger. As a result of the accident the finger was severely crushed, and thereafter plaintiff received emergency treatment under a general an-aesthetic, by Dr. J. W. Watson. A metal splint and traction was applied to the finger and subsequently the finger healed, but became stiff because of restricted motion of the phalangeal joints.

It is shown by the evidence that thereafter, on July 2, 1945, plaintiff consulted Dr. J. R. Godfrey with reference to his stiff finger, and told Dr. Godfrey that he desired to have the finger, removed because it interfered with his work as operator of an air hammer. Dr. Godfrey testified that the request of plaintiff appeared logical to him and that after consulting with a representative of the defendant insurance company, and securing permission to perform the operation, he removed the finger on August 8, 1945, by disarticulating it at the metacarpophalangeal joint, and that by October 6, 1945, both he and the plaintiff were satisfied with the healing of the amputation, and he therefore discharged him as fit to return to work as an air hammer operator.

It is established by the evidence that all of plaintiff’s medical expenses have been paid and that the plaintiff has been paid compensation at the maximum rate of $20 per week for 30 weeks as provided by the Act, Section 4398, Paragraph 1(d) 2 of Dart’s Statutes, Act No. 242 of 1928, § 8, subd. 1(d) 2, p. 357, “for the loss of * * * index finger.”

The contention of plaintiff is that regardless of the fact that he has been paid the full compensation for the loss of his right index finger, he is still entitled to compensation for 370 additional weeks for the reason that he is totally and permanently disabled from performing the duties of an air hammer operator and that consequently his claim is not limited by Paragraph 1(d) 2, Dart’s Statutes, but by Paragraphs (a), (b), (c) of said section of the Compensation Act.

• The defendants contend that the plaintiff is not disabled from performing his usual duties as an air hammer operator and that consequently he has received all the compensation to which he is entitled for the loss of an index finger.

After trial of the case, the lower court came to the conclusion that “The preponderance of both the medical and lay testimony is to the effect that notwithstanding removing of plaintiff’s index finger, which he requested, he could; if he would, be able to do successfully exactly what he did before the accident and subsequent removal of his finger.” In view of that conclusion, the trial judge naturally rendered judgment in favor of defendants and dismissed the plaintiff’s suit. Plaintiff has appealed.

The testimony in this case, as pointed out by the trial judge, preponderates to the effect that the removal of plaintiff’s finger 'has not in any way created a disability which should prevent him from resuming his former work as an operator of an air hammer.

It is true that plaintiff himself complains that the end of the stub of his amputated finger is sensitive and that he does not believe that he could operate an air hammer because of that fact and because of the further fact that his grip is not what it was before the accident and operation. However, he admits that he has made no attempt to ascertain whether or not he could again operate an air hammer. In other words, as far as he is concerned, it is a matter of belief.

One of his medical witnesses, Dr. L. J. Kern, corroborates his testimony as to the sensitive stub of the amputated finger to some extent, but that testimony is based on what the plaintiff told him and on what could possibly be true, and on these symptoms, almost entirely subjective, he states that plaintiff has a possible neuroma, and that pressure on the site of the operation could cause pain. Dr. Kern estimates the loss of use of the right hand at 20% based on the fact that he has only three fingers and a thumb left, and states that because of this disability he has a 20% loss of grip in his right hand.

The other medical witness for plaintiff, Dr. Charles H. Voss, came to the conclusion that plaintiff has a 25% loss of the use of his right hand and also testified that there was a tenderness of the stump of the amputated finger, and that in his opinion he could not operate an air hammer as efficiently as he did before the accident or for a full 8-hour day.

On the other hand, Dr. J. R. Godfrey, who performed the operation, testified that the operation was entirely successful and that in his opinion there should be no pain in the stump and that, moreover, considering the nature of the work of operating an air hammer, the loss of this finger does not disable the plaintiff from performing that work. Dr. J. W. Watson, the first physician whom plaintiff consulted after the accident, testified to the same effect as Dr. Godfrey.

As far as the lay testimony is concerned, we have the testimony of Mr. M. W. Harp, an expert operator of air hammers. He testified that he met with an accident which •disabled the second and third fingers of his right hand and that this disability in no way interfered with his operation of air hammers ; that in the operation of an air hammer you use mainly the palm of your right hand, the thumb of your right hand and your left hand; that -consequently the plaintiff herein would in no way be bothered by the loss of his right index finger in the operation of air hammers.

Another experienced operator of air hammers, V. E. Burns, testified very much to the same effect as Mr. Harp. He states that he suffered an injury to his right index finger which rendered his index finger useless; that in spite of that injury he has successfully operated air hammers, and that the index finger has very little, if anything, to do with such operation; that in chipping there is but little vibration in the right hand in that the chisel and the gun are held in ■position more with the left than with the right hand.

The trial judge, in his reason for judgment, states that he was particularly impressed by the testimony of Messrs. Harp and Burns who expressed the opinion that the absence of plaintiff’s index finger, which is not used in the operation, would not interfere with the operation of an air hammer by plaintiff. We are likewise impressed by the testimony of these witnesses and also by the testimony of Dr. God-frey who testified that he was acquainted with the operation of an air hammer, and who likewise stated that the absence of the index finger would not, in any way, interfere with plaintiff’s operation of the air hammer.

The plaintiff complains, in brief and in oral argument, that the trial judge laid too much stress on defendant’s evidence and too little, if not disregarding it altogether, on plaintiff’s evidence, particularly the testimony of Drs. Kern and Voss, and of plaintiff himself. We cannot agree with him. In so far as Dr. Kern’s testimony relative to the ability of plaintiff to operate the hammer, his opinion is based altogether on a false premise. He states that he based his opinion on the fact that plaintiff “claimed pain when trying to use the hammer.” The admitted fact is that plaintiff never attempted to use the hammer after the amputation of his index finger. This Doctor also indulged in a diagnosis of a possible neuroma merely on what plaintiff told him. Neither of these doctors had had experience with the operation of an air hammer. Their testimony is only to the effect that plaintiff had sustained a certain percentage of the loss of use of his hand. As to plaintiff’s testimony, it does not impress us. He was contradicted in many particulars. He claims that he could not operate the hammer without the use of the finger, yet he admits that he never tried to so do after the amputation. He did not seek to return to work. Suffice it to say that we do not lay any stress on his testimony. He is refuted by all the lay witnesses who testified relating to the use of the hammer.

We are not unmindful of the well settled jurisprudence of the Supreme Court “that where an employee loses the use of a member of his body or where he loses the member itself by amputation and such loss produces incapacity to do work, such injury is controlled by paragraphs (a, b, or c) of subsection 1, Section 8 of the Workmen’s Compensation Act and not by paragraph (d) of that section, which applies regardless of capacity to work and irrespective of the duration of the disability.” See Washington v. Independent Ice & Cold Storage Co., 211 La. 690, 30 So.2d 758, 759, and the many cases therein cited. Under the facts in this case, plaintiff could, if he would, return to his former occupation and work, that is, an air hammer operator, notwithstanding the loss of use of his hand to a certain degree. The preponderance of the evidence shows that the palm of the hand is used against the handle of the hammer, and the right thumb to operate the gun, and the left hand to steady the hammer and chisel, the grip being more in the left hand, and the left hand receiving the most of the vibrations.

The test of disability under the compensation law is whether an employee can discharge the duties of the occupation he held at time of injury. See Butzman v. Delta Shipbuilding Co., Inc., La.App., 21 So.2d 80; Ranatza v. Higgins Industries, Inc., La.App., 18 So.2d 202; McKenzie v. Standard Motor Car Co., La.App., 15 So.2d 115; Stieffel v. Valentine Sugars Co., 189 La. 1091, 179 So. 6; Jacobson v. Maryland Cas. Co., La.App., 30 So.2d 887. Applying that test to the present case, plaintiff cannot recover.

Finding no error committed by the trial judge, the judgment appealed from stands affirmed.


author: HARDY, Judge.

text:
    COMMONWEALTH LOAN CO., Inc. v. LOHMAN.
    No. 7108.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    R. D. Fuller, of Shreveport, for appellant.
    Hendrick & Gatti, of Shreveport, for appellee.
   HARDY, Judge.

This is an appeal from judgment of the City Court of Shreveport, Caddo Parish, Louisiana, in favor of plaintiff in the sum of $144.77, as the unpaid principal balance on a promissory note executed by defendant in favor of plaintiff in the original sum of $300.

The minutes of the City Court show that the only filing made on behalf of defendant was a plea of payment. The minutes also evidence the fact that the case was regularly set and was called for trial almost two months subsequent to the filing of said plea, that neither defendant nor his counsel made appearance at the time of trial, and that judgment was rendered' in favor of plaintiff.

From this judgment defendant appeals on the ground that there was no proof adduced on trial in support of plaintiff’s claim, citing the case of Pfeifer v. Bacharach, 10 La.App. 30, 121 So. 196, to the effect that an appellate court cannot presume judgment was rendered on necessary proof where the record showed evidence offered to be insufficient.

We do not find that the principle enunciated in the above case is applicable to the matter at hand.

The record shows that plaintiff offered and introduced in evidence a promissory note in the sum of $300 payable to plaintiff and signed by defendant. Plaintiff further offered and filed in evidence an itemized and sworn statement of account showing credit for payments made and evidencing an unpaid principal balance in the sum of $144.77. Under the showing made by these documents it is obvious that the record in the case does reflect adequate proof of plaintiff’s claim.

The principle that a plea of payment presupposes the existence of the debt is too well established to necessitate any reference to a long line of decisions to this effect.

It appears that defendant, after pleading payment, made no attempt to support this plea by any character of evidence on the trial of the merits of this case, and allowed judgment to be rendered by default. This being the case we fail to perceive any ground upon which defendant, on appeal, can urge any matter of substance which would justify an appellate court in upsetting a judgment which is supported by the proof comprehended in the record.

It is contended on behalf of defendant that this case should be remanded to the lower Court for the reason, quoting from brief of defendant’s counsel: “ * * * that the note showed no endorsement or payments, nor was there any proof offered (‘legal proof’) of the alleged payments on the installments and interest on the entire note and that the affidavit purely in figures without any supporting evidence cannot be granted as proper proof to impute the amount sued for nor to impute the alleged payments with reference to definite amount if any due and to dates.”

We must confess that the asserted reason advanced on' behalf of defendant is somewhat confusing since the same appears to us to be an objection on the part of defendant to the credit allowances that were made by plaintiff.

In any event we find no ground which would justify the reversal of the judgment or the remanding of this case, and, accordingly, the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent.


author: TALIAFERRO, Judge.

text:
    LACOUR et al. v. TEXAS & P. RY. CO.
    No. 7092.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Watson & Williams, of Natchitoches, for appellants.
    Frank H. Peterman, of Alexandria, for appellee.
   TALIAFERRO, Judge.

Louis Lacour, the husband of Mary La-cour, and the father of the other plaintiffs herein, was struck and killed by a southbound passenger (troop) train of the defendant company on its track at Derry station, in the Village of Derry, Louisiana, at about 5:30 o’clock A.M., June 15, 1944. The widow and heirs of the deceased instituted this suit to recover a large amount in damages on the theory that due to the negligence and carelessness of the crew in charge of the train the deceased met death.

Petitioners further alleged that when killed the deceased was attempting to flag said train so that it would stop at said station to enable him and his wife to board the same as passengers for Alexandria, Louisiana; that Derry is a flag station, which means that passenger trains stop there only when flagged; that the deceased began flagging the train while he was standing on the track between the rails when the train was a distance of nearly one-half mile away; that the train did not slow down or stop and that the foot of the deceased, in some manner unknown to plaintiffs, got caught between the cross ties or under the rail and he was unable to extricate himself before the train ran over him. Thé accident, it is charged, was attributable to the gross negligence, carelessness and reckless disregard for human life on the part of the agents and employees of defendant company; that it was negligence not to have slowed the train in deference to it being flagged after seeing the deceased on the track; that the engineer and fireman on the train were maintaining a proper and careful lookout ahead at the time of or immediately prior to the accident, or else they would have seen the deceased in time to have avoided striking him.

Defendant denies that the tragic accident .resulting in the death of Louis Lacour was to any extent due to the negligence or carelessness of its train crew, but, on the contrary, was solely attributable to the gross negligence of the deceased, himself.

It is further alleged -by defendant that the train in question was not a regular passenger train, but a special one that was hauling several coaches of troops and was not taking on passengers at all, and for these reasons the operatives in charge of it did not try to bring it to a stop after observing the signal given by the deceased. Defendant admits that the engineer and brakeman (then at their posts of duty) did see the deceased on the track near the station, waving a handkerchief as a signal for the train to stop, when it was quite a distance away, but they assumed, as they had a right to do, that he would remove himself from a position of danger to one of safety as soon as he became aware that his signal was not being heeded; that the whistle of the train was blowing and the bell was ringing when it was many hundred feet away, and as it drew closer to deceased, he, having made no move to get off the track, the engineer sounded the whistle again and applied the brakes but the train was too close to be stopped in time to avert the impending accident.

Defendant further pleads that plaintiff’s own negligence in the respects above mentioned, were the sole and proximate cause of the accident; and, in the alternative, his negligence is pleaded in bar of recovery by the plaintiffs.

Plaintiffs’ demand was rejected and they appealed.

The facts of the case are, to great extent, not disputed. The above narrative of the pleadings clearly reflects them, so far as covered thereby, except it is not proved that the foot of the deceased was in some manner caught between the ties or under the rail. This' being true, the implication arising from the allegation of the petition on this score is set at naught; that is, the deceased was not killed because he was unable to get off the track.

The testimony indicates, but does not definitely prove, that the deceased did step from between the rails, but did not get far enough from the west rail for the train to miss him.

The train in question consisted of thirteen passenger cars laden with troops and two cabooses, in addition to the locomotive. It was immediately prior to the accident moving at a rate not over fifty-five miles per hour. Going at this speed it requires from 1,500 to 1,800 feet to stop it.

It is shown that when approaching the place where the track is crossed by a gravel highway, over 1,800 feet from the depot, the customary blasts of the whistle were given. At this time the engineer noticed the' deceased walking from the depot toward the track but, on account of a slight curve in the track just north of the depot, he was not able to tell if 'the deceased got on the track, but as the train drew closer he did observe that he appeared to move his position slightly westward. The engineer also observed that deceased was sig-nalling the train to stop. He testified, and he is well corroborated, that there was nothing in the movements or actions of the deceased to indicate that he was abnormal in any manner or was not in full possession of his mental and physical faculties. In view of these facts, he assumed that the deceased would act as a normal person, arid, for his own protection, would timely get out of the path of the train. However, when a distance of some three hundred feet from him and seeing that he had not attained a place of safety, the engineer gave the alarm whistle, consisting of several short blasts, and applied the brakes as in emergency, but to no avail.

It required over three seconds for the train to cover said three hundred feet and had the deceased acted promptly he could have jumped to safety. Why he did not do this and why he continued to remain on the track, or so close to it as to be struck, is an unsolved mystery. He had on several prior occasions, near this same hour, flagged passenger trains at this station. It was daylight and it is obvious he was able to observe that the train as it approached him, was not slowing down in preparation for a stop. In addition, even to make the customary stop the locomotive and some of the cars would necessarily have passed the spot whereon deceased was standing. The train, after striking deceased, passed the depot and stopped some 1,-200 feet below it.

The undisputed facts exonerate the engineer and other operatives of the train from the charge of negligence made against them. They were not required to reduce the speed of the train to any extent simply because they observed Lacour on or near the track many hundred feet away, waving a handkerchief.

It is not of uncommon occurrence that people, especially boys, go upon railway tracks, wave their hats or any other thing in their hands, and remain thereon until the approaching train is near them, then jump to safety..

If trains that are expected to be operated on strict schedule should be required to stop or slow down in every instance when a person is observed by its operatives on the track, many hundred feet ahead, the schedule would be rendered largely worthless and the lives of passengers imperiled. This is vividly illustrated in the present case. The regular southbound passenger train was due at Derry only a few minutes after this accident occurred. Had the troop train consumed much time there the chances for a rear end collision would not have been impossible.

The law is very clear that the engineer of a train has the right to assume that, a person standing on or near the track ahead of him, apparently in full possession of his mental faculties and physical power, and who is aware of the train’s approach, will get out of its way in time to avoid being hurt. See: Johnson v. Texas & Pacific Railway Company, 16 La.App. 464, 133 So. 517, 135 So. 114; and cases cited therein; Patterson v. Yazoo & M. V. Railway Company, et al., La.App., 187 So. 305; Young v. Thompson, La.App., 189 So. 487.

The jurisprudence of this state teems with cases holding as do these.

As a corollary to the above stated legal principle, it has been many times held that the law does not require that a train be slowed down or stopped simply because the engineer sees a person on or standing near the track, unless such person in some manner acts in such way as to impress the engineer and/or other operatives of the train that he is not normal or is not in full possession of his mental faculties, etc. See same cases cited above.

Energetic counsel for the plaintiffs have provided us with lengthy brief, in which they elaborately discuss the facts of the case and in which an array of authorities relied upon to sustain their contentions are cited. We have given due consideration to this brief. The discovered peril and last clear chance doctrines are mainly relied upon. They do not attempt to excuse the palpable negligence of the deceased. The mentioned doctrines are not applicable to the facts of this case. It is doubtful if the train could have been stopped before striking Lacour after his presence on or near the track was first observed by the engineer. To apply said doctrines and condemn defendant in damages it would be necessary to hold that the deceased was in a position of peril when first seen by the engineer and that the train could and should have been stopped within the intervening distance. The record does' not warrant us to so hold.

In legal contemplation, as regards a train’s operatives, a person on the track many hundred feet away, is not in such a position of peril as to warrant invocation of said doctrine. To do so, it is obvious, would lead to absurd consequence. It would mean that to avoid the danger of running down persons so situated, the speed of the train would have to be so reduced that an accident could be avoided regardless of the movements of such person or persons. As a general rule such a proposition is applicable to motor vehicles but not to trains.

We are of the opinion that the lower court correctly decided this case and for the reasons herein given, the judgment appealed from is affirmed with costs.

KENNON, J„ absent.


text:
    PRICE v. SHREVEPORT RYS. CO.
    No. 7110.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Love & Bailey, of Shreveport, for appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff, appealed from judgment dismissing his suit to recover damages resulting from a collision between his automobile and a trolley car of defendant, in broad daylight, in the intersection of Kings Highway and Southern Avenue, in the City of Shreveport, Louisiana.

Plaintiff was going northerly on Southern Avenue while the trolley was proceeding southerly thereon. Traffic over the area of the intersection is controlled by a semaphore light suspended above the center thereof. When the collision occurred the light facing each vehicle showed green, which, of course, warranted each driver in going forward and each did so. However, plaintiff, after going forward a few feet, undertook a left turn in front of the trolley in furtherance of his desire to gain Kings Highway and continue his trip westerly. His car was struck by the front of the trolley about its left front side and shoved several feet southwesterly. It was demolished and plaintiff was injured. The motorman brought the trolley to a stop within the least possible time and distance.

For a cause of action, plaintiff alleged that the accident happened because of the motorman’s negligence in several respects, to-wit:

1. Operating the trolley carelessly and recklessly and driving it at a speed in excess of fifty miles per hour in violation of the law of the City of Shreveport;

2. Failing to maintain proper lookout;

3. Failing to avail himself of the last clear chance to avoid the accident;

4. Inattention to his duty in that he was engaged in talking to passengers about him immediately prior to and at the time of the collision;

5. Lack of control of the trolley;

6. Failing to recognize plaintiff’s superior right of way.

Defendant denies all the essential allegations of the petition except those relating to the occurrence of the accident and at the time and place stated. These are admitted. It is charged by defendant that plaintiff’s own negligence and imprudence in trying to effect a left turn in front of a moving trolley, when conditions in the intersection were highly unfavorable for such action, in violation of the laws of the city and of the state, was the proximate if not sole cause of the collision. The lower court sustained this position and gave written reasons to support its judgment.

The decided preponderance of the testimony disproves the charges of inattention to duty of the motorman, his failure to maintain a proper lookout, and excessive speed of the trolley as causes or contributing causes of the collision ; in fact, none of the charges of negligence made against him is sustained by adequate proof. The trial judge so held and we fully agree with him.

In passing on the factual issues raised by defendant’s answer, the lower court said:

“Plaintiff’s own version of the accident precludes his recovery as his own negligence is outstanding: (1) He did not proceed into the intersection to the center to make the turn; had he done so the trolley would have already passed. (2) He did not wait until the left lane was clear of traffic and the law reads as follows:
“ ‘Motorist in making a left hand turn, must be absolutely sure that the road is clear ahead of him and that he can make his turn without delaying traffic in the opposite direction.’ Deffez v. Stephens, La.App., 30 So.2d 154.
“And in another case the Court said:
“ ‘Left turn of automobile in street should not be undertaken until operator has carefully looked in all directions and satisfied himself that he may turn without jeopardizing others’ safety.’ Grasser v. Cunningham, La.App., 200 So. 658.
“As stated, plaintiff gives the cause of the accident which is: he thought he was making a left turn when defendant was 150 to 200 feet away, he misjudged the distance and attempted to make the left turn. It was his duty to see that he had plenty of time and distance within which to make the turn, and if he makes a mistake as to the time or distance and is unable to complete the turn, the fault is his and he cannot recover.”

Had the trolley been traveling at an excessive and unlawful rate of speed when it entered the intersection a different situation would possibly be presented, but this is not the case. It is fairly well shown that the trolley had pre-empted the intersection, about the time plaintiff undertook a left turn, and ran into the car at about the southern edge of the intersection.

Questions of fact only are involved in this case. After a careful reading of the record we have no hesitancy in concluding that the lower court correctly resolved the same and applied the pertinent law thereto. And for this reason, and other reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON, J., absent


text:
    BROOKS v. PROTECTIVE INDEMNITY CO. et al.
    No. 7113.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.

      Browne, Browne & Bodenheimer, of Shreveport, for appellant.
    Mabry & Carstarphen, of Shreveport, for Mayfield.
    John B. Files, of Shreveport, for Protective Indemnity Co.
   TALIAFERRO, Judge.

Plaintiff appealed from judgment dismissing her suit against W. A. Mabry, her landlord, and his insurer, Protective Indemnity Company, wherein she sought to recover a large amount of damages allegedly sustained by her on account of the defective condition of one of the porch posts of the leased premises at 1500 Cedar Street, in the City of Shreveport, Louisiana. Specifically, she alleged that on or about January 31, 1947, she went onto the front porch of the leased premises “and in the course of walking upon said porch, leaned against the left front post, supporting the roof”, and “it came loose from the floor and caused her, in an attempt to stop herself from falling headlong upon the ground, some four feet distant, to stumble backward and fall flat upon the porch”; and she further alleges: “That the post which broke or came loose when Petitioner leaned against it was weak, defective and rotten on the underside, which fact was not known to Petitioner before said accident, but which fact was known, or should have been known, by the lessor, or owner, and its insurer * * *

Defendants deny that the porch was rotten or defective in any way, and deny that plaintiff fell, as alleged by he"h They aver that if she did fall, which is denied, she suffered no injuries or damage as a result thereof. In the alternative, they plead that if the post was rotten or defective and plaintiff fell on account of its weakened condition, she was contributorily negligent in that she had knowledge of said condition and failed to exercise due and proper care while on the porch and that her negligence in this respect precludes recovery by her.

The alleged accident occurred, if it did occur, about midnight, January 24, 1947. Plaintiff and her witnesses all testified it occurred about midnight of January 31, 1947. She testified that immediately prior to the accident she was inside the house. At that time Pearl Brooks, her husband, Andrew Patterson and his wife, Hattie, and her son, Eddie King, were also in the house. Andrew, who was to some extent intoxicated, walked out of the house onto the porch. He was very soon followed by Eddie King, his stepson. Within a brief time thereafter he was heard by those within the house and by some of the neighbors holloing loudly as though in distress. Pearl Brooks, attracted by the holloing, was the next one to come out of the house and onto the porch. He discovered Patterson on the ground to the left of the steps and Eddie King standing over him. He says King was trying to assist Patterson to his feet. There is sharp contradiction as to why Patterson was on the ground. Pearl Brooks, although he did not see him between the time he and King went out of the house until he saw him on the ground, testified that Patterson fell as he started down the steps. Another negro man, Johnnie Jones, who lives close to plaintiff’s house, being attracted by a commotion on the front porch, testified that he saw Eddie King strike Patterson several blows with his fist while on the porch, knock him therefrom, and in the melee the post was disengaged from its fastening to the porch floor. We lean strongly to the conclusion that Johnnie Jones’ version of the matter is correct. His testimony is not contradicted except by that of Pearl Brooks, and, as said before, he did not see what happened on the porch until Patterson was holloing upon the ground. Jones’ testimony, in material respects, is corroborated by that of other witnesses.

It is of some significance that neither King nor Patterson were introduced as witnesses by plaintiff. Patterson’s wife, Hattie, testified on defendant’s behalf, and while on the porch at the time plaintiff claims to have fallen down, did not see the fall and did not, while there, hear any one say that plaintiff did fall.

Plaintiff and Hattie Patterson were immediately behind Pearl Brooks when he went from the front room of the house onto the porch. Plaintiff says that as she looked down “at the man (on the ground) I cut over to the post with my right hand and it came out from under the porch with me, causing me to fall backward”, etc. Pearl Brooks testified that plaintiff looked down at the man on the ground, “with her right arm around the post on the left side, and * * * finally, I guess, by her weight the bottom end of the post came out and she was suffered to try to keep from faffing out on her face, and she backed up and her right foot ‘kareeled’ and she fell backward”. It so happened that at this time Brooks was on the ground trying to assist Patterson to arise. It is worthy of comment that he, while thus engaged, should have at the same time observed all the details of the accident. His version thereof does not fully coincide with that of plaintiff.

Plaintiff introduced three witnesses who in their testimony tracked each other much more closely than generally happens where this number of witnesses sincerely try to tell the truth about an incident all observed at the same time. Of these witnesses, two were men and one was a woman. They testified that they -had come from a “joint” not far away that was conducted by a negro by the name of Gilbert, where they had danced. The men were escorting the woman to her home. They testified that as they passed plaintiff's home their attention was attracted toward it by the hollo-ing of a man they observed on the ground in front of the porch not far away. They stopped not over ten feet from the edge of the porch and they testified that while there they saw plaintiff put her arm around the post and as she leaned forward, watching the man on the ground, the post gave way and she fell backward. We doubt very much that these people were there at all at the time they say. They were not seen by either plaintiff or other persons then present and neither of them made their presence known to any of the several persons who were thereabout.

If we are correct in our interpretation of the testimony of the three referred to witnesses, coming from the “joint” they would have passed the woman’s home before getting to that of plaintiff. It is also shown definitely that the “joint” was not open the night the accident is supposed to have happened, because on that date it was undergoing repairs.

In addition to the unreasonableness of plaintiff’s version of the alleged accident there are several other proven facts and some circumstances that, to our mind, effect her credibility materially and weigh heavily against her.

It is shown that on two prior occasions plaintiff claimed to have been injured by defects in this house. She accepted small amounts in satisfaction of her asserted injuries. Two witnesses in this case testified that plaintiff suggested to them that if they would testify in support of her suit they would be rewarded in a substantial manner by her.

It is also worthy of note that plaintiff alleged, and she, her husband and her three witnesses, above referred to, testified positively that the accident occurred the night of January 31st, whereas it is otherwise positively proven that it happened the night of January 24th.

It is passing strange that plaintiff and her husband could have, if acting honestly, forgotten the true date of the accident when giving to their attorney the facts thereof upon which to base the suit. They must have done this immediately after the alleged occurrence as this suit was filed on February 12th, only nineteen days thereafter. And, it is also worthy of note that the three witnesses, above mentioned, should by mere coincidence have fallen in to the same error.

Another circumstance, not to be entirely overlooked, lies in the fact that plaintiff weighs between 275 and 300 pounds. She and her witnesses say that she leaned against the post. Had she done this, being so heavy, the chances are largely that she would have fallen 'forward to the ground instead of backward upon the floor.

In addition to all of the foregoing reasons that militate against plaintiff’s suit, if the post was knocked loose in the fight between Patterson and King, surely the landlord should not be held responsible for its giving way when plaintiff leaned against it. She and her husband testified that the post, prior to the accident, had the appearance of being sound.

This case bristles with much evidence and many circumstances that would justify us in concluding that it had been wholly fabricated. Anyway, no court of justice would be willing to condemn defendants in damages on the character of testimony offered by plaintiffs.

Prior to trial of the case W. A. Mabry died testate, leaving a widow in community, Mrs.Cornelia B. Mabry, and Mrs. Josephine Mayfield, as his sole heir and legal representative, who were instituted as executrixes under his last will and testament. They were substituted as parties defendant herein.

For the reasons herein assigned, the judgment appealed from is affirmed at plaintiff’s cost.

KENNON, J., absent.


text:
    ALANZA v. TEXAS & P. RY. CO.
    No. 7100.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    F. A. Cashio and N. M. Ferris, both of Shreveport, for appellant.
    Cook, Clark & Egan, of Shreveport, for appellee.
   HARDY, Judge.

This'is a suit for the recovery of damages as the result of a truck-train collision. The case was tried before a jury which returned a verdict in favor of defendant.. Judgment was signed in accordance with the verdict and plaintiff has appealed.

Despite the voluminous record there is comparatively little dispute with reference to the physical facts and circumstances connected with the accident.

At about 7:45 A. M. on July 13, 1946, plaintiff and one Pap Harper, a negro, both being employees of Mike Maniscalco, a truck farmer, were proceeding along Highway 20 toward Shreveport in a 1942 Chevrolet Pick-up Truck owned by Maniscalco and driven by Harper. The truck was loaded with green vegetables and the particular mission of plaintiff and Harper at the time was to convey the vegetables to the markets in the City of Shreveport.

At a point in Caddo Parish about 12 or 13 miles south of Shreveport, Highway 20 makes a right angled crossing of the main line track of the Texas & Pacific Railway. South of this crossing, in the direction from which the truck was proceeding, the highway parallels the railway track for a distance of several miles. About 125 feet from the crossing the highway makes a banked inclined right curve up to the crossing which is made at a right angle, and upon the other side thereof the curve of the highway is reversed on a downward banked incline for a distance of about 125 feet before its course again parallels the railway right-of-way for another considerable distance in a northerly direction toward Shreveport. In other words, the crossing is made by means of the familiar S curve. The day of the accident was bright and dear, visibility was good, and the view of the railway track in either direction for a distance of miles each way was totally unobstructed. The crossing described is located at what is known as Robson, Louisiana, a little village settlement consisting of a store and two or three houses nearby, but the immediate vicinity is sparsely settled.

The testimony of witnesses establishes the fact that the Chevrolet truck driven by Harper was proceeding at a moderate rate of speed in a northerly direction toward Shreveport, that it entered the curve, and made the immediate approach to the crossing at a speed of some 5 to 10 miles per hour. As the front wheels of the truck passed over the near or west rail of the track the motor failed and the car stalled. Up to this moment neither plaintiff nor the driver had perceived the approach of defendant’s regularly scheduled passenger train which was also proceeding north to Shreveport some 10 or 15 minutes behind schedule. But, as the car stalled, Harper, the driver, saw the train a very short distance away and called to plaintiff to jump. Plaintiff, for some unexplained reason, did not or could not open the door on the right side of the truck cab and jump out, but the driver opened the door on his side of the cab by reaching through the window, turning the handle from the outside and kicking open the door, whereupon he jumped and miraculously escaped unscathed. The locomotive of defendant’s train struck the truck, and carried it for a considerable distance north along the right-of-way where it fell or was thrown to the left of the ditch. Plaintiff was extricated from the wrecked truck, suffering from severe injuries which form the basis for his claim for damages.

The testimony shows that at the time the locomotive struck the truck the emergency brakes had been applied, and the train, consisting of the locomotive and 11 coaches, was brought to a complete stop some quarter of a mile past the crossing.

1326 feet south of the crossing in question a whistle board is located immediately to the' right of the railway track as a warning to the engineers of locomotives of the location of a crossing in order to permit them to sound the warning signals of whistle and bell. The testimony overwhelmingly preponderates to the effect that the whistle of the locomotive was properly sounded in the customary manner, which is indicated as being two long and two short blasts of the whistle. But it appears that the last short blast of a whisle is ordinarily held until the crossing has been reached, which gives the effect of two long, a short and a long blast.

There is a conflict of testimony on the point as to the ringing of the bell of the locomotive on this particular occasion, hut, for reasons which became obvious later in this opinion, this point is unimportant

Because of the death of the engineer who was in charge of the locomotive at the time of the accident, the fireman is the only member of the train crew, who was an eye witness to the accident, whose testimony was available on trial of this case. According to his testimony he saw the truck in which plaintiff was riding, about the time it entered into the curve approaching the crossing; that he thought the truck [Stopped before attempting to proceed across the rails, an impression which'is easily reconciled with the actual fact because of the extremely slow rate of speed of the vehicle at the time; that he saw the truck ■stall on the track when the locomotive was some two or three hundred feet away and immediately warned the engineer to make a “big hold,” which is railway parlance for an emergency application of the brakes. But, under these circumstances, it is, of course, obvious that the train which was, according to the preponderance of the testimony, proceeding at a speed between SO and 55 miles per hour, could not possibly have been brought to a stop in time to avoid the collision. In fact, the •uncontroverted testimony of experienced ■railway employees is to the effect that the actual stopping of the train, which took ■place approximately a quarter of a mile beyond the crossing, evidenced a good stop -in consideration of the speed and the make -up of the train.

One fact stands out with startling clarity, that neither plaintiff nor Harper, the driver of the truck, made the slightest effort to look in the direction from which the ■train was approaching at any time before ■the truck started on the track. It is true ■■that plaintiff testified that the driver, Harper, looked before he made the attempted crossing of the track, but in the further course of his testimony it developed that this was a mere impression based .on the fact that Harper at some undesig-jiated time had told plaintiff he had looked. .It is unnecessary to further discuss any testimony on this point because of the inescapable conclusion that if either of the parties had looked they would have seen.

Plaintiff’s action is predicated upon eight specifications of negligence on the part of the defendant and its employees, which are itemized in his petition as follows:

(a) Failure to maintain flagman or proper mechanical devices at said intersection for warning the approach of trains, ,

(b) Failure to properly maintain crossing in good condition in accordance with statutory requirements,

(c) Operating said train at an excessive rate of speed, about 65 to 70 miles per hour,

(d) Failure to ring bell or blow whistle as required by law,

(e) Failure to keep said train under proper control,

(f) Failure to keep proper lookout,

(g) Failure to slow down or stop in time to avoid said accident,

(h) Operating said train in a careless and reckless manner in disregard of the rights of motorists crossing said intersection.

A number of the above charges of negligence are conclusively disposed of by the evidence. Plaintiff has completely failed to support the specifications comprehended under items (d), (e), (f), (g), and (h) above. On the contrary the great preponderance of the evidence justifies us in concluding that the warning signals were properly given; that the train was under as much control as is required by law under the facts and circumstances of the case; that a proper lookout was kept; that there was no failure on the part of the operators of the locomotive to slow down or stop in time to avoid the accident since this would have been impossible, and that the train was not operated in a careless or reckless manner in disregard of the rights of motorists crossing the intersection.

Nor is there anything in the record which sustains plaintiff’s charge that at the time of the accident the train was being operated at an excessive rate of speed of 65 to 70, miles per hour. While the testimony on this point is of necessity vague and uncertain, we think the most reliable evidence is found in the testimony of the fireman of the locomotive to the effect that the speed of the train at the time was about 55 miles per hour. But, however this may be, it is evident that the speed of the train, whether it was 50 or 100 miles per hour, was neither a proximate nor a contributing cause of the accident.

No very serious effort was made on the part of counsel for plaintiff to press the claim of negligence on the ground of the failure to maintain flagmen or mechanical warning devices at the intersection in question, as set forth in item (a) above. There is no law, nor, indeed, is there any practical reason which would require the maintenance of flagmen or mechanical warning devices by a railroad at open country crossings in sparsely settled rural areas.

This leaves for consideration the only remaining specification of negligence which bears upon the alleged failure of the defendant to maintain its crossing over the highway in good condition. It is to this point that counsel for plaintiff, in brief and in oral argument, directed the greater part of their attention.

The theory of the arguments advanced in behalf of plaintiff with reference to this particular charge of negligence is predicated upon the claim that defendant had permitted its crossing at the point of the accident to fall into such a state of disrepair as to constitute a danger, a menace and a hazard to vehicular traffic, and, by implication, that the stalling of the truck in which plaintiff was riding at the time was caused by the particular condition of the crossing.

We think it suffices to say that plaintiff utterly failed to prove this premise. The testimony clearly preponderates in favor of defendant to the effect that the crossing was in good condition and except for a slight roughness caused by the wearing down of the platform between the rails there was no indication of any impediment to vehicular traffic. The record is plain and uncontradicted on the point that no vehicle at any time either before or since the accident was known to have stalled on this particular crossing or to have failed to negotiate the same without inconvenience or discomfort, to say nothing of danger.

In deference to the zealous efforts of counsel for plaintiff in this case, we have gone to some unnecessary pains in considering in more or less detail the several charges of negligence on the part of defendant that have been presented by plaintiff. We say unnecessary because of our conclusion that the proximate and only cause of this accident was the gross, inexcusable and inexplicable negligence and carelessness of both the plaintiff and the driver of the truck. We do not recall any case in which this fact has been so plainly and uncontrovertibly established.

Plaintiff and the truck driver lived in the neighborhood of the village of Gayles, Louisiana, some two or three miles south of the situs of the accident and from which point they had entered upon the mission which was taking them to Shreveport by way of Highway 20. Both of these parties lived in reasonably close proximity to the railway; both of them knew that the through passenger train was due at or about the time they were traveling parallel to the tracks and attempting to negotiate the crossing. Either of them could have seen the approaching train for a distance of miles to the south if they had looked, and neither of them made any attempt up to the time the truck actually stalled on the track to determine whether or not a train was approaching from the south. The most casual glance in a southerly direction by either plaintiff or the driver of the truck would have disclosed a view of the approaching train.

The attempt is made on behalf of plaintiff to argue that there was no duty to look on the part of plaintiff. This position is clearly untenable.

It is well established that there is an independent duty on the part of a passenger or guest in a vehicle about to traverse a railroad crossing to use ordinary and reasonable care and precaution in the interest of his own safety. Martin v. Yazoo & M. R. Co., La.App., 181 So. 571; Lockhart v. Missouri Pac. R. Co., La.App., 153 So. 577.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent.


text:
    PINKNEY et al. v. CAHN INV. CO. et al.
    No. 7125.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    W. B. Massey, of Shreveport, for appellants.
    Jackson & Mayer and Wise, Randolph, Rendall & Freyer, all of Shreveport, for appellees.
   HARDY, Judge.

Plaintiff, for himself and as natural tutor of his two minor children, seeks damages for the death of his wife, the mother of the children, alleged to have resulted from a fall sustained by reason of the defective condition of certain premises rented from the defendant, Cahn Investment Company, of which the defendant, General Accident Fire & Life Assurance Corporation, Limited, is the liability insurer.

The case was tried on the merits and there was judgment in favor of defendant rejecting plaintiff’s demands, from -which judgment plaintiff prosecutes this appeal.

Plaintiff, with his wife and children, lived on the premises at 1028½ Alien Avenue in the City of Shreveport, Caddo Parish, Louisiana, which they rented from the defendant, Cahn Investment Company, the owner thereof. A small toilet located on the rented premises and connected with the back porch of the house occupied by plaintiff’s family was used by the occupants of the Pinkney house and those of the house next door. The floor of this toilet was constructed of 2x6 board planks laid lengthwise at a height of about 28 inches from the ground. Sometime during the month of June, 1946, the exact date being unknown, plaintiff’s wife, Rosie Lee Pinkney, who weighed about 260 pounds and at the time was some four or five months pregnant, went into the toilet, and, while walking across the floor thereof, sustained a fall, by reason of the breaking of one of the planks, causing her right leg to pass through the hole thus created, which fall allegedly caused serious injuries to the right leg, thigh, hip, side, arm and abdomen.

Petitioner alleges that, by reason of the injuries sustained, his wife suffered severe shock, pain and suffering, accompanied by threats of miscarriage, and that she was given medical attention by Dr. Lacey, a negro doctor, and Dr. E. W. Harris of Shreveport; that a child was born prematurely at the Charity Hospital in Shreveport on August 4, 1946, which child died some hours after birth. Petitioner further alleges that as a result of the accident described and the injuries resulting therefrom, his wife was hospitalized from time to time in the Charity Hospital and that after re-entering the hospital the last time on September 28, 1946,' she died early on the morning of September 30, 1946, all as the result of the accident described and the injuries sustained therefrom.

Petitioner further alleges the latent defect of the flooring of the toilet and the negligence of the defendant landlord.

The record discloses the fact that, prior to the death of Rosie Lee Pinkney, a compromise settlement was effected by and between the defendant landlord, Cahn Investment Company, and Rosie Lee Pinkney and her husband, Lemo Calvin Pinkney, the plaintiff herein. It is conceded that this settlement adjusted all rights and claims that existed prior to the death of Rosie Lee Pinkney, and, accordingly, the damages claimed in this suit are confined to such as resulted by reason of the death of the said Rosie Lee Pinkney.

There is no dispute with reference to the fact that decedent suffered a fall and sustained some injuries as a result. The only issue tendered to this Court, and the one upon which a determination of the appeal must rest, is whether plaintiff has proved, to the extent and degree required by law, that the death of decedent was caused by the accident described.

Without question the burden is upon this plaintiff to establish by a fair preponderance of the evidence that the accidental injury was the cause of death.

In discharging this burden of proof it is axiomatic that plaintiff is required to make out his case with reasonable certainty.

The records of tire Shreveport Charity Hospital were introduced in evidence upon trial of the case. These records show that decedent was first admitted to the hospital on August 4, 1946, in the seventh month of pregnancy, and on that date a child was born prematurely. The infant died on the same date some hours after delivery, and on August 8, 1946, the patient was discharged in good condition.

The decedent -was next admitted to the hospital on August 18, 1946, and discharged on August 28, 1946; was again admitted on September 6, 1946 and discharged September 17, 1946; was admitted for the last time on September 28, 1946, and died at 1:55 a. m. on September 30, 1946. An autopsy was performed by Dr. W. B. Allen and a microscopic examination and pathological diagnosis was made by Dr. W. R. Matthews.

There is no question as to the fact that the decedent’s death was due to acute ul-cerative or bacterial endocarditis.

The only medical witness presented on behalf of plaintiff was the negro doctor, Lacey, who testified that he had treated the decedent the day before she was first taken to the hospital, and that, though he" made no diagnosis, he thought from the patient’s symptoms that she was suffering from malaria. This witness did not recall having seen the decedent at any later date. In answer to a hypothetical question propounded by counsel for plaintiff the witness testified that in his opinion the infection which produced the endocarditis could have been caused by injuries sustained by a fall of the nature suffered by the decedent. But it is worthy to note that the witness voluntarily stated that his opinion would be governed by the findings of the pathologist.

No attempt was made by plaintiff to present Dr. Harris, who he alleges had treated the decedent, as a witness on trial of the case.

The expert testimony on behalf of defendants was given by Dr. E. E. Dillworth, an obstetrician, Dr. J. H. Eddy, Jr., a physician and surgeon, and Dr. W. R. Matthews, a pathologist. These witnesses had made a study of the entire case history of the decedent from the Charity Hospital records, and all three testified in effect that they found no relationship between the fall sustained by the decedent in June and either the miscarriage, which followed some six or eight weeks later, or her subsequent death, which occurred some three or four months after the accident.

While the testimony of each of these medical witnesses is entitled to great weight, we find the testimony of Dr. Matthews particularly convincing. This witness is one of the most distinguished pathologists of the country, recognized as a outstanding authority in this highly specialized branch of medical science. A thorough study of Dr. Matthews’ very detailed testimony as to his positive conclusions and the basis of facts upon which these conclusions were predicated, to our minds, is conclusive. The witness testified positively that in his opinion neither the premature birth nor the death of the decedent were connected in any way with the fall which she had sustained in June, 1946.

The greater part of the arguments of counsel for plaintiff, as presented orally and in brief before this Court, was devoted to the attempt to break down the conclusions reached by defendant’s medical witnesses. We are not only of the opinion that distinguished counsel failed in this attempt but we point out that the record does not serve to establish those essential requirements in the way of proof which would justify a finding that the death of decedent resulted directly or indirectly from the injuries sustained by the fall which is made the basis of this action.

It was argued that the acute endocarditis could have been caused by a bacterial infection which entered the decedent’s body by way of the right thigh or leg which was the location of the direct injuries sustained in the fall. But we call attention to the fact that plaintiff completely failed to show injuries of such a character. It is true ■one witness testified that the decedent told her that she “ scraped ” her right leg, but there was no proof to substantiate this bit of hearsay testimony, nor is there anything in the record which indicates that the decedent sustained any laceration or breaking of the skin of such a nature as would justify the conclusion of an entering infection.

We think the testimony of defendant’s medical witnesses positively and unequivocally eliminates from consideration every reasonable hypothesis which might support plaintiff’s contention in this respect.

In the final analysis there is no question but that plaintiff has failed to prove with anything approaching a reasonable certainty or by preponderating evidence the essential requirement of a/ chain of causation leading from the accident to the death. It must be remembered that the burden is upon plaintiff to prove the relationship between the accident and death and not upon the defendant to disprove the same. However, in this case we feel doubly assured of the correctness of the judgment inasmuch as we find that plaintiff has failed to assume and satisfactorily discharge the burden of proof resting upon him, and, further, that defendant has affirmatively proved the lack of any causal relationship between the accident and the death.

As has been many times declared by the several courts of this State, probabilities, surmises, speculations and conjectures cannot be accepted as sufficient grounds to justify recovery on the part of a plaintiff who is charged with the burden of proof.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent.


text:
    MOORE v. NATCHITOCHES COCA COLA BOTTLING CO.
    No. 7078.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.

      Polk & Culpepper, of Alexandria, for appellant.
    Julian E. Bailes, of Natchitoches, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sues to recover damages allegedly sustained by him as the result of consuming part of the contaminated contents of a bottle of Coca Cola manufactured and sold by the Natchitoches Coca Cola Bottling Company, a commercial co-partnership. The company and its component members are impleaded as defendants. We quote the allegations of his petition that describe the pain, suffering, etc., he claims to have experienced from drinking the Coca Cola, viz.: -■

“ That approximately thirty to forty-five minutes after drinking this Coca Cola, as aforesaid, your petitioner became deathly sick and nauseated, suffered cramps in his stomach and abdominal region; that he became very weak and experienced sinking feelings and emotions; that he became extremely nervous.
That his stomach and back began to hurt him about an hour after the drinking of this contaminated drink, and that he suffered great and intense pain in his stomach and back, all as a direct result of the drinking of this beverage.
“ That the day following, your petitioner began to suffer great and intense pain in his lower back region and in the region of his kidneys.
That since on or about the day following the drinking of this beverage, your petitioner has been and is still at this time under. the care and treatment of a physician for the physical ailments and disorders brought about by reason of and as a direct result of the drinking of this contaminated beverage, all as aforesaid.
“ That by reason of and as a direct result of the physical ailments brought about by the drinking of the said contaminated beverage, your petitioner has been unable to sleep regular hours; that he has lost a great amount of sleep because of his physical sufferings; that your petitioner has lost about ten pounds in weight, all by reason of physical ailments occasioned by the partaking of the beverage, aforesaid.”

Defendants, prior to answering, prayed for oyer of the Coca Cola bottle from which plaintiff drank and of the unconsumed part of the liquid therein. Answering the prayer for oyer, plaintiff says:

“ * * * That the plaintiff, just as he so alleged, took the remaining contents of the said drink to the Natchitoches Parish Health Office for an analysis, and that since that time the plaintiff iias never seen the contents of the said bottle, nor does he know the whereabouts of said bottle or the contents thereof. That the said plaintiff does not expect to use said contents on the trial of this case.”

Defendants articulately deny the allegations of the petition and further aver that the company has been engaged in the bottling, sale and distribution of soft drinks, especially Coca Cola, in the City of Natchi-toches, Louisiana, for fifteen years; that it employs in such business modern and up-to-date machinery and equipment which, are kept in proper state of repair; that the ingredients used in said drinks are of first grade quality, and in every respect it observes and follows approved formulas in the preparation of said drinks in the endeavor to protect them from contamination and to insure them against exposure to unsanitary conditions, etc.; that if the bottle involved herein contained any substance besides the liquid itself, when plaintiff drank therefrom, such substance found its way into the bottle after it left defendants’ possession.

The lower court awarded plaintiff judgment for One Hundred Fifty ($150) • Dollars. Defendants appealed. Plaintiff did not appeal nor has he answered the appeal perfected by defendants. In brief, however, his counsel complains of the inadequacy of the award and argues for substantial increase thereof.

An appellee who believes himself aggrieved by a judgment, in order to place himself in a position to ask for amendment thereof in his favor, it is imperative, must expressly answer the appeal and point out ■wherein the judgment should be amended or changed. To ask for such relief in brief is unavailing.

Plaintiff lives near the Town of Winn-field, Louisiana, some thirty-five miles distant from the City of Natchitoches. He owned a bus that he used during the summer of 1946 to transfer pupils from Winn-field to the high school building in Natchi-toches to attend the summer school then and there being conducted. Very soon after delivering his cargo of pupils to the high school building on the morning of June 13, 1946, he decided to drink a Coca Cola and to procure a cold bottle he deposited five cents in a mechanically operated vending box, owned by defendant, located in the school building, and the bottle came forth. He removed the cap and began to drink. After he had consumed the greater part of the contents of the bottle and while still drinking therefrom, Mr. Tom Elkins, coach and athletic director of the high school, who was standing near by, called to plaintiff’s attention the presence of some sort of foreign matter in the bottle, but, according to plaintiff’s testimony, a part of the foreign matter had already been swallowed by him. He testified that the matter “was just like a lump, I swallowed and some of the stuff stuck in my mouth, crumbs like,” etc.

Mr. Elkins testified that after he called plaintiff’s attention to the foreign matter in the bottle, he made a cursory examination of it and found that some of the matter was in the bottom of the bottle and some was stuck to its sides.' These facts, coupled with plaintiff’s own testimony as to the nature of what he swallowed, and his allegations, support a finding that the foreign matter was dirt. Dirt is not deleterious.

Mr. Elkins suggested to plaintiff that he take the bottle and contents to the defendant’s plant and show same to someone there. He first went to the principal’s office in the building and deposited with him five cents for the bottle, and then proceeded to defendant’s plant, some two blocks away. He exhibited the bottle to two persons there, employees or officers, and then returned to his bus at the school building, bringing the bottle with him. He next drove to the office of the Parish Board of Health, approximately one-fourth mile distant. On arriving there he ascended a flight of stairs and found the health officer absent. He was told by a secretary that this officer would soon return. Plaintiff waited a few minutes and the officer not having returned, he went away, leaving the bottle and contents setting on a desk or table. He says he left the bottle there so that the contents could be analyzed, but he did not return for a.report. However, he alleged that an analysis disclosed that the foreign substance in the bottle was dirt, and there is no testimony in the record to disprove this sworn allegation.

After leaving the office of the Board of Health, plaintiff returned to his bus, and drove it back to the high school building. At the hour of 12:30 o’clock P.M., with the pupils aboard, he began the return trip to Winnfield. He testified that during this period, some two hours, he gagged several times and tried to vomit, but failed. His testimony in this connection is interesting. We here quote a part of it, to-wit:

“ A. Well, after I drank this Coca Cola I just got the ‘all overs’ and just jittered all up and down, and made me gag and I tried to vomit and I gagged.
Q. Would you, please, try to tell the court what you mean by the ‘all overs’ ? A. Well, sir, it just made me gag and get sick all over, and just made me weak and sick at my stomach.
“ Q. How long did you suffer this condition? A. Well, if I ain’t mistaken, ever since that time, ‘til now, but for the first three or four weeks I suffered the most, but I was sick longer.”
⅜ ⅜» ⅜ ⅜ ⅜
“Q. Describe to the court how you rested- — normally or abnormally. A. Well, I tried first to lay flat on my stomach but I couldn’t sleep and then I turned over on my side but I couldn’t, my insides would just turn over.”

Plaintiff also testified that the day following the drinking of the Coca Cola, he made the usual bus trip from Winnfield to Natchitoches and back, and also on that day he consulted Dr. Mosley in Winnfield, who prescribed an effervescent medicine. He says that he returned to Dr. Mosley several times thereafter but does not say what the doctor thought of his case nor what he prescribed for him, if anything. Pie also testified that on the second Saturday following the drinking of said Coca Cola he drove in his bus to Ville Platte, Louisiana, a distance of about one hundred miles and there consulted a Dr. Attaway as to his condition; that this doctor prescribed for him and made a charge of $52.50, which he paid, but he produced no receipt or written evidence to corroborate his testimony on this score. He says that Dr. Attaway advised him to return occasionally for further examination and check-up, but that he did not follow the doctor’s advice. He did not undertake to tell what this doctor thought of his case.

It is not explained by plaintiff why he journeyed so far from home to see a physician and at a time, he says, his case was in the hands of his local doctor; nor did he undertake to enlighten the court as to why he passed up many prominent physicians in the City of Alexandria, on the route to Ville Platte, and the splendid hospitals there, including one operated on charity basis by the state, in the quest for relief from his suffering and discomfort.

Plaintiff testified further that he lost time from operating his bus and ⅛-d to engage others to serve for him, but he does not produce a single witness to support this statement.

It seems strange that plaintiff did not see fit to produce either of the named physicians as a witness in his behalf, nor make any effort to procure their testimony. His claim for damages is based upon the alleged ill effects, mentally and physically, the drinking of the contaminated Coca Cola had upon him. The doctors who examined and prescribed for him should know better than anyone else whether he really was sick and suffered pain and discomfort from taking into his system a small quantity of Mother Earth. He asks the court to mulct defendant in damages simply on his bare testimony.

The failure on plaintiff’s part to provide the court with the testimony of the above named doctors creates a strong presumption that such testimony, if produced, would not have been favorable to his case. This doctrine is well settled in the following cases: Gunter v. Alexandria Coca Cola Bottling Company, Ltd., La.App., 197 So. 159; Comforto et ux v. Cloverland Dairy Products Company, Inc., La.App., 194 So. 43.

Every litigant is expected to bring to his support, in presenting his case, the best and strongest evidence obtainable. It is but natural that out of a desire to succeed he should do this. He should not ask a court to accept his unsupported testimony in his desire to recover damages of another, when, according to his own statement, such testimony could be supported by expert witnesses on a subject about which the litigant is not expected to and does not, in fact, know very much.

To add further support to the suspicion that plaintiff is not entirely in good faith in instituting and prosecuting this suit for damages, he did not produce a single member of his family, a friend or an acquaintance to substantiate in whole or part the many allegations of his petition relating to the pain, sickness and discomfort that have allegedly afflicted him since drinking the contaminated Coca Cola, except the negro janitor whose duty it was to keep vending machine supplied with full bottles. This man testified:

Q. When he returned (from the Health Office), did he appear normal-what I mean is, did he appear normal physically? A. No, sir, he was all nervous to death.
“ Q. What was his color ? A. It was dark, and light, he just looked sick; he sure was uneasy abotit that Coke.”

He further testified that he saw plaintiff “trying to gag.”

The testimony of this witness is significant in that in his opinion, plaintiff was nervous and uneasy from the anticipation of ill effects from drinking the bad Coca Cola. Plaintiff’s own testimony does not, in many material respects, support his allegations.

It has many times been said, in cases of this character, that the testimony adduced by plaintiff to prove his case should be weighed and scrutinized with the utmost care and caution to the end that injustice not be done. As a rule the defendant is without knowledge of the occurrence upon which the suit is based until, in many instances weeks and/or months have elapsed. A plaintiff, almost invariably, has a decided advantage over defendant from the very nature of the case; hence, plaintiff is strictly required to produce the best evidence of which the case is susceptible and which is possible of production. In this case, plaintiff utterly failed' to meet this legal requirement.

Plaintiff was, to succeed herein, required to prove by a preponderance of the evidence that the bottle of Coca Cola from which he drank was manufactured by defendant company, that it contained some foreign matter when capped, a part or all of which he drank, and, in addition, that as a result of drinking this foreign matter he was made ill and suffered pain and discomfort therefrom. We are of the opinion that plaintiff has failed to meet the last mentioned requirement.

It is unthinkable that a small quantity of dirt, drunk in a harmless liquid, could produce the frightful effects upon the body of a strong, vigorous man thirty-nine years-old, as plaintiff would have us believe. This condition is largely negatived by the fact that he continued to operate his bus until the close of the summer school and when regular school began in September he resumed operating the bus fi-ve days of each week over a route into Winnfield nearly twenty miles in length.

This case involves only a question of fact. We are forced to disagree with the conclusions thereon reached by the learned trial judge, and, for this reason, have given to the case most mature consideration and have at length set out the reasons forming the basis of our conclusions.

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and there is now judgment for defendants, rejecting the demands of the plaintiff at his cost.

KENNON, J., absent.