author: KENNON, Judge.

text:
    JOHNSON v. BROWN PAPER MILL CO., Inc.
    No. 7081.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.

      Dhu Thompson, of Monroe, for appellant.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellee.
   KENNON, Judge.

Motion to Remand.

Plaintiff filed on the day of hearing in this Court a motion to remand the case to the District Court for the purpose of adducing testimony as to plaintiff’s present condition and continued disability since the date of the trial in the District Court. This motion sets forth that since the case was tried in February, 1947, there has been no improvement in plaintiff’s condition; that he has been continuously and totally disabled to do any work because of his inability to use his left leg except by dragging it and using a support. He further alleged that his disability has been continuous and constant from the time he was injured, April 5, 1946.

Attached to this motion to remand are the affidavits of plaintiff himself, a doctor and five lay witnesses.

The allegations and affidavits allege no new development in plaintiff’s condition, but simply re-state the case as outlined in his petition and offer what amounts to additional statements that plaintiff was able to work prior to the alleged injury and has been disabled since, all of which was gone into at length on the original trial.

Appellate courts have the right and duty to remand cases for additional testimony. However, the occasions on which this is done are normally ones where there is newly discovered evidence or there have been unusual and unexpected developments. Where a case has been thoroughly tried and lengthy evidence adduced from numerous witnesses as was done in the case before us, it would not be proper for the case to be remanded for the taking of testimony which would be, essentially, cumulative to that adduced by plaintiff on the trial of the case.

The motion to remand is overruled.

On the Merits.

This case is before us on appeal from a judgment rejecting plaintiff’s demand for compensation for permanent and total disability not to exceed four hundred weeks. The claim is based on an alleged back injury to plaintiff as he was assisting in carrying a heavy object down a narrow steel stairway in defendant’s Ouachita Parish paper mill.

The answer admitted the employment of plaintiff; denied the occurrence of the accident as alleged; admitted payment of compensation over an eight week period and set forth that further payments were discontinued for the reason that the reports of attending physicians certified a termination of the temporary disability suffered by plaintiff.

The learned District Judge gave written reasons for judgment which we quote below:

“Claiming total and permanent injuries to his back and legs received while working at the Brown Paper Mill Company, Inc. on April 5, 1946, plaintiff prays for maximum benefits provided by the Workmen’s Compensation Act.
“Plaintiff, a colored man 30 years of age, at the time of the alleged injury was engaged with a fellow worker, Joe Johnson, in carrying down a narrow stairway a heavy piece of machinery, a bearing for installation on one of the bark drums at its paper mill in West Monroe. For better handling a 1%" pipe about S' long was passed through the bearing which was lifted when the workmen raised upward on both ends of the pipe. The pipe was too long to go between the guard rails on the stairs and this required the two men to carry the bearing at an angle to the steps while taking it down the stairs. It was while so proceeding with Joe Johnson holding the front end and Jessie Johnson the rear end that Jessie says the accident occurred. He attributes the injury to a stumble due to the bearing slipping or shifting on the pipe thus causing undue weight upon his end and the resulting disability to his back.
“He declares he reported the back injury to his fellow employees shortly after reaching the downstairs and later he informed Mr. Jackson, his foreman, that he had hurt his back. He then continued to work the remainder of his shift. The following day he came to work but after a half hour he complained again to Mr. Jackson and was sent to the first aid room and was given heat treatments. He went back to work for a short while and complained again, this time he was sent to see Dr. J. Q. Graves under whose care he remained until May 28. He was treated for a back sprain and on May 7 was sent to the St. Francis Sanitarium as he complained his back had not improved. At his own request he was released from the hospital to go back to work on May 28.
“Some twenty-one lay and medical witnesses were called by both sides. There were marked differences of opinion among the expert witnesses. Two of plaintiff’s doctors based their opinion of a fractured vertabra upon certain x-ray pictures. Others, including Dr. Armstrong who was called to the stand on behalf of plaintiff, could find no evidence of any disability to the bony structure. While it would be possible to receive a fractured vertabra from an awkward step, it is certainly a rare occurrence and it seems unlikely plaintiff received any bone injury. In the absence of trauma to the bony structure any strain suffered by the muscles of a young able bodied man of 30 would have disappeared after the lapse of time prior to trial. Furthermore, plaintiff stated to Drs. Moseley and Hamilton he felt no pain until 10 and 6 minutes respectively after he stumbled on the stairway. Medical jurisprudence tells us that such an injury to the muscles would have caused immediate pain and would not have permitted the continued work by plaintiff before he placed himself under the care of a doctor.
“For the foregoing reasons the demands of the plaintiff are rejected.”

The record discloses that plaintiff at the time of the injury was thirty years of age; still living with his mother; that he had been engaged in manual labor for various employers in the vicinity of Monroe all of his adult life and that the present suit is his first claim for compensation. .

Plaintiff’s statement of the injury was that he and three others were carrying a heavy boxing from a room upstairs. To facilitate carrying the boxing, a pipe was run through it; that a fellow workman, Joe Johnson, was in front and he was in the rear; that he stumbled and that made the front man stumble and caused the boxing to slide along the pipe; that when “I stumbled he raised up on his end and that throwed the boxing to slide down on me. That’s where the strain come on my back.” .

Plaintiff fellow employees testified that plaintiff, with three other employees, was carrying a heavy metal boxing weighing two or three hundred pounds; that four workmen started to bring it downstairs; that when they reached the top of the steel stairway it was found that the stairway was only wide enough to accommodate one workman at each end of the load and plaintiff and another designated by the foreman started to carry the piece down the narrow steps; that in the process, there was some scuffling on the staircase which on cross-examination plaintiff described as kind of “stumbling like, zigzagging like on the stairway,” and that when the operation was over, plaintiff complained that he had hurt his back when he was bringing the piece down.

Mr. George Stinnett, millwright for the defendant company, 'testified that on the day in question, it was necessary to change a bearing at the mill and that “they gave me four men to go get the bearing.” He testified that the men placed a 1J4" pipe 5’ long through the bearing for the purpose of carrying it down the steps; that on account of the narrowness of the stairway, they turned the load “cater-cornered;” that only one workman could hold to the pipe at each end. He estimated the weight of the bearing at 150 or 200 pounds, but added, “it might have weighed more.” He did not notice any particular difficulty in getting the bearing down the steps, and Jessie Johnson made no complaint to him of any injury; however, he testified that he went directly to the motor house for the purpose of taking the old bearing out and putting the new one in, and that “couldn’t but one or two or three men get in at the time and I don’t know whether Jessie Johnson is one of them or not.”

It thus appears that plaintiff’s relationship with Stinnett on that day was brief, plaintiff being one of the four men which they “gave” to millwright Stinnett for the purpose of bringing down the heavy bearing, and as far as Stinnett remembers, plaintiff reported back to whatever assignment he had at the time he was called away as one of the four man carrying party.

The record shows that plaintiff did complain to a Mr. Jackson, who appears to have had supervision over him at the mill. The defendant did not introduce Mr. Jackson at the trial and it is logical to presume that he would have confirmed plaintiff’s testimony that he made a complaint of injury following the carrying of the heavy load down the narrow stairway.

Alexander Dofford, one of the workmen detailed to Mr. Stinnett for use in carrying the machinery, testified that the bearing weighed two to three hundred pounds. He corroborated plaintiff’s testimony that only two workmen could be used to carry the heavy object down the narrow stairway. He testified that when it reached the foot of the stair, it was placed on a truck and rolled on out. He testified that plaintiff and the other man “scuffled” as they went down the stairway with the load, and that plaintiff told him he had hurt his back coming down the stairway.

He confirmed plaintiff’s testimony that Mr. Jackson was the foreman in charge. This witness was not a close associate of plaintiff and had only seen him once or twice since the accident happened, but testified that he was “crippled every since he got hurt * * * walking with a stick both times I have seen him.” A close reading of his testimony indicates that he listened carefully to the questions asked him and gave truthful and enlightening testimony. He testified that plaintiff at the foot of the stair said he had hurt his back when he was bringing the load down and that he said this as they were loading the heavy piece on the truck at the foot of the stair.

Henry Wilson was another one of the three colored workmen who was assigned with plaintiff to the job of bringing the heavy piece of machinery down the stairway. He testified that plaintiff and Joe Johnson carried it down the steps and that he saw them begin to stumble and “near about fall, but they didn’t fall and kept on down to the floor.” He estimated the weight to be between “two and three hundred. It may weigh more.” He also testified that when the two had succeeded in getting the machinery down to the floor, he and Alex Dofford went on down to the floor “to help them load it on the buggy carrier” and that at that time, plaintiff said “he had hurt his back taking it down.”

He testified that the four workmen brought the piece of machinery to the stairway, which was too narrow for the four to take it down, and that at the foot of the stairs the four of them were again used to place the machinery on the buggy carrier.

The testimony showed that Joe Gilliam, the fourth workman on the carrying party, was “in the Army somewhere” and he was not called.

Plaintiff’s petition alleges that the injury occurred “on or about May 5, 1946.” In the answer defendant admits the payment of compensation from April 5 through May 30, 1946. Various treatment, examinations and x-ray pictures were made after April 5 and before May 5 and we conclude that the stairway incident relied upon by plaintiff as to the cause of his injury occurred on April 5, 1946.

We have deemed it proper to make a complete and detailed study of the testimony regarding the circumstances surrounding the alleged injury because, after a careful study of all the medical testimony, we find that the doctors are not at all in agreement on the extent of plaintiff’s disability.

When plaintiff was injured, he was carried for treatment to Dr. J. Q. Graves, who later placed him in the St. Francis Sanitaruim. He was kept in the sanitarium for three weeks, after which time he was discharged as ready and able to return to work. X-rays did not reveal any injuries to the bony structure or unusual condition other than mild hypertrophic arthritis in the lower back. Dr. Graves testified however that plaintiff could h*ve had a strain without any demonstrable external evidence, but that if the strain had been of the character alleged by plaintiff, he would have had a spasticity of the muscles, a condition which he did not find.

Dr. W. L. Bendel, a successful practitioner with more than thirty years experience, examined plaintiff in October. His examination included x-rays. He found no fracture or dislocation in plaintiff’s back and felt that there was no cause for permanent or total disability. He discovered a' chronic condition which he described as hypertrophic arthritis, which he considered not unusual for a man accustomed to hard work. His conclusion was that “from the length of time he (plaintiff) has been out, from the time I saw him, there is not reason why he should not be back to work.” He believed plaintiff to be a malingerer.

Dr. W. L. Smith, a recognized expert in x-ray diagnosis and treatment, testified concerning x-rays made in May and July. He found no evidence of any fractures, dislocations or traumatic changes. He did observe the hypertrophic arthritis to' a degree not unusual in a laboring adult. He further noted that there was no evidence of increase in this condition during the time intervening between the first and subsequent x-rays. He qualified his opinion that he found no evidence of a condition that might be caused or aggravated by injury by stating that he found no such condition “insofar as one is warranted in forming their opinion from x-rays.”

Dr. A. Scott Hamilton examined plaintiff on July 1, 1946, when he found plaintiff complaining of his back and leg (or legs). Dr. Hamilton found a definite muscular spasm extending from the middle of the dorsal region (which includes the lower spine or sacrum) and found that this spasm extended roughly ten inches on each side of the spine. This doctor put the plaintiff through various tests and testified that in his opinion the plaintiff was insincere and inaccurate his statement as to what movements were painful. He examined the x-rays and found no bony condition other than mild hypertrophic arthritis of the lower spine which he considered indicated the existence of no total disability.

Dr. I. J. Wolffe examined plaintiff in November, 1946. He found a marked spasticity from the area of the twelfth dorsal vertebra on down to the sacrum. He found a definite inclination toward the left side. Plaintiff’s temperature at the time was 99 degrees. He testified that he did not believe plaintiff could do common heavy labor without pain. His opinion was that the spasticity which he observed indicated a muscular injury to plaintiff’s back. He did not believe that the condition he found was such that it might have been feigned.

Dr. Wolffe summed up his testimony with the statement: “There was a spasti-city o,f the muscles from the lower dorsal down to the sacrum; upon movement of the leg and the sacro-iliac joint there was likewise some spasticity. A definite observation of the patient in disrobing and then again putting on his clothes, and watching him when he left the office. He took the elevator down and walked out of the building without having seen me following, observing him, how carefjilly he was to get off the sidewalk down to the street and his movements plus my findings. I do not think that the individual was feigning.”

Dr. E. D. Armstrong, whose experience included four and one-half years of industrial practice at the Louisiana Ordnance Plant, testified that he examined plaintiff in November; that he had a muscle strain in the back and arthritis in his spine. He noted a tenderness over the sacrospine and a spasticity of the muscles on the right side. He testified that the arthritis might have been aggravated by the accident.

Dr. C. H. Moseley examined the plaintiff and made x-rays. He found what he described as muscular rigidity and a listing to one side. He testified that plaintiff was awkward in bending over and handling himself and “got about like a man with his back hurting.” He testified that the x-ray pictures showed a fracture through the fifth lumbar that was both definite and unmistakable and that the vertebra had been mashed down on the right side. He also found evidence of the arthritis but testified that it was limited mostly to the area of the injury, that is between the fourth and fifth lumbar vertebra. He believed that the injury could aggravate the arthritic condition.

Dr. J. E. Walsworth, a practitioner for more than thirty years, made a complete physical examination and clinical study of plaintiff. He found that the plaintiff had a peculiar walk, indicating a dragging sensation of the left leg. He found what he described as an “exaggeration of the spinal muscles” and that plaintiff was hypersensitive over the lower left spine. He found no degenerative processes but believed there was a deep seated inflammatory reaction in the lower lumbar region. He found a definite spasticity of the muscles of the back on the left side and believed that plaintiff’s manner of handling his left leg was a self imposed protective attitude that he has developed that gives him the greatest comfort. No person could simulate that unless they had experienced the pain that he has. It is a personal attitudinal protective attitude that he has.” In his opinion, the injury might have involved protrusion of the interver-tebral disc, the pulpy structure that cushions the joint between one vertebra and another. He noted that in many, cases x-ray will not show a back injury and that an injury readily ascertainable from, a picture taken at just the right angle might be entirely imperceptible on x-rays taken from other angles. He concluded from the history and physical findings and their collation to each other that ‘there was bound to be an injury there, whether the x-ray showed it or not.”

He concluded that plaintiff was completely and totally incapacitated for doing work as a common laborer.

The plaintiff was personally known to Dr. Walsworth, whose experience included fifteen years as Chief of the Orthopedic Service and four years as Chief of the General Surgical Staff at the St. Francis Sanitarium in Monroe, as well as service as Chief of General Surgical Staff at the Riverside Sanitarium at Monroe and at the Monroe Charity Hospital, with graduate work at the University of Vienna and several eastern American medical schools. He felt certain that there was a definite fracture of the fifth lumbar vertebra. He thought that surgery might be a benefit to plaintiff and that same would be “worth a trial by a competent man.” When questioned he stated that he realized that there is often a difference in reactions and attitudes of a party whose case is currently at issue in Court, but, nevertheless, many of these had legitimate complaints.

The present situation is not unusual in a compensation case, particularly when the region involved is that of the lower spine where x-ray pictures are often inconclusive in their disclosures. This Court has held, McCray v. Yarbrough et al., La.App., 20 So.2d 447, that complete faith cannot be accorded to claims of an injured party as to the existence of pain simply upon his own testimony, and that when the case is dependent largely upon a condition of plaintiff not definitely ascertainable by examination, clinical or x-ray, the Court must give careful consideration to the surrounding circumstances, and the plaintiff can be more readily believed when those circumstances are corroborative of his alleged condition. In the case before us, the surrounding circumstances are consistent with plaintiff’s claim that he suffered a serious back injury when the heavy piece of replacement machinery was carried down the stairway. All witnesses agree that the load weighed several hundred pounds. Its heavy weight is further indicated by the fact that the millwright, Mr. Stinnett, testified that he was given four men to assist him in bringing the heavy piece from its storage upstairs to the repair point. All witnesses agree that on account of the narrowness of the steel stairway, only one man could be used at each end of the carrying pipe, and due to the lack of space, the descent was made cater-cornered, with one of the heavily loaded carriers necessarily on a lower step than the other as they maneuvered their respective ends of the 1%," pipe which was being used as a carrying stick. Once the difficult descent was accomplished, all four of the colored men assigned to the millwright for the carrying task were used to lift the weight from the floor to the trucking buggy. This is corroborative of plaintiffs testimony of the unusual weight involved. Of the four workmen three, including plaintiff, testified at the trial. The fourth was in the Army and not available. Both of plaintiff’s companions testified that plaintiff, as they were all engaged in loading the weight on the carrying buggy, stated that his back had been hurt in coming down the stairway. Plaintiff testified that he reported his hurting of his back to his foreman, a Mr. Jackson. It is noteworthy that the defendant did not call Mr. Jackson to the witness stand or make any explanation of his absence, and it is logical to conclude that he would have corroborated plaintiff on this point.

We are further strengthened in our conclusion that the plaintiff suffered a disabling injury by the testimony that plaintiff was a healthy thirty year old workman and had never before made a compensation claim. A former employer, Mr. J. S. Drew, one of the owners of a wholesale grocery company in Monroe, testified that plaintiff had worked for his company during 1944-1945 and that his work during that time was regular and satisfactory.

Ollie Brannon, another witness, testified that she had known Jessie “from a kid up;” that she had seen him once or twice a week since he got hurt; that he never was crippled before but after he was hurt “he come to walk crippled, walking with a stick one-sided.”

Eula Johnson, plaintiff’s mother, testified that Jessie Johnson lived with her; that prior to the injury complained of, he had worked regularly and that since the injury he has been unable to work; that he was “up and down” and she often had to rub his back and that while he was in good health prior to the accident, he has suffered continuously since. She testified that her son “don’t sleep none at night.” Her description of his condition is contained in the following answers:

“Well, he don’t sleep none at night, it looks like the longer it has been running on the worse he gets, he had me up last night all through the night. He will first lay on his side and he has to lay drawed, he can’t lay on his back at all.”
“He can’t get about at all without that stick, he can’t go anywhere without that stick.”
“No, sir; he keep the stick right by his bed, just reaches his hand out and gets it.”
She testified that she makes a living for them by washing and ironing and seemed a bit proud of the fact that she had “six washings.”

Smithie D. Miller testified that he had known plaintiff, Jessie Johnson, “ever since he was a boy;” that he went to see him when he was in bed after the injury and that after he commenced traveling on the street, he would walk one-sided; that Jessie traded at his store for about four months and that he had visited him at his house about once a week since the accident. His testimony was that Jessie was a normal individual in every way previous to the injury and that he had consistently appeared to be hurt or injured as he walked since the accident. He testified that plaintiff always worked and paid his bills before the accident, but that he was in arrears for the four months that he had traded with him since the accident. He testified that plaintiff’s reputation for truth and veracity was good.

Other lay witnesses testified as to his disability, and, although plaintiff resided in a populous area and his daily movements we re exposed to his neighbors and friends, and others who might be his neighbors without being his friends, no witness was introduced by defendant who had seen him do any act or perform any physical action in his home or on or off his premises inconsistent with his claimed disability.

We realize that there is a possibility that plaintiff in this case is a malingerer as believed by some of the doctors, in whose integrity the Court has utmost confidence. On the other hand, other doctors, including Dr. J. E. Walsworth, an outstanding physician, believed that plaintiff is disabled and needed treatment.

An examination of the testimony as a whole convinces us that plaintiff has ■met the burden which is upon the plaintiff in all cases, including compensation cases, of proving his claim by a preponderance of the evidence.

For the reasons assigned, the judgment appealed from is reversed and judgment is now rendered in favor of plaintiff, Jessie Johnson, and against defendant, The Brown Paper Mill Company, Inc., for compensation at the rate of Twenty and no/100 ($20) Dollars per week during the period of his disability, not to exceed four hundred weeks, payable in weekly installments beginning April S, 1946, with 5% per an-num interest on each installment from date until paid. The judgment is subject to credit for the first eight weeks already paid. Plaintiff’s demands for medical expenses are dismissed as of non-suit. Costs to be borne by defendant.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    INGRAM v. STATE FARM MUT. AUTOMOBILE INS. CO. et al.
    No. 7072.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    Irion & Switzer, of Shreveport, for appellants.
    Julius T. Long, of Shreveport, for ap-pellee.
   HARDY, Judge.

Plaintiff, widow of Philip Graham Ingram, seeks in this suit to recover damages arising from the death of her said husband alleged to have resulted from injuries received by being struck by an automobile owned by the Woodley Petroleum Company and driven by its President, John Woodley, who, together with the liability insurer, are made defendants herein.

This is the second time that this case has been before this Court on appeal. On the first occasion the judgment of the First Judicial District Court of Caddo Parish in favor of plaintiff was ordered reversed, annulled and set aside, and judgment was rendered in favor of defendants rejecting plaintiff’s demands. The basis upon which our judgment was predicated was the failure of plaintiffs to establish the fact that the injuries sustained by reason of the alleged negligence of the defendant, Wood-ley, resulted in death. Ingram v. State Farm Mutual Automobile Insurance Co. et al., La.App., 31 So.2d 423.

On application for rehearing- and after reconsideration of the matter, we set aside our original judgment and remanded the case to the District Court for the admission of evidence bearing upon the cause of death and for judgment thereon by said Court, subject to the right of appeal.

In accordance with our decree the case was taken up for trial by the District Court for the restricted purpose of receiving evidence with regard to the establishment of the cause of death. After trial the District Court again rendered judgment in favor of plaintiff and against the defendants, in solido, in the full sum of $8,348.00, together with interest and costs. From this judgment defendants have appealed.

Before proceeding to a discussion of the merits of this case, it is noted that at the opening of the trial before the District Court, after this cause was remanded by our judgment on rehearing, counsel objected to the admission of any evidence on the ground that our judgment was contrary to law in that it remanded the case without the granting of a rehearing and without giving an opportunity to the defendant to be heard thereon.

This objection has not been urged before this Court by counsel for defendants either in oral argument or brief, and, therefore, must be conclusively presumed to have been abandoned. We mention the point thus briefly only in order to preclude the possibility of complications which might arise in the future by the attempt to re-urge this objection.

As a matter of convenience, and further for the purpose of clarifying some ambiguities and misunderstandings which appear to have arisen from the statement of facts which were set forth in the opinion of this Court on the occasion of the first appeal, we feel it is desirable to restate the pertinent facts.

About noon on May 1, 1946, plaintiff’s deceased husband, a pedestrian, was engaged in negotiating the crossing of Fairfield Avenue, one of the principal residential thoroughfares of the City of Shreveport. The crossing was being made from east to west along the extended south sidewalk line of Wilkinson Street, the intersection of the two streets being a recognized, established and authorized pedestrian crossing. The defendant, Woodley, was driving his Buiclc sedan south on Fairfield Avenue, at a speed of about or slightly less than thirty miles per hour, on his right-hand side of said street, the left side of his car being slightly west of the center line thereof. After the front portion of the Woodley car had passed the south line of Wilkinson Street the decedent was struck by the car in such manner that his head came into violent contact with the left portion of the windshield, which was shattered by the impact. The body of the decedent appeared to momentarily hang upon the cowl of the car before slipping to the pavement. When the car was brought to a stop with the rear end some ten or twelve feet beyond the south line of the Wilkinson Street sidewalk extension at the intersection, the body of the decedent, extending diagonally in a southeasterly direction, was lying some few feet behind the left rear wheel. Woodley stepped out of his car and turned Ingram’s unconscious body from -a position on the left side until it was resting on its back. He then called to a negro yard man, who was standing on the sidewalk at the northwest corner of the intersection, to watch the body while he ran across the street to telephone for an ambulance.

In our first opinion in this case we erroneously stated that the attention of the negro yard man, to whom reference is above made, was attracted by the sound of the impact of the body against the car. As a matter of fact, his attention was drawn, so he testified, by the sound of the application of brakes, and as he turned he observed Ingram’s body sliding off of the car in such fashion that the negro testified he thought the man had fallen out of the car.

While Woodley was crossing the street, intent upon reaching a phone for the purpose of calling an ambulance, a Ford automobile, driven by one FI. B. Aycock, proceeding east on Wilkinson Street, came to the legally required stop at the intersection of said street with Fairfield Avenue. The driver inquired of the negro as to what had happened and was informed that there had been an accident, after which he turned to the right, that is, south into Fairfield Avenue, and inadvertently ran over the body of the unfortunate victim. Apprised of this fact by the shout of the negro, Aycock immediately parked his car in front of the Woodley car and near the right-hand curb of Fairfield Avenue, and returned to the scene of the accident.

In the meantime still another party had arrived on the scene, and, after determining that the ambulance had not been called, he proceeded to telephone for this aid. The ambulance arrived some fifteen minutes later and removed Ingram to the Schumpert Sanitarium, where he died about 5:00 o'clock the same afternoon without recovering consciousness.

Our first judgment reversing the judgment of the District Court in favor of plaintiff, which was predicated on failure to satisfactorily establish the cause of Ingram’s death, was later reconsidered and set aside, and, as above stated, the cause was remanded to the District Court for the taking of evidence on this point on the basis of the authority set forth in the per cu-riam on rehearing.

The testimony taken on the second trial in the District Court bearing upon the cause of death definitely establishes the fact that Ingram suffered a fracture of the base of the skull, numerous abrasions and lacerations, and, probably, a puncture of the lung. Dr. Charles S. Boone, Deputy Coroner of Caddo Parish, testified that he assigned the cause of death as “traumatism by crushing.” His further testimony was that the crushing was due to an automobile and that the injuries determined were “fracture of the skull and multiple contusions and abrasions,” which injuries were the cause of death.

Under the circumstances we feel that no useful purpose would be served by a detailed discussion attempting to distinguish and identify the injuries which resulted, first, from the violent blow received from the Woodley car, and, second, from the injuries inflicted by the Aycock car. Consideration of the testimony bearing on the cause of death convinces us that the fracture of the skull unquestionably resulted from the violent impact with the Woodley car. Since this in itself was sufficient to cause death, any injuries received from the Aycock car were superfluous.

Accordingly, we have encountered not the slightest difficulty in reaching the conclusion that the resolution of this case must rest upon a determination of the question of negligence on the part of Woodley.

The only eye witness to the accident was Woodley himself, and, after close examination and thorough study of his testimony, we are definitely of the opinion that it is sufficient in itself to conclusively establish his negligence as being the sole and proximate cause of the accident which resulted in Ingram’s death.

The sworn statement of Mr. Woodley at the coroner’s hearing, which was held for the purpose of inquiring into the facts and circumstances of the accident, contains the following declarations:

“I was going south on Fairfield driving a 1938 Buick sedan, my own car, and there was a car looked like about four car lengths ahead of me. I was driving between 25 and 30,1 was under 30 I know; I was keeping pace with the other car pretty well and I just happened to see a glimpse of the man standing — after this car ahead of me passed by him — and it seems as though I saw the man take a step and then he turned his eyes toward me and stopped and sorter straightened up. I started to throw my brake on and just as soon as he straightened up I put my foot back on the accelerator and went on and the next thing I knew I saw 'him coming to my windshield. I know I put my brake on before he ever hit my windshield. I just saw something there and I just threw my foot on my brake right quick and there he was right there on my hood.”

(Emphasis by the Court.)

“Q. Which way was Mr. Ingram facing when you first saw him ? A. West, he was on the East side of Fairfield and this car passed him. I did not see him until after the car passed him, this was the car ahead of my car.
“I was pretty well back of that car. He was driving on the right hand side and I was too but probably closer to the middle and the street kinder makes a little turn there.”
“ * * * I glanced in my mirror to see if there was anybody back of me — ”

It is to be observed by reason of the above quoted statements of Mr. Woodley that it was mere circumstance that he “happened” to see Ingram. It is also worthy of note that he testified that Ingram took a step and then “turned his eyes toward me.”

It is obvious that Woodley did not continue to observe the pedestrian who, unquestionably, was in a place of danger within, or certainly very near, the path of the automobile.

By way of comparison we quote the following extracts from Woodley’s testimony on the occasion of the trial of this case:

“Q. You did not slow down your car at all then? A. No, not when he looked at me and stopped.
“Q. What did you next see of him- — he looked at you and stopped and then you went on? A. I went on looking right at him until I got near to him and threw my eyes over to one side and down the street.
“Q. You got near him? A. Yes.
“Q. And then what? A. Going by him.
“Q. Got near him and you were going by him and what happened ? A. The next thing he was looking right at me through my windshield.
“Q. You said you looked to one side for one purpose or another. A. I put my eyes on down. I was passing by him and he was right at me.
“Q. You were looking beyond him then ? A. Yes, I was fixing to pass him.
“Q. You were fixing to pass him and took your eyes off of him. Is that right? A. Why, yes. When he turned around when I passed him — I was fixing to pass him — .
“Q. (interrupting) And he fell into your car when you were not looking. A. I guess he did because he was up on my hood.”
“Q. You did not see him for some little time before you hit him? A. I saw him plain. If he had stopped he had plenty of time to miss my car.”

We do not think the inconsistencies of Mr. Woodley’s testimony are of major importance, but we are firmly convinced by his own statements that he was not keeping a proper lookout and that he was depending upon Ingram, a pedestrian, taking care of himself and his safety, therein failing to assume the obligations which sound common sense, as well as well defined legal principles, require of the drivers of motor vehicles.

Industrious counsel for plaintiff has repeatedly emphasized in his briefs, as well as in oral argument, testimony which appears in the record with reference to tire marks for a distance of some seventy-five feet along Fairfield Avenue. Counsel contends that these marks were made by the Wood-ley car; that they began on the north side of the intersection of Fairfield and continued across the intersection and beyond the south line thereof. In our first study of this record we were not inclined to attach much significance to this fact, primarily because one of plaintiff’s witnesses testified that the skidmarks in question did not lead to the Woodley car. However, repeated reviewing of the testimony has served to convince us that our first impression to the above effect was in. error. Admittedly by Woodley’s testimony he was driving his automobile, a 1938 Buick Sedan, at a speed of about thirty miles an hour. At this rate of speed it would have been utterly impossible for Mr. Woodley to have brought his car to a complete stop, as was done, within the extremely short distance beyond the intersection, which distance was a matter of only a few feet. In this connection it must be borne in mind that Woodley testified that he did not put on his brakes until Ingram’s head had crashed into the windshield of the car. Inasmuch as Ingram was crossing at the south sidewalk line of Wilkinson Street, and since the front portion of Woodley’s car had passed Ingram in safety, the acceptance of this version of facts would require a holding that Woodley’s physical reaction of removing his foot from the accelerator to the brake, applying the brake, and the effectuation of a complete stop of the automobile traveling at thirty miles per hour, required the consumption of only a fraction of a second of time and a distance of not more than the length of the automobile itself. Such a conclusion would be absurd and completely insupportable. It therefore becomes obvious that Woodley must have applied the brakes of his car before he struck Ingram.

Careful reviewing of the record brings to light the fact that there is testimony to the effect that at some time subsequent to the accident Woodley’s car was removed from the position where it had been brought to a stop after the impact and was moved over nearer the west curb on Fairfield. This would account for the fact that the witness, who later came on the scene and who testified positively as to the presence of the skidmarks of the tires along Fairfield, was correct in attributing this evidence to the ■braking of the Woodley car. It would further reconcile this fact with the testimony to the effect that the skidmarks did not lead to the Woodley car.

There is an additional reason in this connection which adds certainty to the conclusion we have reached. In a most excellent article by Hollingsworth B. Barret, Esq., a member of the Shreveport Bar, entitled “Mechanics of Control and Lookout in Automobile Law,” Tulane Law Review XIV, 492, there is set forth a data table bearing upon the factor of “stopping distance.” The figures given in this table fix the “stopping distance” of a motor vehicle traveling at thirty miles per hour, forty-four feet per second, at 68.3 feet with a “stopping time” of 2.3S seconds. Both figures include an allowance for “reaction time.”

Conceding that the above figures are only approximate, and making due allowance for a reasonable margin of error either way, they bear out the conclusion which we have reached as above stated. Using the same data table we observe that the net braking distance of a vehicle traveling at a speed of thirty miles per hour is given as 35.3 feet. This would be the distance in which the actual application of brakes would be reflected by skidmarks on the pavement. According to the testimony the skidmarks measured approximately seventy-five feet. While it is true that the witness who testified on this point could not recall. the beginning point at which the skidmarks became apparent, he was certain that they passed the intersection south of Wilkinson Street.

Measurements taken at the street intersection determined the fact that Wilkinson Street from curb to curb is 27 feet 7 inches west.of the intersection and 30 feet 1 inch east of the intersection. The sidewalks on the south side of Wilkinson Street, both east and west of the Fairfield intersection, are 3 feet 11 inches in width. Keeping these measurements in mind, and making the fullest possible allowance in defendant’s favor with respect to the distances involved, the fact becomes strikingly cleár that Woodley could not have begun making application of his brakes only at the moment of the impact and brought his car to a complete stop only a few feet beyond the south line of -Wilkinson Street at the intersection. If his story is given full credence, his car would have been not less than sixty feet from this point when it came to a stop.

From these observations we feel certain that Woodley must have begun to make application of his brakes as soon as he noticed the presence of Ingram in the street. If he was some forty feet behind another car, the reaction distance referred to above gives almost the exact allowance which would have enabled him to set his brakes at or just before entering the intersection at the north line of Wilkinson Street. This view is further strengthened by the testimony of the negro yard man, who was on the northwest corner of the intersection, to the effect that his attention was drawn by the sound of brakes and that at the time the Woodley car was just north “of the corner of Wilkinson.”

There, is no intention on the part of this Court to impugn the good faith of Mr. Woodley or his effort to truthfully set forth the facts as-he saw them. The difficulty of a determination of this case has necessitated a critical analysis of all the testimony, and we are satisfied that by reason of the excitement and shock attendant upon the unfortunate accident, Mr. Woodley, in retrospect, was unable to explain just how the accident occurred.

These facts we find to be indisputable:

(1) Woodley did not see Ingram when he was at a sufficient distance to have taken necessary precautions in avoiding the accident, or,

(2) If he did see him, he allowed his attention to stray to such extent that he did not keep the pedestrian, who was in a place of danger, under close and continued observation, whiv.h would have permitted him to avoid the accident.

Under either of these theories Woodley must be held guilty of such negligence as renders him liable in damages.

We believe the true facts to be that Woodley, following some forty feet more or less behind a car, first looking in his rear view mirror, then observing the intersection, which he was approaching, for vehicular traffic, suddenly, to use his own words, “happened to see a glimpse” of Ingram when he was so close that the immediate application of his brakes did not serve to avert the accident.

We have carefully considered the cases cited in the briefs of counsel for defendants, particularly the two cases which were especially emphasized as being applicable to the instant case, Johnson v. Zeringue et al., La.App., 151 So. 105, and Faecher v. Claret, La.App., 162 So. 227. Our appreciation of the facts of the case before us serves to readily distinguish it from the cases upon which defendants rely, and therefore renders inapplicable the holdings made and the conclusions reached in the cited cases.

We are further confirmed in our conclusion by the fact that the distinguished Judge of the District Court considered this matter on two separate occasions and each time gave judgment in favor of plaintiff. By reason of the interpretation of the facts involved as above set forth, which facts we feel to be decisive, we find no error in the judgment from which the appeal has been taken.

As to the charge of contributory negligence which is urged by defendants, we feel that the clearly enunciated principles set forth in Rottman v. Beverly, 183 La. 947, 165 So. 153, conclusively dispose of this contention.

Counsel for defendants have made no issue as to the quantum of damages awarded in the judgment appealed from before this Court. Our consideration of the record convinces us that the award made is proper.

The judgment appealed from is affirmed at appellant’s cost.


author: TALIAFERRO, Judge.

text:
    BROOKS v. AIRLINE MOTOR COACHES, Inc., et al.
    No. 7167.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      Irion & Switzer, of Shreveport, for appellants.
    James G. Palmer, of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff, a Negro man aged sixty, alleging that he suffered physical injuries while riding on a bus owned and operated by Airline Motor Coaches, Incorporated, hereinafter called the bus company, instituted this suit against said company and its insurer, Highway Insurance Underwriters of Austin, Texas, to recover a large amount of damages. The below related facts are uncontradicted:

The bus company is authorized to and is engaged in the operation of a line of passenger motor busses in the States of Louisiana and Texas.' It is, therefore, a common carrier.

Late in the afternoon of November 4, 1946, plaintiff and some friends boarded a bus of said company in the City 'pf Shreveport, Louisiana, that was destined to pass through the places where they lived, south of the city, and paid to the motorman the required fares. As the bus. proceeded southerly on Southern Avenue in said City, an automobile driven by Mrs. T. B. Wallace emerged from an intersecting street, going westerly, and in the effort to turn left on the Avenue, collided with the left side of the bus a: and about its left front wheel. Both vehicles stopped instantly. The automobile was only slightly damagad. The wheel of the bus was so badly injured that-when, a few minutes later, the motorman put the bus in motion, in an effort to remove it to the west curb of the street, the left wheel fell from the axle, allowing that corner of the bus to heavily descend to the pavement, a distance of some 18 inches. Mrs. Wallace, after the lapse of a few minutes, drove her car below the bus and parked it against the west curb of the Avenue. From this time on, the material facts of the case, in the main, are in serious dispute.

Plaintiff alleged that all seats on the bus were occupied when he boarded it and that he and several other passengers, on account of its overcrowded condition, were standing in the aisle when the accident occurred; that the motorman, after closing the bus door, following the collision, put the bus in gear and started it forward; that this movement caused the injured wheel to fall off and the axle’s end to drop to the pavement; that the bus tilted so badly he was violently thrown upon and across the arm of one of the seats in front of him, his back and side striking the same, and that several of the standing passengers, having lost their balance, fell upon him; that as a result of ,hese movements he received severe, painful and permanent injuries to his spine, vertebrae, etc.

The following' acts of negligence are charged against the motorman, to-wit:

1. That the accident could and would have been averted had he been maintaining proper lookout;

2. That he operated the bus at an excessive rate of speed in view of its overcrowded condition;

3. That he tried to drive the bus forward without inspecting the wheel to ascertain if its condition warranted him in believing it was safe to do so without unloading; all thei passengers; that the wheel’s injured and unsafe condition was obvious to any one who would have taken the pains to inspect same.

Defendants deny that plaintiff, if injured, as by him alleged, was injured because of the negligence of the bus company or its agent. They aver that the accident occurred solely through the negligence of Mrs. Wallace in that she failed to stop her car before endeavoring to cross Southern Avenue in front of the on-coming bus which enjoyed a superior right thereon •under ordinance of the City of Shreveport. AH other allegations of the plaintiff having to do with the injuries allegedly received .by him, and the cause thereof, are denied.

The case was tried with intervention of a jury who rendered a verdict in plaintiff’s favor for $6,145.00. From a judgment in keeping with the jury’s verdict, the defendants appealed. Plaintiff, answering the appeal, prays for increase in the judgment.

If plaintiff’s case depended for its success upon injuries sustained by him as a direct result of the collision, clearly he would be without right to recover therefor. This conclusion is inevitable from undisputed facts. The collision is solely attributable to the negligence and carelessness of Mrs. Wallace. The bus enjoyed right of way on Southern Avenue. It was traveling at a lawful rate of speed when the Wallace car ran into it, and immediately prior. Mrs. Wallace attempted to cross the Avenue immediately behind a trolley bus that was going northerly and .did not see the defendant’s .bus until it was too late to avoid colliding with it. These established facts exonerate the operator of the bus from any negligence whatever as a contributing factor to the original accident. Charges of negligence Nos. 1 and 2, above mentioned, are without merit.

The more serious phases of the controversy revolve around the alleged negligence of the motorman in trying to drive the bus forward when the left wheel was virtually in the act of falling off; and whether plaintiff was in the bus when the wheel did fall off.

The motorman is positive that immediately after the collision he turned around, faced the passengers, asked if any one was hurt and that plaintiff spoke up and said ■onie of his feet had been injured. No other complaint was made. He is also positive that he at once accompanied plaintiff from the bus onto the sidewalk and then turned his attention to the Wallace car in which Mrs. Wallace’s two small boys were crying, and that after talking to her a few minutes and being informed by her that neither she nor the boys were injured, he returned to the bus, put it in gear and went forward a few feet when the wheel fell off. He is also positive that plaintiff did not re-enter the bus. With respect to the motorman’s knowledge of the injured wheel’s condition, he testified as follows:

“Q. What did you see with regard to the bus and the car? A. I seen (sic) that the right front fender (of the car) was caved in and the left front wheel (of the bus) was kind of out of line a little bit. That looked like all that was wrong with it.
“Q. Could you tell the wheel would fall off? A. It didn’t look like it would fall off.
“Q. Where were you going to drive to? A. I was going to pull as far as I could to the right.”

Two white women, passengers on the bus, were as equally positive as was the motorman that plaintiff left the bus with the motorman immediately after the accident and did not re-enter it.

Four Negro men, friends of the plaintiff, on the bus at the time, are certain he remained aboard it until after the wheel fell -off. They testified that they saw him fall upon the arm of one of the seats and that three or more colored passengers who were standing in the aisle, lost their balance when the bus suddenly stopped and tilted, and fell upon him. One of these witnesses testified that he "rushed over ;and pulled the people off of him”. All of these witnesses are also certain that not one passenger left the bus until after the doors were opened following the falling off of the wheel.

Mr. E. O. Daniel, Jr., member of the police force of the City of Shreveport, arrived at the scene of the accident a few .moments after it occurred. Mrs.- Wallace’s • car was then still beside the bus and the passengers had not left it. He is positive that the motorman told him that no one to that time had been allowed to leave the bus. He asked the motorman if any one was hurt and he replied: “Not to my knowledge”. The bus door was then opened to allow the passengers to get off. The policeman further testified that at that time a colored boy “came up and told me that there was one of them (sic) colored boys back there was hurt”. This officer then talked to the plaintiff who, he says, was aboard the bus and was told by him that his foot had been hurt by a suitcase falling from a rack. He also recalled, though not distinctly, that plaintiff mentioned that he fell down in the aisle. Plaintiff was asked by this officer if he wanted .an ambulance called to carry him to the hospital, to which plaintiff answered in the negative. The officer then asked him if he was willing to go to the hospital, and receiving an affirmative reply, he made airangements to have this done.

The morning after plaintiff reached the hospital he was found by the examining physician to be in intense pain that emanated from the region of the upper lumbar .and lower dorsal spine. Plaintiff then complained also of pain in the left foot. Examination revealed an old turner, of little significance, over the metatarsal bone.

Radiograph examination of the mentioned portions of the spine revealed the presence of old chronic hypertrophic arthritis that involved several of the vertebrae. ..Ankylosis was in advanced stages, which means that the vertebrae had grown together and had become rigid. These conditions, it is definitely shown by the medical testimony, required several years to come about.

Plaintiff remained in the hospital for eight consecutive weeks. It is well established that an injury of the character he claims to have received while on the bus, could have aroused and activated the preexisting dormant back pathology and produced the pain and disability of which he complains. While in the hospital plaintiff was fitted with a brace designed to support the back and alleviate the pain and discomfort from which he was suffering. He had continuously worn same to the day of trial.

The resumé of facts given above disclose diametrical disagreement between the witnesses of plaintiff and those of defendant as to whether plaintiff was on the •bus when the wheel fell off. It is difficult to perceive how defendants’ witnesses could be so woefully mistaken in their testimony on this question but such a conclusion is inescapable. It is certain plaintiff was not injured from the original collision, the impact which being so light it disturbed no one on the bus. It is equally certain he was injured between the time he boarded the bus and the time he alighted therefrom. The fact that it was thought necessary to send him to and he had to remain in a hospital for eight weeks argues convincingly that he was not shamming about being injured and this being true, surely he was injured at the time and place he and his witnesses assert.

The jury evidently shared this view of the testimony. Whatever else may be said on the subject, certainly there is no manifest error in the jury’s resolution of this complicated factual issue.

The medical testimony is negative as to bone fractures or breaks. Evidently the fall upon the seat’s arm and the weight of the passengers mashed and twisted, to 'some extent, the muscles, tissues, etc., about the affected vertebrae and disturbed the nerves of that region to the extent necessary to produce the pain and consequent disability of which plaintiff complains. The medical testimony supports plaintiff’s assertions of disability to perform hard work of any character. It is possible this degree of disability will be permanent, but it is not certain. We strongly incline to believe it will not be permanent. It is certain that the arthritis will endure.

Continuously, from time he was discharged from the hospital to the date of trial, some eleven months after the accident, plaintiff’s wife, many times during the day, has had to iron his back with an electric iron.

The record- clearly reveals that plaintiff was wholly ignorant of his spine being in the condition herein described. He had all of his adult life engaged in work that required the utmost physical exertion. He was never heard to complain of pain of any character in his back, prior to this accident. For some eighteen months, including all of the year 1945, he worked in a shipyard in Houston, Texas.

Defendants do not controvert the contention that it was actionable negligence, under the prevailing circumstances and conditions, for the motorman to have attempted to drive the bus to any extent after having discovered the wheel was not in normal position. The fact that the wheel was to his knowledge out of line should have prompted him to make adequate examination to ascertain the full extent of injury thereto before proceeding further; and this knowledge, coupled with the fact that the bus was heavily loaded, demanded that he exercise the utmost care and caution for the protection of his passengers.

In a case of this character, based upon a breach of a contract of carriage, it is not necessary in order to make out a case of negligence to prove facts sufficient to constitute gross negligence. Slight negligence which, if omitted, would have prevented a breach of the contract, is all that is required by law. The highest degree of care and caution in such cases is required of the carrier, its agents and employees. This question was maturely considered and discussed in Wallace v. Shreveport Rys. Co., La.App., 175 So. 86, 88. An array of pertinent authorities is therein cited.

Defendants assail the jury’s award as being greatly excessive. They invoke the rule for assessing damages in a case of this character as laid down by the Supreme Court in Caldwell v. City of Shreveport, 150 La. 465, 90 So. 763, reflected from paragraph two of the syllabus, to-wit: “In a personal injury suit, evidence held to show that the traumatic injury was not the sole cause of, but merely superinduced, plaintiff’s locomotor ataxia, the cause of which was a disease lurking in plaintiff’s system at the time of the accident.”

Pursuing this position, they argue that the injury to plaintiff’s back simply super-induced, but did not cause, the pain, suffering and disability that followed; that these resultants are directly traceable to the pre-existing pathology of the spine which was activated and caused to flare up by the trauma.

In opposition to this position and contention, plaintiff cites and relies upon the contrary rule laid down in Lapleine v. Morgan’s Louisiana & Texas R. & S. S. Co., 40 La.Ann. 661, 4 So. 875, 1 L.R.A. 378, to-wit: “The duty of care and of abstaining from the unlawful injury of another applies to the sick, the weak, the infirm, as fully as to the strong and healthy; and when the duty is violated, the measure of damages is the injury done, even though such injury might not have resulted but for the peculiar physical condition of the person injured, or may have been aggravated thereby.”

The court in the Caldwell case made no reference whatever to the Lapleine case. In principle, the court in Cuneo v. Joseph Ariatti, Inc., 154 La. 609, 97 So. 878, followed the Caldwell case, but in Roth v. Russell, 141 La. 581, 582, 75 So. 418, the same court cited and followed the Lapleine case.

This court has uniformly followed the Caldwell case in cases wherein the rule laid down in that case was applicable. See Henderson v. The Louisiana Power Co., 9 La.App. 475, 121 So. 217; Price v. Florsheim, 13 La.App. 298, 127 So. 22; Wallace v. Shreveport Rys. Co., supra; Levy v. Indemnity Insurance Co. of North America, La.App., 8 So.2d 774; Robinsin v. Fossett, La.App.1947, 33 So.2d 546, in which a writ of review was denied by the Supreme Court on February 16, 1948.

We do not know whether the trial judge charged the jury specifically on this controverted question, and for this reason, we do not know whether the jury in arriving at its verdict took into consideration the fact of plaintiffs pre-existing hack condition and made allowance therefor.

In the Caldwell case the court after having been convinced that the trial judge made no allowance for the pre-existing condition that afflicted plaintiff, which manifested itself after and because of the trauma, reduced the judgment by one-third. 'To justify this action, the court said: “Article 1934 of the Civil Code declares that, in the assessment of damages arising ex delicto, much discretion must be left to the judge or jury. In fact, inasmuch as the .same article declares that the assessment of damages in such cases may be made without calculating altogether on the pecuniary loss, the discretion that must be ■exercised is somewhat arbitrary. It appears that the district judge did not make allowance for the fact that plaintiff’s infirmity was not all due to the accident. We have concluded, therefore, in the exercise of our discretion, to reduce the allowance for the personal injury from $3,000 to .$2,000.”

On the other hand, in Roth v. Russell, supra, 140 La. at page 586, 75 So. at page 419, the court made this very definite holding, to-wit: “But as plaintiff was in good health and strength at the time of the accident, the injury must be considered as the proximate, efficient cause of damage which set the other causes in motion, in the .absence of evidence that the enlarged vertebra produced or aggravated the damage independently of the said injury. Lapleine v. Railway & Steamship Co., 40 La.Ann. [661,] 665, 4 So. 875, 1 L.R.A. 378.”

Plaintiff herein sued to recover for pain .and suffering, loss of earnings and earning capacity, due to permanent injury to the spine, for cost of medicine, for physicians’ .bills and, lastly, for cost of the brace. He had a life expectancy of 14.1 years. He 'had earned very substantial wages for' several years prior to the accident. Economic conditions, to some extent, .account for this. There is nothing in the record, save the effects of the accident, to indicate that he would have been, from physical condition, prevented from rendering, in the future, services that would have yielded to him like remuneration.

In view of trial courts’ uniform practice of following the latest decisions of superior courts on law questions, we feel warranted in assuming that the trial judge, in this case,' in his charge to the jury, was governed by and followed the Caldwell case; that is, he charged the jury that in determining the amount of damages to which the plaintiff was entitled, it should take into account the pre-existing latent pathology that was aroused and activated by the trauma, and that the jury heeded the charge.

Therefore, for the reasons herein given, the judgment from which appealed, is affirmed with costs.


text:
    BUFORD v. INTERNATIONAL PAPER CO.
    No. 7157.
    Court of Appeal of Louisiana Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      Madison, Madison, Files & Shell, of Bas-trop, and D. W. Stewart, of Minden, for appellant.
    Julius T. Long, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff, while performing the duties of a contract of hiring with the defendant, International Paper -Company, lost his balance and fell a distance of eight feet upon a concrete floor. Injuries from the fall totally disabled him to continue work and he was paid compensation at the rate of Twenty ($20) Dollars per week until January 24, 1947, a period of some twenty weeks. Payments were discontinued because the attending physician was of the opinion that he was physically able to resume work. This suit was soon thereafter filed.

One question only is tendered, and that is whether plaintiff’s physical condition is such that he can do work that requires manual labor. He alleges that he fell upon the lower part o.f his back, right hip and leg, from the effects of which he sustained permanent injuries to and impairment of his lumbar vertebrae, sacro-iliac area, and of the nerves, ligaments and muscles of those regions. He sued to recover compensation at the rate of Twenty ($20) Dollars per week for four hundred weeks, less payments made.

Defendant denies that plaintiff’s injuries were nearly so serious as by him alleged, and resists the suit on the ground that he has fully recovered from the effects thereof, and, therefore, is able to perform work of the character he was able to perform prior to the time of the accident. Defendant also avers that plaintiff was not cooperative with the physicians who examined and attended him immediately after the accident. But, it is not alleged that such attitude on his part delayed recovery by him.

Plaintiff prevailed in the lower court and from judgment as by him prayed, defendant appealed.

The fall rendered plaintiff unconscious for a few minutes. He landed upon his-right leg, hip and side. . Application of cold water to his face quickly revived him. He was then assisted by two employees to the first aid station, a distance of approximately one-fourth of a mile, and was there placed in charge of the attending nurse. He then complained of pain in those portions of the body upon which he fell. The nurse prepared and applied a cast of some sort and immediately thereafter she directed him to go to Dr. Gray’s office in Springhill,. Louisiana, some two miles distant. He did so and X-ray pictures were promptly made-The record does not contain these pictures nor was testimony adduced as to what they disclosed. After remaining in a room at the clinic some four hours and tiring of loneliness and, as he says, a lack of attention, he called a taxi and drove to the office of Dr. Horn in Taylor, Arkansas, seven miles away. He, of his own volition, selected Dr. Horn, who has no connection with defendant. This doctor gave him some medicine, had X-rays made of his back, hip, etc., and taped the back. Physical examination revealed contusion on the right leg and hand. The X-rays revealed fracture of the rim of the acetabulum only. This is the circular bone of the socket into which the ball of the femur fits.

Dr. Horn had another cast applied and, without consulting the doctor, plaintiff left the clinic the following morning. Soon thereafter, also without the doctor’s knowledge and consent, he removed the cast. However, he was seen professionally by Dr. Horn at intervals thereafter and finally discharged as being able to resume work on January 24th.

Plaintiff, after being discharged by Dr. Horn, engaged counsel to prosecute his claim for compensation and he was thereafter physically examined by four physicians who testified in his behalf and by two physicians and one roentgenologist, who testified on behalf of defendant. There is, as we have many times regretfully observed, hopeless conflict and contradiction in the opinions of these professional men as to the nature and extent of plaintiff’s original injuries, and as to his physical condition as reflected by the X-ray pictures.

The physicians who testified for plaintiff found that the fourth lumbar vertebra had been fractured and that this and other evidence of traumatism about this vertebra disabled plaintiff to follow the character of work he was doing when hurt. Physicians who gave testimony for the defendant, including D'r. Horn, disagree generally with the opinions and conclusions of the physicians who testified for plaintiff. One of defendant’s doctors qualified his opinion of plaintiff’s disability to work by stating that he should be able to do light work. All of the doctors who gave testimony touching same, were of the opinion that an injury to the rim of the acetabulum was not a serious one; and that, under appropriate treatment, it would soon heal without disabling results.

Dr. W. L. Smith of Monroe, Louisiana, the only physician that testified who could be rated as an expert in the talcing and interpretation of X-rays, did not find the fracture of the fourth vertebra and other evidence of traumatism that plaintiff’s physicians found.

This court has often in cases of this character, wherein the expert testimony was found to be in irreconcilable conflict, pitched decision upon the lay testimony. We believe this course to be justified in the present case.

The work plaintiff was doing when injured did not require the utmost physical effort. It did require that he stand upon his feet and use his hands. He was not what might be termed a professional laborer at public works. Over a period of several years, at intervals, he would resort to this sort of work but he owned a farm and, as we interpret his testimony, did not abandon the same as a contributing factor to the support of himself and family while working for others. Dr. Horn drove by this farm quite often.

We are convinced that plaintiff, at the date of trial and prior, was well able to carry on his farming operations and that he did so after being discharged by Dr. Horn in January to the time of the trial of the case in April following. If he is able to do this lcind of work, certainly he is able to do the work he was performing when injured. His farm adjoins a public highway. Two witnesses, besides Dr. Horn, while passing the farm, observed him plowing and dragging the land with a pair of mules. Dr. Horn saw him frequently plowing the land and performing acts that required him to stoop and otherwise exercise his body. The doctor testified that occasionally one or more of plaintiff’s sons was about him while working, but more often than not he was working alone..

Plaintiff admits that he plowed some, but says that because of pain' in his back he could do so for only brief periods. He testified that the burden of the work was done by his three boys, one of whom is of age; that he, in a way, supervised their work. But it is significant that not one of the sons was offered as a witness to support what plaintiff says in this regard.

As before stated, Dr. Horn so far as the record discloses, is under no obligation whatever, contractual or otherwise, to the defendant who paid him for his services to the plaintiff. As said before, plaintiff of his own accord put his case in Dr. Horn’s hands. Therefore, there exists no reason whatever for the doctor to color his testimony in the least nor is there any reason why his testimony should not be accepted at face value; and, when we do this, the conclusion is inescapable that plaintiff has fully recovered from his injuries.

The only question tendered in this case is one of fact, and for this reason we are reluctant to reverse the learned trial judge, but, after a careful study of the testimony in the case, we find ourselves unable to agree with him.

And, for the reasons herein assigned, the judgrpent appealed from is annulled, reversed and- set aside and plaintiff’s suit is dismissed at his cost.


text:
    MATTHEWS v. COUIE (MOTORS SECURITIES CO., Inc., Intervener).
    No. 7147.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      Harris & Harris, of Mansfield, and Whitmeyer & Goetz, of Shreveport, for appellant.
    Cawthorn & Golsan, of Mansfield, for appellee.
   TALIAFERRO, Judge.

To secure payment of his note for Seven Hundred Fourteen ($714.) Dollars, defendant, on September 13, 1946, mortgaged to the intervenor, Motors Securities Company, Incorporated, as described therein, his 1939 4-door Special Buick automobile, motor number 43751227. The act of mortgage was promptly filed for record in the office of the clerk and recorder of DeSoto Parish, the domicile of the mortgagor. Thereafter, to the knowledge of the plaintiff herein, hut without the knowledge or consent of intervenor, defendant removed the motor from the car and installed therein another one.

On October 28, 1946, after the second motor had been put into the car, to secure his note of $600.57 in favor of plaintiff, the defendant mortgaged to him the same automobile and, along with other identifying facts, the motor number was given as being 439549865 or 43964986. The numerals constituting the motor number were in part indistinct. This explains why the alternative number was put in the mortgage. However, the last of the above two numbers is the correct one.

Defendant defaulted on both of said mortgage notes and plaintiff through ex-ecutory process sought to enforce his mortgage by sale of the automobile. Prior to sheriffs sale of the car, the Motors Securities Company, Inc., asserting its mortgage to be superior in rank to that of the plaintiff, intervened in the suit and procured an order from the court requiring the sheriff to retain in his hands the proceeds of the sale of the car until further orders of the court. The contest is over the proceeds.

The record before us does not disclose that the intervention was put at issue b> answer or otherwise, but the case was tried upon the issue tendered by the intervention. Plaintiffs position was then and is now that his mortgage, although subsequent in date and registry to that of the intervenor, primes the same. In support of this position he contends that since the record did not disclose a mortgage that affected defendant’s Buick car with motor number 439549865 or number 43964986, he was warranted in assuming that the car was free of encumbrances ; and, as an innocent third person, he was protected in relying upon the public records.

The lower court sustained plaintiff’s contentions, dismissed the intervention and ordered the fund in the sheriff’s hands paid over to the plaintiff. Intervenor appealed.

At the time defendant purchased the car he was in plaintiff’s employ. Plaintiff advanced him the money to purchase the second motor. It was installed at his place of business. Defendant had only one car, that which is involved herein, and plaintiff knew this. The indebtedness due plaintiff by defendant, represented by the note of $600.57, was in existence for some time prior to the date the note and mortgage were given. Plaintiff demanded of defendant that he pay the debt or give the mortgage.

Plaintiff testified that before taking the mortgage he had his counsel examine the records to ascertain if “there was a mortgage against an automobile with that motor number,” referring to the number of the second motor, and was advised by counsel that there was none. He also testified that the defendant assured him the car was free of encumbrances.

It is not clear to us how anyone could accurately examine mortgage records to ascertain if a car with a certain motor number was mortgaged without knowing the make and model of the car and the name of the owner. The name of the present owner (and past, if any) of a chattel offered for mortgage is the first information the examiner of the public records needs and usually requires prior to making the examination. If he has only the motor number the examination would be interminable and doubtful of dependable results.

Section 6 of Act No. 198 of 1918 reads as follows:

“Be it further enacted, etc., that for the purpose of this Act, it shall be sufficient for the Recorder of each Parish to keep a hook to he known as the Chattel Mortgage Book, which shall be ruled off into columns, with headings as follows:
“‘Time of Filing for Recordation’; ‘Name of Mortgagor’; ‘Name of Mortgagee’; ‘Date of Instrument’; ‘Amount Secured’; ‘When Due’; ‘Property Mortgaged’ ; ‘Remarks’.
“Under the head of ‘Property Mortgaged,’ it shall be sufficient to enter a general description of the property and the particular place where located.”

From the time of filing in the office of Parish Recorder all persons are impressed with knowledge of the contents of a chattel mortgage; and, in addition, it is to be presumed that the recorder after filing the mortgage to intervenor observed the requirements of the quoted law. When this had been done the record clearly disclosed adequate evidence to identify the car that was affected by the mortgage; that is, inter alia, it disclosed that the car was “used” (not new), 1939 model, Buick malee, and 4-Door Special, with motor carrying the number 43751227. It also disclosed that Claude Couie was the mortgagor and that Motors Securities Company, Inc., was the mortgagee. And, even though the motor was afterward removed and in lieu thereof one with different number installed, it cannot be well said that a person who examined the record would not have had brought home to him the identity of the car; especially would this be true of plaintiff who knew the car very well,* its owner, and knew that the owner had only one Buick automobile. Anyway, regardless of the shift in motors, there were ample facts of identification'in the act of mortgage and on the record to put any bona fide inquirer on notice which, if followed up, as would have been his duty for his own protection, would have convinced him'that the car described in the mortgage was the one involved in this case. It is not ■ required that the description of a mortgaged chattel be wholly complete as to details, in order to affect the public. This principle is now well fixed by decisions of the courts of this state, including the Supreme Court. See: Union Building Corporation v. Burmeister, 186 La. 1027, 173 So. 752; Smith et al. v. Bratsos, 202 La. 493, 494-502, 503, 12 So.2d 245.

In the first cited case the court, approvingly quoted from Jones on Chattel Mortgages and Conditional Sales, as follows [186 La. 1027, 173 So. 755]:

“ ‘It is not necessary that the property should be so described as to be capable of being identified by the written recital or by the name used to designate it in the mortgage. * * *
“ ‘It is obviously impossible in most cases-to set forth on the face, of the mortgage all the articles embraced in it with such precision that any one, by a mere inspection of the mortgage, without reference to any other source of information, can identify them. * * * ’ Vol. I, § 53, pp. 94, 95.
“ ‘A description which will enable third! persons, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient.’ Vol. I, § 54, p.. 96.
“ ‘Parol evidence is admissible to identify the chattels mortgaged. Such evidence may aid but not make a description.. The mortgage must of itself suggest inquiry which will result in identification.. It is not possible to describe personal property so well as to preclude the necessity of such evidence to identify it. * * * *■ Vol. I, § 64, p. 129.”

When defendant installed the second motor in the car it became an indispensable part and parcel thereof, and it was thereby as effectively impressed with the mortgage as was the old one. The law (Article 3310 of Civil Code) applicable to improvements placed upon mortgaged real estate has equal application to-a case of the character as that we are now considering. It is not legally possible to effect a mortgage upon the motor of an automobile, separate and apart from the vehicle itself, after the motor has once been installed therein.

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of the intervenor, Motors Securities Company, Inc., and against plaintiff, Frank W. Matthews, recognizing and decreeing its mortgage upon the automobile in question to be superior in rank and to prime that thereon in favor of the plaintiff; and, accordingly, its right to the proceeds of the sale of the . car is superior to that of the plaintiff. It. is further ordered that the sheriff of DeSoto Parish pay over to the intervenor all of said proceeds or fund.

It is further ordered that plaintiff pay all costs of the intervention, and that all other costs be paid by the defendant.


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    CASSAR et al. v. MANSFIELD LUMBER CO., Inc., et al.
    No. 7144.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      R. C. Gamble, of Mansfield, and Cook, Clark & Egan, of Shreveport, for appellants.
    Cawthorn & Golsan, of Mansfield, for ap-pellees.
   KENNON, Judge.

This is a suit for $19,046.83 damages which plaintiffs alleged to be due as a result of an automobile accident on the road four and one-half miles south of Leesville, Louisiana on October 4, 1945. The petition alleged that the driver of defendant’s truck made, without warning, a sudden alid abrupt left turn in an attempt to leave the highway and get on a side road. At that moment plaintiffs were in the process of going around and passing defendant’s truck and when the sudden left turn was made, the left front wheel, bumper and fender of defendant’s truck struck the entire right side of plaintiffs’ car, knocking same a distance of fifty feet and turning it bottom side upward.

The defendants, Mansfield Lumber Company, Inc. and its insurer, filed a joint answer in which the insurance coverage was admitted. It was also admitted that defendant, Mansfield Lumber Company, Inc., was the owner of the truck involved in the accident and that its driver was the agent of the Mansfield Lumber Company, Inc., as alleged and that he was at the time acting in the course of his employment. The answer further set forth that the defendant’s truck, just prior to the accident, was proceeding along the highway in a careful and cautious manner at a speed of not over fifteen miles per hour; that the driver made a proper signal for the left turn in ample time to assure the safety of approaching vehicles; that he looked in the rear view mirror and saw plaintiffs’ car approaching, and knew that he had sufficient time in which to make the left turn, on the assumption that plaintiffs’ car was traveling at a lawful rate of speed. The answer charged that the accident resulted solely from the negligence of Anthony C. Cassar in traveling at an excessive rate of speed, in failing to maintain a proper lookout, in not having his car under control; in failing to observe the left turn signal of the truck driver; in failing to sound his horn in time and in failing to timely apply his brakes. In the alternative, and in the event the Court should hold the driver of the truck to be negligent, the defendants pleaded that the above listed acts of Anthony C. Cassar constituted contributory negligence barring his recovery and that the other plaintiff, Mrs. Helen Cassar, was guilty of contributory negligence in acquiescing in her husband’s negligent operation of the car, in failing to maintain a proper lookout and in failing to give timely warning of the imminent danger which she either saw or should have seen.

The case was tried before Honorable Hal A. Burgess, who served as one of the presiding judges of the Eleventh Judicial District Court until the time of his death, which occurred shortly after the trial of this case and before a decision had been handed down. The case was then argued before Honorable Edwin M. Fraser, who rendered judgment in favor of plaintiffs for a total of $6,546.83. The defendants appealed.

The plaintiffs answered the appeal, praying that the judgment be amended by increasing the award to plaintiff, Mrs. Helen Cassar, by $5,000, and, as amended, affirmed.

Plaintiffs, Anthony C. Cassar and Helen Bordieri Cassar, were married in New York City on September 15, 1945. Using Mr. Cassar’s 1945 Plymouth Sedan, they visited the West Coast, and then proceeded to Camp Polk, Louisiana to visit Mrs. Cassar’s brother. On the morning of October 4, 1945, Mr. and Mrs. Cassar were proceeding north from Camp Polk with Mrs. Cas-sar’s brother and a lady friend of his as passengers in the back seat. On that day defendant’s driver had been dispatched with a light load of building materials to a building under construction on a graveled public road joining the paved highway #171 at a point 3% miles south of Leesville, Louisiana. The road turned west from this paved highway and defendant’s driver, traveling south, should have made a right turn when he reached the graveled road, but he passed the turn, and, after realizing he had gone too far, turned around near the entrance to Camp Folk and proceeded north. The Cas-sar car was proceeding north behind this truck, and the collision occurred on the paved highway as Cassar was attempting to pass the truck on its left at the time that Blanchard, driver of the truck, was making his left turn into the graveled road.

Defendants cite pertinent paragraphs of Rules 7 and 8 of Section 3 of Act 286 of 1938, with emphasis on paragraph (c) of Rule 7 which provides that the driver of a vehicle shall not drive to the left side of the center line in overtaking and passing another vehicle traveling the same direction unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety and providing that whenever an accident occurs under such circumstances, responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking and passing.

Plaintiffs’ main contention is that the truck driver made the left turn after seeing the approaching car in his rear view mirror and when he should have known that such turn could not be made in safety.

Blanchard, driver of defendant’s truck, testified that before beginning his left turn he looked into his rear view mirror and saw the Cassar car approaching and also heard the horn blow. The Court re-questioned him on this point:

“By the Court: You state that you had seen him through your mirror and thereafter you heard him blow his horn? A. That’s right.
“Q. Did you ever make any effort to look where he was when he blew his horn ? A. No, sir.
“Q. You never looked back after you heard him blow his horn? A. No, sir.”

Defendants’ counsel on re-direct examination questioned Blanchard as to whether he had started the turn when he first heard the horn blow:

“Q. When you first heard the horn blow had you started making the turn ? A. Just fixing to make my turn when I heard the horn.”

It is not clear to us just what distance Cassar was from the defendant’s truck at the time he sounded his horn. However, this distance loses some of its controlling weight in view of Blanchard’s testimony that he observed plaintiffs’ approaching car when he glanced into the rear view mirror prior to beginning his left turn. After observing the approach of plaintiffs’ car, he should have known that his own left turn could not be made in safety. Hence, we conclude thati defendant’s driver was negligent. Paragraph (a) Rule 10, Section 3 of Act 286 of 1938.

We consider the requirement of paragraph (a), Rule 10, namely, that before turning from a direct line a driver "shall first see that such movement cam be made in safety" to be the more important portion of that rule, and that the further requirement that appropriate hand signal shall be given “whenever the operation of any other vehicle may be affected by such movement” is an additional and not an alternative requirement and when a driver makes a left turn under circumstances that the movement cannot normally be made in safety, it is not a valid excuse that he gave the appropriate hand signal before making the obviously unsafe movement.

The contributory negligence charged against Cassar is that he operated his car at an excessive rate of speed, driving same on the left side of the road without a timely signal of his intention to pass; that he failed to apply his brakes and keep his car under control.

Mr. Cassar’s brother-in-law testified that the truck ahead was moving very slowly when it began to make the left turn. Mr. Cassar’s wife testified that when she first saw the truck, it was on the shoulder. Presumably, this was the right shoulder that he had pulled over on preparatory to making the left turn. Mr. Cassar testified that his car (which was traveling north) was on the east side of the center line when struck by the truck, which indicates that he was not giving way as far as he could have to the left in order to avoid striking the truck. It is true that Mr. Cassar blew his horn before the actual impact. The fact that he gave audible warning of his presence does not excuse him from his other acts of negligence in not timely slowing down his car and bringing same under control.

The case of Burns v. Evans Cooperage Co., La.App., 17 So.2d 743, presented a collision situation somewhat similar to the one before us. There the Court held that even if a truck driver negligently makes an abrupt left turn, a following motorist who was far enough to the rear to have avoided the mishap had he been traveling at a reasonable rate of speed was guilty of contributory negligence barring recovery.

The record establishes that Mr. Cas-sar was operatiing his car at a speed too high under the circumstances. He should have brought his car under control earlier than he did. Wc therefore hold that he was guilty of contributory negligence barring his own recovery of damages.

Defendants have 'pleaded as a bar to recovery by plaintiff, Mrs. Cassar, her contributory negligence in failing to observe the dangerous situation and to warn her husband of the imminent danger, Having found as a fact that the driver of the automobile was guilty of contributory negligence, we now consider whether the passenger in the vehicle — who is under a lesser responsibility for observing the road ahead, etc. — was also guilty of contributory negligence in failing to warn the driver.

The duty of a guest in an automobile to act in the avoidance of accidents is primarily that of warning the driver of the existence or sudden appearance of unexpected obstacles and hazards. It is not incumbent upon the guest to suggest a slowing down each time the host driver overtakes a vehicle, or generally to indulge in “back seat driving.” It is not expected that the guest will continually endeavor to substitute his own judgment for that of the driver in matters of routine operation of the car. In the case before us, we do not find that the situation was obviously an emergency one for a sufficient length of time before the collision to impose upon Mrs. Cassar the duty of giving warning to the driver. As a guest in the car, she had the right to rely to a reasonable extent on the care and proper management of the car by the driver. Delaune v. Breaux, 174 La. 43, 139 So. 753. Coffey v. LaLanne et al, La.App., 20 So.2d 614.

Plaintiffs, in answer to the appeal, requested that the damage awarded to Mrs. Cassar be increased from $5000 to $10,000. Counsel for defendant has urged that the $5000 award made be reduced.

At the time of the trial — -fifteen months after the accident — Mrs. Cassar complained of recurrent headaches, pain and swelling of the left thigh, insomnia and nervous disorders. Meantime, she had undergone an abdominal operation, its cause not shown to be connected with the injury.

In addition to her subjective symptoms, there was still visible a healed blood clot in the muscles of her left thigh.

The preponderance of the medical testimony, including that of defense witness, Dr. C. A. Peterson, was that Mrs. Cassar’s recurrent headaches and excess nervousness, as well as the hip condition, could be attributed to the accident. Fortunately, for her sake and for the defendants in the matter of damages, she is improving. We have concluded that a fair award is $3,500.

For the reasons assigned, the judgment insofar as the awards to plaintiffs, Anthony C. Cassar and New York Underwriters Insurance Company, is reversed and judgment is hereby rendered rejecting their demands.

The judgment of the District Court awarding damages to Mrs. Helen Cassar is reduced to $3,500, and, as amended, is affirmed.

Costs of appeal to be paid by plaintiffs. Other costs to be borne by defendants.