text:
    LORET v. ARMOUR & CO. et al.
    No. 2920.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21, 1947.
    Watson Blanche Fridge & Wilson and Harvey H. Posner, all of Baton Rouge, for appellants.
    Percy & Wirtz and Jos. A. Loret (in person), all of Baton Rouge, for appellee.
   LE BLANC, Judge.

The automobile of Mr. Joseph A. Loret, a 1941 Special Deluxe two door Chevrolet, was involved in an accident on March 6, 1946. His wife, Mrs. Catherine Weber Loret, was driving the car, returning to their home which is situated on the Mississippi River Road, about six miles south of the City of Baton Rouge. It was about five o’clock in the afternoon and Mrs. Loret was returning home by the usual route they follow, that is, after leaving Nicholson Drive she entered a street known as McKinley Street which begins at a point east of the Yazoo & Mississippi Railroad tracks and runs west towards the Mississippi River Road. She had reached a point about 40 to 50 feet from the river road, intending to turn left into that road to go to her home when there was a collision between her car and a truck belonging to Armour & Company which was being driven at the time by one of its employees, a negro named Ray Williams. Williams lived on Terrace Street, the next street south of McKinley Street, and he was on his way back to the place of business of his employer to' deliver the truck as that is where it was kept after the day’s work was over.

Claiming that the accident and damage to his automobile, as well as other items of damage he claims to have suffered, were caused by the negligence of the driver of the Armour truck, Mr. Loret instituted this suit to recover judgment against Armour & Company and its liability insurer, Zurich General Accident & Liability Insurance Co., Ltd., in the sum of $914.85. He charges the driver with driving the truck, at the moment of the accident, in a reckless and careless manner and at a rapid and excessive rate of speed; that after entering McKinley Street he kept his truck on the south side of the street instead of the north side where there was plenty of room for him to meet the automobile; that he either saw or should have seen the automobile travelling westward from the time it had crossed the railroad track and had he been keeping a proper lookout he would have avoided running into the automobile when it was on its right hand side of the street, which was the proper place for it to be.

He alleges that the driver of the truck was the agent, servant and employee of Armour & -Company and that at the moment when he ran the truck into the automobile he was its servant and employee, acting within the scope of his employment as such and in the exercise of the functions and duties of his employment.

The damages claimed are itemized in very minute detail by Mr. Loret and we will try to condense them as much as we can. The largest item is for depreciation of the value of his automobile. He had it repaired and put in running condition at a cost of $175.61, but these repairs did not include the replacement and repair of a ruined tire and wheel. He had to replace this tire with another at a cost of $7.50 and the broken wheel at a cost of $5. He claims however that the automobile never ran well again after the repairs had been made and that as it was absolutely necessary for him to have a car for use in business, he was obliged to trade it in and in the trade he received a credit of $210. He claims however that before the accident the car had a low ceiling price under the O.P.A. of approximately $800 and that consequently it had depreciated in an amount between what the ceiling price was and the amount he received as a credit in the trade for a new car which represented the sum of $590. He claims that as he was deprived of the use of his car during the time it was being repaired, that is between March 9, 1946, and March 14, 1946, inclusive, he had to hire taxicabs and this cost him $19.50. After March 19, 1946, his car was still laid up and instead of riding in public conve}rances he hired an automobile by the week and that cost him $50.50, plus insurance which he had to place on that car at a cost of $14.48.

He also claims the sum of $49.66 which he says he incurred as doctor and medical bills in treatment of Mrs. Loret for injuries which he alleges were the result of the accident; also the sum of $2.15 which he had to pay a nurse for taking care of their two year old child on the occasions when Mrs. Loret had to visit the doctor’s office.

The defendants filed a.joint answer in which they denied the negligence charged against the driver of the Armour truck, as alleged, and in the alternative pleaded contributory negligence on the part of Mrs. Loret for having failed to keep a proper lookout in approaching the Mississippi River Road. As a special defense they plead that the driver of the Armour truck, though admittedly a servant and employee of the defendant Armour & Company, had deviated from the course of his employment at the time of the accident and therefore the defendants cannot be held liable for his. negligence in case any is shown.

After the trial of the case in the court below there was judgment in favor of the plaintiff awarding damages in the sum of $308.22. Defendants appealed, and plaintiff has answered the appeal asking that the damages be increased to the sum originally prayed for by him.

As will be noted from the foregoing statement, there are several points involved in the case, the first being the negligence charged against the driver of the defendant Armour truck, the second the contributory negligence of Mrs. Loret, the third the legal proposition presented in defendants’ answer to the effect that there was a deviation by the employee from the scope of his employment, and the fourth, assuming that plaintiff is entitled to recover, the amount of the damages sustained.

On the first point we find no difficulty in agreeing with the trial judge that the testimony strongly preponderates in favor of the plaintiff to the effect that the accident was caused by the negligence, and solely by the negligence, of the driver of the truck. The accident happened in .the afternoon when it had been and probably was still raining a light drizzle. Mrs. Loret seems to have been very careful in her manner of approaching the river road in order to make her left hand turn to go south. She had just crossed the railroad tracks and, as she says, had slowed down in order to make the crossing. As it was only a few hundred feet from there to the river road she had not, as 'she says she never does, accelerated her speed. Her testimony is, and the physical facts as well as the position of her car after the accident all support her, to the effect that her car was on the right hand side of the road and that it was run into by the truck on its left front end. There is hardly- any testimony to dispute these facts except that of the driver of the Armour truck who, hesitatingly, would now have it appear that Mrs. Loret’s car occupied the center of the , street when the collision took place. We say hesitatingly, because in a statement given by him to Mr. J. H. Percy, Jr., one of the plaintiff’s attorneys, he had said that she was on her right hand side of the street and practically admitted that he had run into her car. He now tries to have the court believe that part of the statement was added after it had been written and he had signed it. Looking at the form of the handwritten statement it would seem to be a physical impossibility for anything to have been added to it at the place where the questioned part of it appears and besides it could hardly be expected that the court would accept his word against that of a highly respectable attorney such as we consider Mr. Percy to be.

The position of the Loret car after the collision and the debris from the broken glass both prove conclusively that the impact took place on the right hand side of the street and that the truck driver was careless and negligent either in making his turn into that street or in straightening out his truck after he had made the turn.

The testimony shows he had an open view of McKinley Street as he approached it on the river road and he gives no reason why he did not see the Loret car except to further involve himself or his employer in negligence as the reason he surmises is that the windshield wiper was not working. Windshield wipers are used for the very purpose of permitting a driver to look ahead of him in weather such as the evidence shows existed that day and in running a truck without one, he and his employer, in permitting him to do so, were further guilty of negligence.

Under the view we take of the facts in the case concerning the negligence of the driver of the truck it is unnecessary to do more than state that there is nothing at all to indicate negligence on the part of Mrs. Lóret and therefore the plea of contributory negligence avails the defendants absolutely nothing.

With regard to the special defense that the driver of the truck had deviated from his course of duty, we again agree with the trial judge in his decision of that issue.

From the facts on that point it appears that this driver had left his employer’s place of business that morning with a load of merchandise to be delivered in Plaque-mine. It took him the greater part of the day to do that even though he did not take time off in Plaquemine, or on the road, to eat his lunch or dinner as under the rules of his employment he was permitted to do. Evidently he preferred to drive back to Baton Rouge and go to his home for dinner in the late afternoon for which purpose he drove his truck to Terrace Street where he lived. Terrace Street is south of the place where the Armour business establishment is in the city of Baton Rouge. After he had finished his meal, apparently he had considerable time ahead of him before returning the truck to his employer’s place of business and instead of turning north from Terrace Street and thereby taking a shorter route, he turned south on the river road in order to go to McKinley Street from where he would get on Nicholson Drive which is a paved highway leading into the city. It seems to be admitted that this driver was within 'his right in having gone home for his dinner and that until he had delivered the truck back to his employer’s place of business he was acting within the course and scope of his employment. However it is charged that when he turned left and went south, and therefore chose a longer route back to the place of business instead of having gone by the shorter route, he deviated from his line of duty and as he did so in order to “kill time” as the expression is used, he had started on a mission of his own and the accident having happened during that period of deviation, the employer is released from liability.

The distinction which is sought to be drawn on this legal point appears to us to be very narrow indeed and cannot stand for two reasons; First, conceding that the route which the employee chose was the longer, it nevertheless developed that it was the better one as he shortly would have been on a paved highway and second, no matter what route he chose, his purpose, and the only purpose he could have had in mind at that time, was to return the truck to his employer’s place of business and it could make no difference in the accomplish- r mcnt of that purpose whether he chose the longer route by a better road or the shorter route and idled along the highway. If by going on a different route he had had some other object or motive pertaining to himself to fulfill it might be said that there would have been a deviation; but his purpose in starting out was always the same and that was to return this truck back to his employer’s place of business which it was his duty to do.

We believe that the rule laid down for the purpose of construing this point of law, as pointed out in Tulane Law Review, Vol. 14, p. 72, and applied in the case of Warnick v. Louisiana Highway Commission, La.App., 4 So.2d 607, is sound and can be appropriately used here. It involves three elements, the first being that the trip on which the employee is engaged at the time must have had its origin in his employer’s business, second, the mental purpose of the employee following any deviation he may have made must be to return to his next duty whether it be to continue his work or to return the vehicle of the employer to the place of business, and third, the purpose to return must have been put into effect by starting the return journey. All three elements appear significantly in this case and we thoroughly agree with the trial judge in holding that this employee, at the time of this accident, was engaged in the course and scope of his employment and consequently his employer has to be held liable under the doctrine of respondeat superior. ; ¡

That brings us now to the consideration of the damages and the awards made by the trial judge. The items which were rejected by him were those for the depreciation of his car claimed by plaintiff, the item of $14.48 for insurance plaintiff carried on the automobile which he had rented while his car was being repaired and $2.15 for nursing his child while his wife visited the doctor’s office. These are the items which the plaintiff seeks to be awarded in his answer to the appeal. Counsel for defendants maintain, in case there is liability, that the items rejected by the trial judge were all correctly disallowed and contend further that he should have disallowed the item of $20 for medical examination and $15 for x-ray for an alleged back injury sustained by Mrs. Loret because there is nothing in the record to connect such an injury with the accident. Otherwise they seem to concede, granting there is liability, that the items allowed were properly awarded.

The largest item rejected is the one for depreciation of his automobile, the testimony on which is, in effect, as follows: The automobile was in good running order prior to the accident and although it had been used for five or six years and the paint and upholstery were worn a bit, still mechanically it was performing satisfactorily. Plaintiff evidently thought that the car could be put in the same condition it was before the accident since he spent $175 to have it repaired. By his testimony, and we would say that no one could say better than he, in that respect, the car never performed as well after it was repaired, as it did before the accident. It is true that he did not take it to a mechanic but he testified that a negro who worked for him knew a lot about automobiles, that he worked on it and apparently he would get the car to run. It got out of order so frequently however the plaintiff concluded it could no longer serve its purpose and he decided that he would have to replace it with a new car. He ran into the same difficulties and delays that all people do these days to get a new car but finally prevailed on Brame & Carter, Plymouth dealers in Baton Rouge, to let him have a new Plymouth on a trade-in. He says that he was very satisfied to get a trade-in value of $210 on his car, appreciating as he did, the condition it was in. It is shown that at that time the ceiling price fixed by the O.P.A. on cars of the model of his was $800 and as a matter of fact, the party to whom Brame & Carter sold the car, subsequently sold it to another party for $786.80.

As stated plaintiff says he considered himself lucky to have obtained a trade in value of $210, and Mr. Carter of Brame & Carter testified that that was its value at the time of the trade-in, adding that it was in a bad condition mechanically. The district judge has to say that the plaintiff is not an automobile expert, from which it is to be inferred that he would not know much about values, but that certainly cannot apply to Mr. Carter who is an automobile dealer and who testified that $210 was the value of the car. Naturally, if the ceiling price placed on the automobile was $800 and to an automobile dealer, as well as to the owner, it was not worth more than $210 after having been involved in an accident because it was mechanically “beat up,” it strikes us that the car had depreciated the difference between the ceiling price fixed by a government agency and its actual value which is the sum of $590. Undoubtedly under the evidence before us, that depreciation was caused by this accident since the car operated so satisfactorily before and so badly thereafter and therefore we hold that plaintiff is entitled to recover on this item.

Another item rejected by the trial judge on which we do not agree with him is the one for $14.48 paid by plaintiff to carry insurance on the car he rented while his car was laid up for repairs. The reason for disallowing this item seems to be that plaintiff carried such insurance on his automobile and it is stated that that policy also covered the car he had rented. We find nothing in the record which tends to prove that, and Mr. Loret, an attorney well versed in this branch of law, testified that he had no idea that his policy covered this car he had hired. We feel sure that if he thought it did, he would not have gone to the expense of paying $14.48 for another policy which gave him no more protection than the one he had already paid for. This item also will be allowed.

The last item of $2.15 for nursing of the child which was rejected by the trial judge is one which, we agree, seems to be a bit too remote and we think was properly disallowed.

The items which counsel for defendants now claim should have also been rejected are those incurred by Mr. Loret for having his wife examined for an alleged back injury. From the testimony it appears that about a week after the accident Mrs. Loret began to feel a backache and as she had never suffered any before the accident, it would look natural that they might have suspected that the accident had something to do with it. She consulted Dr. Kern who found it necessary, in order to make a report to her, to have an x-ray made. His advice at the time he made his report was not to do anything about it right then. True it is that from his report he did not directly connect her complaint with any injury she might have sustained in the accident, but it is equally true, as far as the evidence shows, he did not convey the impression that it was not probably the result of such an injury. Under the circumstances under which her suffering arose it would seem logical for them to have had a suspicion that it was produced by the accident. We think her husband was within his rights in having her examined by a physician and in charging the defendants with the examination as an item of damage suffered by reason of this accident.

For the reasons stated it is ordered that the judgment appealed from be amended by increasing the amount of the award from the sum of $308.22 to the sum of $912.70 and that as thus amended it be affirmed.

The defendants are to pay the costs of this appeal.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    HOWELL v. CLEMONS BROS. LUMBER CO.
    No. 2931.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21,1947.'
    Wz-it of Certiorari Denied Feb. 16,1948.
    Parker, Seale & Kelton, of Baton Rouge, for appellant.
    Jos. A. Sims and Ben N. Tucker, both of Hammond, for appellee.
   OTT, Judge.

The plaintiff claims to have sustained an injury resulting in a right inguinal hernia while working for the defendant company on August S, 1946. He sues for compensation at the rate of $20 per week for a period not exceeding 400 weeks, plus the maximum allowance for medical expenses. The trial judge rendered a judgment in .his favor for compensation as claimed, with eight per cent per annum interest on the weekly installments from their respective due dates, plus the sum of $5 for medical expenses. Defendant has appealed.

Other than a question of law presented by an exception to be mentioned later, the case involves only a question of fact, that is whether or not plaintiff sustained the hernia which he now admittedly has while working for the defendant. The evidence shows that the defendant was receiving 60 cents per hour and was working ten hours per day for five and one half days per week. He did not work regularly the full number of days per week, but earned overtime, so that in any event his weekly wage based on his daily rate of pay of $6 would make his weekly earnings more than sufficient to give him the maximum of $20 per week if he is entitled to compensation.

Plaintiff testified that he began working for the defendant lumber company in May, 1946; that around August Sth of that year he was lifting a piece of lumber measuring 2x12 inches by 18 to 20 feet in length, and while he was trying to lift this timber from the green chain over the banister, the piece of timber got over-balanced and he strained himself trying to hold it; that he began to hurt down in his right side, and when he went home that night he found a lump in his right side and showed it to his wife and son; that he told a fellow workman, Erwin, the next day about the accident but did not tell his employer at that time as he was afraid he would lose his job. He further testified that he continued work on the job, but his side hurt so bad that he had to hold his hand to his side while working; that he told some of the colored men on the job how he was hurting, and asked them what they thought he should do, and they suggested that he go and see the boss and have something done about it. He saw Mr. Clemons, one of the defendants, in about two weeks, and Mr. Clemons sent him to Dr. McClendon.

Plaintiff went to see Dr. McClendon and the doctor had him wear a truss. He says that he worked two or three more days, but on account of the hard work handling the lumber on the green chain, he went to see Clemons to get more help. He says instead of giving him more help Clemons discharged him. Plaintiff testified that he had never had a hernia prior to the time he strained himself in lifting the lumber, but had been able to work regularly. He admits that he did not become nauseated at the time he claims to have received the hernia. The doctors, however, state that a strain could cause a hernia without producing nausea at the time.

Plaintiff’s wife and son testified that he showed them the lump in his side the night he came home frofn work, one' of them stating that the lump was as large as a golf ball. They both stated that he told them he got hurt at the mill that 'day lifting or pushing some lumber on the green chain. The fellow employee, Erwin, testified that in the early part of August, 1946, plaintiff pulled down his clothes and showed' him where he was ruptured, and stated that he had just gotten the lump in his-side. The witness told him to tell his employer; that plaintiff continued to work for a few days, and told him he was getting worse and went to see the doctor.

Dr. McClendon examined plaintiff on August 20, 1946, and found that he had a right inguinal hernia, which the doctor called a chronic hernia, however, he stated that he could riot tell how old the hernia was at the time he saw plaintiff. The doctor gave plaintiff a truss to wear, and stated that he was not able to do hard work.

Plaintiff was examined by Dr. Thames the last of August, 1946, and the doctor found a direct inguinal hernia about the size of a golf ball which is reducible and does not extend into the scrotum. The doctor could not say how long the hernia had existed, and stated that it is impossible for anyone to examine a person for the first time and find a hernia and state how long the hernia has existed.

A colored man by the name of Martin was called by the defendant and stated that he began working on the green chain for demons in June 1946; that sometime in August or July, plaintiff told him his side was hurting, and Mr. Clemons sent him to a doctor. This witness is not very definite in his dates. On being asked if he had not heard plaintiff complain of having a sore side before July or August, he answered that he had not; that plaintiff never told him when he got hurt, but that he was hurt on the job before the witness came there in June.

Another witness named Lee called by the defendant stated that plaintiff told him he got ruptured, and the witness told him he had better see Mr. Clemons and go to see a doctor; that plaintiff went to see a doctor; that the plaintiff told him about the injury about a week before he quit work, but never heard him make any complaint before that time.

Two or three other witnesses were introduced by the defendant whose testimony tends to show principally that plaintiff did not handle the large timbers, 2x12 and 2x10, which he states he was handling at the time he claims to have sustained the hernia. It appears that several other men worked on the green chain with plaintiff and each man had certain sizes of lumber to handle on the chain. While the preponderance of the evidence is to the effect that plaintiff handled smaller size lumber than he claims he was handling, yet it is probable that at times he might have been required to handle some of the larger timbers. In any event, this is not so important as the medical opinion is to the effect that a hernia can be caused by a strain or jerk received in any manner, and whether plaintiff was handling two by fours, two by sixes, or larger sizes, he could have sustained or received a rupture, particularly- in view of the fact that he seems to have had weak inguinal rings.

Copies of reports of several medical examinations over a period of three years prior to plaintiff’s alleged injury are in the record, and none of these shows that he had a hernia. He was not examined when he went to work for the defendant lumber company. There is a report of an examination made by Dr. George February 25, 1943, on which the notation is made “Slight impulse on coughing.” There is a zero after the question as to whether plaintiff had a hernia. Several examinations were made of plaintiff after this examination by Dr. George, and in none of them is there any indication of a hernia. While plaintiff might have had what some doctors call a potential hernia at the time Dr. George examined him, it is clear that he did not have the complete hernia that he had when Doctors McClendon and Thames examined him in August, 1946.

In view of the evidence and circumstances recited above, we are not in a position to say that the trial judge was in error when he concluded that plaintiff sustained the hernia while working for the defendant. The trial judge saw and heard the witnesses and was in a better position than we are to evaluate their testimony.

After the plaintiff had concluded his evidence, counsel for defendant filed an exception of no cause or right of action, based on the ground that the petition did not allege that the defendant was not paying, and would not pay compensation. The trial judge withheld his ruling on the exception, but never specifically passed on it, so far as the record shows. However, since he rendered judgment in favor of plaintiff, he thereby overruled the exception.

We do not think there is any merit in the exception. In his petition, plaintiff alleges that he asked defendant if he was to be paid any compensation, and was given a negative answer. He also alleges that he made demand on the defendant for compensation through his attorney to no avail. The defendant filed an answer denying liability for compensation. These allegations taken in connection with the denials in defendant’s answer are sufficient to show a dispute between the parties and that no compensation has been or is being paid.

The law does not permit an allowance of eight per cent per annum interest on past due compensation payments, but only allows the legal rate of five per cent per annum. The judgment will have to be amended accordingly.

For the reasons assigned, the judgment appealed from is amended by reducing the rate of interest on the amounts past due from eight per cent per annum to the rate of five per cent per annum, and as thus amended, the- judgment is affirmed.


author: LE BLANC, Judge.

text:
    GULF STATES FINANCE CORPORATION v. STRICKLAND et al.
    No. 2923.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    K. K. Kennedy, of Baton Rouge, for appellants.
    Stewart & Taylor, of Baton Rouge, for appellee.
   LE BLANC, Judge.

This proceeding began as a suit on a. promissory note for the sum of $258.47 secured by a chattel mortgage on certain* household effects consisting of a gas stove, two gas heaters, a shot gun and bedroom furniture.

In its petition plaintiff alleges that it is-the holder of such a note, dated January 28, 1946, drawn and signed by Woodrow Strickland and Mrs. W. R. Strickland, to-the order of bearer, in the principal sum of $273.47, payable in ten consecutive monthly installments and bearing interest at the rate of 3½% per month on any unpaid principal balance not in excess of $150, and at the rate of 2½% per month on any unpaid principal balance in excess of $150.

The transaction was one governed by the Small Loan Law of the State of Louisiana, Act No. 94 of 1942, under which plaintiff alleges it has a license to operate.

After setting out its ownership of the note and that the same is secured by a chattel mortgage, copy of which is annexed to the petition, and that nothing on the said note has been paid except the sum of $15, and after also having made the necessary allegation therefor, plaintiff obtained an order for a writ of sequestration under which the property mortgaged was seized by the Sheriff of East Baton Rouge Parish. Judgment is prayed for in the sum of $258.-47 with interest as set out above together with 20% of the total amount due as attorney’s fees and with recognition of petitioner’s special mortgage, lien and privilege on the property seized.

The defendants filed an exception of no right of action and of no cause of action which was referred to the merits and they then filed their answer in which they deny any indebtedness due by them to the plaintiff. They admit that plaintiff is the holder of the note described in its petition but aver affirmatively that it was paid in full by them on February 15, 1946, and that they have in their possession a receipt in the sum of $273.47 signed by M. May, a representative and agent of the plaintiff and that same is marked “paid in full.” Assuming then the position of plaintiffs in recon-vention they aver that the writ of sequestra-don was wrongfully obtained because of prior payment of the note sued on and that by reason of the illegal and improvident issuance of the said writ and the seizure of their property they are entitled to recover damages in the sum of $1500 for humiliation and mortification and for injury done to their reputations and standing in the community.

After trial of’the case in the court below there was judgment in favor of the plaintiff for the amount demanded with recognition of the lien and privilege on the property seized and sequestered and ordering the same to be sold, with appraisement, to pay the claim of the plaintiff or so much thereof as may be necessary with which to do so. The defendants have appealed.

We learn from the written opinion filed by the district judge that the exception of no cause and no right of action was based on an alleged violation of the Small Loan Law by failure of the plaintiff to have issued a receipt for the payment of $15 alleged by it in its petition and also of certain other requirements of the act. For that reason it is urged that the obligation sued on is null and void. The trial judge disposed of the exception by referring to the Small Loan Law itself in which it is provided that the only violation which can cause a loan to become null and void, is the one which prohibits the collection of charges in excess of those permitted by the act. For any other violation of any of the provisions of the act the lender stands to have his license forfeited by the State Bank Commissioner. The cases of Unity Plan Finance Co., Inc. v. Green et al., 179 La. 1070, 155 So. 900, and Morris Plan Bank v. Schmidt et al., La.App., 164 So. 270, appear to support this ruling.

On the merits we find that the case resolves itself into a question of fact and the circumstances surrounding a certain receipt which the defendants produced in support of their affirmative plea of payment.

In presenting its case plaintiff merely offered the note and the other documents in connection therewith, the proof of signature by the defendant, Woodrow Strickland, the alleged payment of $15 on account and then rested.

In presenting the case for the defendants, the first offer made was the receipt which they rely upon under the plea of payment. The testimony was to the effect that this receipt had been given by an employee of the plaintiff in payment of the note sued on. In order to rebut the plea and the testimony in connection with the receipt, plaintiff then offered testimony to explain how the receipt was given and to show that it was in payment of an entirely different and prior indebtedness to the one sued on. This testimony was strenuously objected to by counsel for defendants on the ground that it was inadmissible under the pleadings. The court permitted the introduction of such proof and counsel still maintains that the objection was good and that it had the effect of restricting the issues to those that were confined within the pleadings themselves, thus forestalling any enlargement.

We believe that the trial judge properly permitted this testimony in explanation of the receipt introduced by the defendants on which they rest entirely their plea of payment. Under our system of pleading a plaintiff is not called upon to answer an affirmative plea such as the one that is made in this case. Had that been necessary it might be that, in the absence of an answer to the plea based on the receipt, the objection would have been good. The matter came up on the defendants’ own offer and certainly it would be unfair not to permit the plaintiff to explain and rebut the plea if it had some testimony with which to do so. In permitting plaintiff, to offer that kind of proof the court found that it was sufficient to rebut the proof offered by defendants and that is why it rendered judgment in favor of the plaintiff rejecting their plea.

The proof tends to show that in a prior transaction between the parties, the defendants had borrowed the sum of $804.75 from the plaintiff and secured their note covering the loan with a chattel mortgage on an automobile and certain household effects. That loan, being for an‘ amount in excess of $300, did not come under the provisions of the Small Loan Law. Some time after-wards they sold the mortgaged car for the sum of $600 which amount was applied to the $804.75 note, except the sum of $150 which was paid to another finance company which held a prior mortgage and lien. There was left a balance of $273.47 due by the defendants for which a new transaction was entered into culminating in their executing the note sued on herein and securing same by the chattel mortgage on the property seized under the writ of sequestration.

Under its system of financing, plaintiff carried loans of more than $300 on their records as discount loans using the symbol “D” in referring to them. In making loans of $300 and less it was to their advantage to carry them as loans permitted under the Small Loan Law because of the greater rate of interest which could he charged. These were carried on their records under the symbol “SL.” It was no doubt to their advantage, after the defendant’s original loan had been reduced below the sum of $300 for plaintiff to make an entirely new and separate transaction and, acting under the provisions of the Small Loan Law, this is what they did.

The note of $273.47 is dated January 28, 1946, which is also the date of the chattel mortgage. The receipt produced by the defendants bears the date marked “2/15.” Evidently there was some alteration in the date because the figure “5” appears clearly to have been written or transposed over some other figure. Plaintiff’s witnesses claim that it was originally dated “2/12” and that as the receipt was never in its possession after it was signed, the alteration was evidently made by someone else. The claim that the real date of the receipt is February 12th is based on the fact that it was on that day that a check was given by them, payable to the defendant W. R. Strickland and plaintiff, jointly, in order to' liquidate and clear out the old loan so that the new one could be substituted in its stead. Defendants on the other hand contend that the receipt bears the proper date on which Mrs. Strickland says she went to the office of plaintiff’s company and paid them the exact amount of $273.47 in United States currency. They contend therefore that it could not have been given to clear out the old loan as the note was signed by them on January 28th and it was not until February 15th that this payment was made in cash. Plaintiff however, through its witnesses, explains the discrepancy between the two dates by showing that on January 28, 1946 Mrs. Strickland was not present to sign the note and chattel mortgage and that it was not until February 12, 1946 that the transaction was completed in that manner, the check given to clear out the old account and the receipt given to transfer the transaction from one under the symbol “D” to one under the symbol “SL.”

The circumstances seem to support the plaintiff’s version of the whole transaction. For instance, it is observed that the note and the chattel mortgage each bear a cross mark, evidently placed there for the purpose of indicating to Mrs. Strickland where she was to sign. The check was issued, as testified to by witnesses for the plaintiff in order to clear out the old loan and, as it is dated February 12, 1946, that tends to indicate that the receipt was given on that same day and the figure “5” is undoubtedly an alteration. The receipt is on a regular form prepared by the plaintiff with different columns to indicate the date, the rate of interest, the principal, the balance and the form of transaction. On this receipt there is no interest charge shown, the principal is exactly the amount of the balance that was due on that date on the old loan and for which the new note was given, and the transaction is referred to as “D-577.” Mrs. Myrtle May, the person who issued the receipt, explains the transaction just as we have outlined it and against all of this proof and the circumstances surrounding it we have only the testimony of the defendants to the effect that the receipt was given for the payment of cash in currency by Mrs. Strickland to Mrs. May, all of which is positively disputed by Mrs. May.

Mrs. Strickland testified that the money with which they paid the $273 came from an accumulation of her earnings as a nurse helper over a period of more than eighteen months and that even after making the payment she had $30 left. If they had $30 more than enough to pay the balance they owed on February 15, 1946, it is reasonable to assume that they had a sufficient amount saved up on January 28, 1946, with which to pay all they owed on that day and if they did, it is indeed difficult for us to understand why they went through all the trouble and expense of giving a new note and chattel mortgage which they now claim they paid in full less than three weeks after they were executed.

In addition to all this, Mrs. May testified that the new loan, which is the subject of the note sued on, was carried on their records under the symbol “SL-533” whereas the transaction involving the old loan which was refinanced by the new note bore the identification number “D-577” which is the exact identification given on the receipt by which the old transaction was closed out.

It strikes us that we are presented principally with a question of the credibility of the testimony for the defense and whilst the district judge does not state in his written reasons that he did not believe the defendants when they maintained that they had paid this note in full in cash, the inference is clear that he did not. Certainly against all the other proof and circumstances found in the record which favors the plaintiff we are not prepared to say that he manifestly erred and for the reasons stated is is ordered that the judgment appealed from be and the same is hereby affirmed.


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    CASCIO v. STANDARD OIL CO. OF NEW JERSEY.
    No. 2918.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Dec. 30, 1947.
    Writ of Certiorari Denied Feb. 16, 1948.
    Durrett & Hardin, of Baton Rouge, for appellant.
    Cecil Morgan, A. M. Curtis, and Wilson B. Holcombe, all of Baton Rouge, for appellee.
   OTT, Judge.

The suit is to recover compensation at the rate of $20 per week for a period of 400 weeks, plus medical expenses of $500, on account of an injury received by the plaintiff on August 26, 1944, which injury is alleged to have caused total and permanent disability. Plaintiff alleged in his petition that while on his way to work and on defendant’s premises, he stumbled and fell on a board walk; that in the fall he strained himself and developed incomplete bi-lateral herniae. There is only one issue in the case, and that is whether or not plaintiff sustained the herniae in the course of his employment with the defendant company. The trial judge found that plaintiff had failed to prove with the required legal certainty that he sustained the herniae in the course of his employment and dismissed his suit. This appeal is from that judgment of dismissal.

Plaintiff testified that while he was going to work just before seven o’clock in the morning and while walking inside the premises of the defendant, he slipped off a walk or ramp and fell on his left hip and bruised his hip and jarred his body all over; that his hat fell off and he dropped his lunch bag. He got up, told his foreman he had gotten hurt and went on to work; that he went to the first aid station in two or three hours of his own accord and reported his injury; that there was a large bruised place on his left hip caused from the fall, and the first aid attendants gave the bruise some heat treatment for about thirty minutes, after which he went back to work. He testified that he told the attendant at the time that he hurt down in his groins, but the man there paid no attention to this complaint. He went back the next two days to the first aid station and was given the same kind of treatment. He continued to work on a painting job, but says that he had some pain in his groins when he would lift or strain while working on the job. He continued to work for the company until May, 1945, when he was let out because of inability to carry on his work. He did not know that he had the herniae until he was examined by Dr. McHugh after he was let out by the company. Dr. McHugh told him he had a herniae on both sides and advised an operation. He was operated on later and one of the herniae was corrected, but he still has a hernia on one side.

Dr. McHugh examined plaintiff shortly after he quit the defendant company, and the doctor found that plaintiff had incomplete bi-lateral herniae, as well as a condition which caused severe constipation, and the doctor performed an operation on plaintiff to relieve the constipation the latter part of August, 1945, and in October following performed an operation to repair the hernia on the left side. Of course, the doctor could not state what caused the herniae, but he did testify that plaintiff told him he thought he received the ruptures while at work for the defendant company. The doctor also stated that the herniae could have been caused by the fall when plaintiff hurt his hip or it could have been caused by straining at stool on account of the constipation.

There is no evidence to show that plaintiff gave any sign of nausea or severe pain in the inguinal regions at the time of the accident, except his own statement that he felt pain in his groins and told the first aid man about it when he went to the station two or three hours after he fell, and told him again when he went to the first aid station the next day. The first aid man denied that plaintiff made any complaint of pain in his lower sides, but only complained of the bruise in his hip for which he was treated. Plaintiff admits that he never told any one about having pain in his groins other than his wife and the first aid attendant and the latter denied that he complained of pain in that region, and his wife never testified in the case. Several men who worked with plaintiff testified that he never complained to them about any accident or pain in his side while working on the job after the accident. Some of these witnesses did hear him tell about falling and hurting his hip, but nothing was said about a rupture or pain in the side.

There was offered and filed in evidence by the defendant a medical report of plaintiff from the time he began working for the company in December, 1943, until he was let out in May, 1945. This report shows that he made complaints of some illness or minor accident several times practically every month during this entire period covering some eighteen months, and there is no mention in any part of the report of any complaint o-f pain in the inguinal regions, notwithstanding plaintiff reported about twenty times after he claims to have sustained the herniae. Moreover, there is a report of an examination made of plaintiff by Dr. Furrh in February, 1945, more than five months after he claims to have received the herniae, and this report shows that plaintiff did not have a hernia at that time.

Objection to the admission of these medical reports was made by counsel for plaintiff on the ground that the doctor who identified them did not make the entries and the entries contained hearsay matters, and for the further reason that the doctor who identified the reports and the doctor who made one of the examinations and entries had not recorded their licenses to practice in the parish. These objections were properly overruled.

The evidence shows that the entries were made in the regular course of the business and in carrying out the duties of the employees who made the entries. They were made as a part of the system and custom of defendant’s method of transacting business. See 20 Am.Jur. Section 1062, page 908. The medical report of Dr. Furrh was identified by Dr. Allen who recognized the initials placed on the report in the handwriting of Dr. Furrh who died before the case was tried. This report was made by the deceased doctor in the discharge of his professional duties and was admissible in evidence. 20 Am.Jur. p. 887, Section 1047. Moreover, subsection 4 of Section 18 of Act No. 20 of 1914, as amended by Act No. 85 of 1926, provides that the judge shall not be bound by technical rules of evidence in compensation cases, although it is further provided that all findings of fact must be based on competent evidence.

The other objection is based on the ground that these two doctors had not recorded their licenses to practice medicine in East Baton Rouge Parish as required by Section 9 of Act No. 56 of 1914, as amended by Section 6 of Act No. 54 of 1918, and therefore were prohibited from testifying as experts under the provisions of Section 17 of Act No. 56 of 1914. These doctors were not testifying as experts, and the provisions of the above mentioned acts do not apply to the testimony introduced in this case.

The courts have held in many cases that a claim for compensation may be proved by the testimony of the plaintiff alone, but his testimony must not only be reasonable and consistent, but it must also be supported by the surrounding circumstances. In this case plaintiff’s testimony is not altogether consistent and reasonable. It is difficult to understand why some one of the employees who were present when plaintiff claims to have sustained the herniae did not know more about his injury and more particularly is it strange that he never told any of his fellow-workers about having pain in his groins. The trial judge did not believe that he told the first aid man about having pain in his side when he reported the injury to his hip. We see no reason to disagree with the trial judge on this finding of fact

Learned counsel for plaintiff seem to take the position that inasmuch as plaintiff did not have a hernia when he went to work for the company and was found to have a hernia on both sides a short time after he was let out, it follows that he must have sustained the herniae in the course of his employment with the defendant. In support of this argument the two cases of Biggs v. Libbey-Owens-Ford Glass Co., Inc., et al., La.App., 170 So. 273, and Hill v. J. B. Beaird Corporation, La.App., 19 So. 2d 295, are cited. A careful reading of these cases convinces us that the testimony and actions of the employees in those cases were more consistent and reasonable than the statements and actions of the plaintiff in the present case. In both of these cases the employee worked for only a few days after the occurrence of the alleged accident which caused a hernia, and the court found that the statement of the claimant was reasonable and consistent, and there were no circumstances to render their statements improbable.

Finding no error in the judgment appealed from, the same is hereby affirmed.


author: DORE, Judge.

text:
    COLOTRA v. RAILWAY EXPRESS AGENCY, Inc.
    No. 2932.
    Court of Appeal of Louisiana. First Circuit.
    Oct 3, 1947.
    Arthur J. Finney, of Covington, for appellant.
    Lemle Moreno & Lemle, of New Orleans, and Ellis, Barranger & Suthon, of Coving-ton, for appellee.
   DORE, Judge.

In this case, the trial judge, in a well written opinion, has clearly set forth the facts and issues involved herein as follows:

“The plaintiff, Frank J. Coltora (Colo-tra), brings this suit against the defendant, Railway Express Agency, Inc., seeking the recovery of Two Hundred Ten Dollars and Eighty-one Cents ($210.81), with legal interest thereon from July 16th, until paid.
“The allegations of the petition show that the defendant Express Company received at New Lisbon, Wisconsin, a large electric neon sign, together with a crated refrigerator from one W. J. Pollard for shipment to the plaintiff, Coltora (Colo-tra) ; that the sign was packed in two boxes and was delivered to plaintiff at Coving-ton, Louisiana; that upon examination it was found that the eighteen pieces of glass neon tubing, which formed the letters of the sign, were broken. Plain.tiff further 'alleges that the defendant Company, through its own fault, gross negligence and carelessness failed to deliver the large electric neon sign in good condition to him as per their contract when it was entrusted and placed in their possession for safe delivery to him. The petition further shows itemized cost of plaintiff’s damages and amicable demand on the defendant Company, and seeks the recovery of a penalty for failure to adjust the claim within sixty days as provided by Act No. 29, 1908, of the Acts of the Legislature of the State of Louisiana.
“In answer defendant admitted that it received the shipment at New Lisbon, Wisconsin, to be delivered at Covington, Louisiana; that said delivery was made on June 29th, 1945, and further admitted that upon examination it was found that the eighteen pieces of neon tubing, which formed the letters of the sign, were broken. It denied all the remaining allegations of plaintiff’s petition and specifically denied, for want of information, that the breakage occurred while the shipment was in its possession, or alternatively occurred from a cause which rendered the defendant liable for said breakage. It is further denied by defendant that through its fault, gross negligence and carelessness that it failed to deliver the sign in good condition to plaintiff in accordance with their contract when it was entrusted and placed in its possession for safe delivery. Defendant denied any indebtedness whatsoever, and further, particularly denied that it is liable for any penalties under the provisions of Act 29, of 1908, on the ground that said Act is unconstitutional.
“On trial of the case plaintiff proved practically all of the allegations of his position except Article 7, wherein it is alleged that the defendant, through its own fault, gross neglect and carelessness, failed to deliver the sign in good condition to petitioner as per their contract when it was entrusted and placed in their possession for safe delivery. The plaintiff further failed to prove that the sign was in good condition when delivered by the consignor, Pollard, to the defendant Company at New Lisbon, Wisconsin. Plaintiff argues in brief that it was not necessary for him to prove the negligence or carelessness of the defendant Company for under the law of Louisiana the burden was on the defendant to show that the damage to the shipment was not caused by its negligence. The defendant contends that in order for this plaintiff to make out his case he must have proved that the sign was in good condition at the time it was delivered to the defendant Company, and before such a showing is made it was not incumbent upon the defendant to show anything.
“Since the shipment of the merchandise involved in this suit originated in the State of Wisconsin and was destined for and delivered in the State of Louisiana, then said shipment constituted an interstate shipment and the law of Louisiana governing the transportation of freight in intrastate commerce does not apply, but rather the provisions of the Interstate Commerce Act. See U.S.C.A. Title 49, Section 20, Paragraph 11.
“There is no question but that under the Interstate Commerce Act the delivering carrier under an interstate contract of af-freightment is liable for goods lost, or damaged in transit. The provisions of that Act oblige a carrier to deliver merchandise entrusted it for carriage in the condition in which it was received. However, where a plaintiff seeks to recover under the provisions of said Act he must make some showing at least that the goods were in good condition at the time they were received by the carrier. In the case of Bancroft v. Yazoo and M. V. Railroad Company [194 La. 115], 193 So. 481, which was a suit by consignee against delivering carrier for goods lost or damaged in transit, the Supreme Court of this State held that in order to recover it was necessary for the con-, signee to allege and prove that the carrier received the shipment in good condition, that the shipment arrived at its destination in a damaged condition, and the amount of the loss. Plaintiff in this case has proved that the goods arrived at the destination in a damaged condition and the amount of the loss, but he has failed to prove that the carrier received the shipment in good condition, and under the holding of the Bancroft case, supra, he cannot possibly recover. See, also, Arwady v. Texas and N. O. R. Co., [La.App.], 18 So.2d 339.
“In a case of this character the plaintiff must at least make out a prima facie case of liability and where he fails to prove that the goods were in good condition when delivered to the carrier, he has failed to make out such a case. See, 10 Corpus Juris, 370, Section 568, which reads as follows:
“ ‘Plaintiff has of course the burden of proving the essential elements of his cause of action, required to be set out in his complaint, by a preponderance of evidence. The burden of proof is on plaintiff to show that the loss or injury was due to the negligence of the carrier in the exceptional instances where negligence is an essential of the cause of action. But the rule is well settled that, if goods are delivered to a carrier in good condition and arrive at their destination in damaged condition, a prima facie case of liability is made out, and the carrier is then called on to prove that the damage did not arise from its negligence. This rule, however, cannot be invoked until the shipper proves both delivery to the carrier in good condition and delivery by the carrier in a damaged condition.’
“See, also, 9 American Jurisprudence, 904, Section 834, which reads as follows:
“ ‘Where the action is for injury to the property, it devolves upon the plaintiff to show that the shipment was delivered to the carrier in good order or condition.’
“Plaintiff, in brief, in support of the proposition that the burden was on the defendant to show that the damage to the shipment was not caused by the negligence, cited the following cases: Kaplan Rice Mill, Inc., v. Texas and N. O. Ry. Co. [La. App.], 26 So.2d 42; Calhoun v. American Railway Express Co., 3 La.App. 628; Bond v. Frost, 8 La.Ann. 297, and National Rice Milling Co. v. New Orleans Northeastern Ry., 132 La. 615 [61 So. 708, Ann.Cas. 1914D, 1099], The first two of these cases had to do entirely with intrastate shipments, and, of course, are controlled by the provisions of the Louisiana law, Article 2754, Revised Civil Code. I might, however, add that even in these cases, as well as the other two cases cited by counsel, the plaintiffs proved that the goods were in good condition when delivered to the carrier.
“The plaintiff has also sued for a penalty of Fifty Dollars ($50.00), for the failure to pay the claim within sixty days in accordance with the provisions of Act 29, of 1908. Since the plaintiff herein has failed to recover the amount claimed, he of course, is not entitled to recover the penalty under the provisions of Section 2, of Act 29, of 1908. Therefore, it becomes unnecessary for me to pass on the constitutionality of said Act.
“I might further add that there is no evidence in this record to show the nature of the contract entered into when the goods were received by the carrier from the shipper. There is no evidence of a receipt or Bill of Lading having been given, nor is there evidence that it was given, or lost or anything of that character. Under the circumstances it does not seem that any presumption could possibly arise that the goods were in good condition at the time they were received by the carrier.
“Accordingly for the foregoing reasons there will be judgment herein in favor of the defendant, Railway Express Agency, Inc., and against the plaintiff, Frank J. Col-tora (Colotra), rejecting the plaintiff's demands at his cost.”

A judgment was signed in accordance with the above opinion and plaintiff has appealed.

In this court, plaintiff does not complain of the finding of fact as outlined in the trial judge’s opinion and admits the only question at issue is one of law. He further admits that the law and jurisprudence applicable to these facts are those governing interstate shipments.

Plaintiff’s contention before this court is that the trial judge was in error in holding that the burden of proof was on him rather than on the defendant to show the cause of the damage to the shipment while in transit. In this, he is mistaken in that the trial judge held that the burden of proof was on him to show at least that the goods were in good condition at the time they weye received by the carrier, an essential requisite before he was entitled to recover.

We have carefully reviewed the record, the authorities cited by the litigants, those commented upon by the trial judge and the trial judge’s reason for judgment. We fully agree with the trial judge’s statement wherein he states that the Supreme Court, in the case of Bancroft v. Yazoo & M. V. Railroad Co., 194 La. 115, 193 So. 481, held “that in order to recover it was necessary for the consignee to allege and prove that the carrier received the shipment in good condition, that the shipment arrived at its destination in a damaged condition, and the amount of the loss.”

Under the facts in this case, as set out by the trial judge’s opinion, plaintiff has altogether failed to allege and prove that the carrier received the shipment in good condition, the first requisite proof to entitle him to recover. We cannot indulge in presumptions. Furthermore, as stated by the trial judge, he has also failed to file or produce the original way bill.

Plaintiff further contends that this was an “express shipment” and that the defendant had collected an extra charge as insurance cost. The express receipt filed in evidence only shows that the shipment was valued at $250 and that the value charge was 20‡, express charge, $38.24, and tax, $1.15, totalling $39.62. It does not show any insurance charge. He has not based his suit on a contract of insurance, but has based it entirely on a contract of carriage. The extra charge on account of valuation is in accord, as stated by him, with the ruling of the Interstate Commerce Commission, and not in the nature of insurance. The reason for the difference between freight and express charges is self evident. The former is generally slow while the latter is facts in delivery. We find no merit in this contention.

For these reasons, the judgment appealed from is affirmed.


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    PRESCOTT v. ROWLAND.
    No. 2919.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Leslie A. Fitch, of Baton Rouge, for appellant.
    Cecil N. Bankston, of Baton Rouge, for appellee.
   DORE, Judge.

On November 7, 1944, the plaintiff Ivy Prescott was riding on the truck of Elvis Blades as an invited guest. Blades was accompanied by another invited guest, a Mr. Schlandecker. Blades was the driver, and in the cab next to him was seated Schlan-decker, and the plaintiff Ivy Prescott was sitting back of the cab, on the flat bottom of the truck, on the right hand side, with his feet resting on the running board. They were travelling south on Baton Rouge Avenue, in the Third Ward of the Parish of East Baton Rouge, which Baton Rouge Avenue runs north and south and is composed of approximately 18 feet of asphalt by 3 feet of dirt and gravel shoulders on each side. At approximately the same time the defendant, S. M. Rowland, accompanied by his brother, L. A. Rowland, was travelling westward on Evangeline street, which street is also composed of about 17 feet of asphalt with dirt and gravel shoulders of 3 feet each and which street runs east and west, and intersects the said Baton Rouge Avenue in the suburbs of the City of Baton Rouge, in the Third Ward of East Baton Rouge Parish. At about 4:45 p.m., on the date aforesaid, on a fair and dry day, the said truck and the said automobile collided at the middle of the intersection of Baton Rouge Avenue and Evangeline Street, and as a result of the collision, the said Ivy Prescott was thrown from the truck into a ditch on the west side of Baton Rouge Avenue, some 10 feet south of the asphalt on Evangeline Street. He was knocked unconscious and was carried to The Lady of the Lake Hospital in Baton Rouge, in an ambulance, where he was treated by ■ Dr. Philip Polito and Dr. T. Jeff McHugh. His injuries consisted of a badly fractured left shoulder, which necessitated an operation, and following the operation he developed pneumonia, for which he was treated for several days and as a result of which, among other things, he had to be placed in an oxygen tent and had to receive treatments of penicillin. Also, as a result of his operation, it is shown that he lost considerable blood and had to receive blood transfusions. He stayed some three weeks in the hospital before being discharged to his home, or his brother’s home, where he spent another month before he was able to return to work, and according to his statement, after reporting to work he was unable to perform any real services due to his condition, and some four weeks later he ■ was discharged by his Company for the reason that the job in which he was engaged was completed. His employer at the time of the accident was Blaw Knox Construction-Company, and his employment was as a pipe fitter, at an hourly wage of 60⅜ per hour.

The plaintiff filed this suit to recover damages for the injuries sustained by him, and the pain and suffering caused by the injuries, as well as for loss of time from his work, loss of earning power, and medical and hospital expenses resulting from the accident and injuries. His suit is based on the contention that the accident was caused solely by the gross negligence of S. M. Rowland in entering the intersection at an excessive rate of speed after the intersection had been preempted by the Blades truck, which was coming south on a favored street; that the said Rowland car ran into and struck the truck in the center of the intersection, and, in effect, that the defendant Rowland collided with the truck on its left side because he was driving at an excessive rate of speed and was not keeping a proper lookout for traffic on Baton Rouge Avenue.

The defendant, on the other hand, contends that the collision resulted entirely as a result of the gross negligence on the part of Elvis Blades in driving his truck carelessly and at an excessive rate of speed after the intersection had been preempted by the defendant Rowland and that the defendant Rowland had come to almost a complete stop at the middle of the intersection at the time of the impact; that the said Blades side-swiped Rowland’s car as a result of his negligence in driving, and caused this collision, and as a result the plaintiff, Prescott, was thrown from the truck and sustained the injuries complained of. Defendant further, contends, in the alternative,that if it be found that he was guilty of any negligence which contributed to the accident, which he denies, then and in that event,- the plaintiff was guilty of contributory negligence barring his recovery, in that plaintiff begged and received a ride on the truck by a- person whom he did not know, and that thereupon placed himself on. a flat bottom which composed the rear of-the truck, in a dangerous position, whereon he had no means of holding on or propping-himself to guard -again'st a 'sudden jar or jolt; that moreover the said plaintiff failed-to keep any lookout and failed to request the driver of the truck to drive in a careful and prudent manner so as to prevent an accident such as this one.

After due hearing of the case, the district court came to the conclusion that the plaintiff had failed to prove that defendant Rowland was guilty of any negligence which contributed to the accident and he thereupon dismissed plaintiff’s suit. Plaintiff has appealed.

A review of the evidence shows that plaintiff’s case, in so far as liability is concerned, is based on the testimony of plaintiff himself, Mr. Schlandecker, who was riding in the cab with the driver, Blades, and a State policeman, Capt. R. M. Walker, who investigated the collision some six minutes after its occurrence. The driver of the truck, Blades, was not called as a witness for the reason that plaintiff could not obtain compulsory service on the witness.

The plaintiff Ivy Prescott testified that .he requested and obtained a ride on Blades’ truck at the gate of Blaw Knox Company offices, and that they thereupon proceeded first on the Scenic Highway and later on Baton Rouge Avenue (for the purpose of avoiding traffic), at a rate of speed of approximately 25 miles per hour. Pie states that he was seated back of the cab on the right hand side and that he was facing south with his feet on the running board, and that as they approached the intersection of Evangeline Street they slowed down somewhat and that as they reached the middle thereof, or possibly a little towards the south side, they were hit by the Rowland car and that he was thereupon jarred or jolted off the truck and rolled into the ditch on the west side of Baton Rouge Avenue, several feet south of Evangeline Street; that he was knocked out and did not come to until some half hour later. He states that he did not see the on-coming car for the reason that he was not looking in that direction, but he maintains that Blades was driving carefully, and that Blades had intercepted the intersection when the crash occurred. Thereafter, due to his unconscious condition, he knows nothing about the accident.

The witness Schlandecker corroborates the testimony of plaintiff Prescott, and further testifies that Rowland, defendant, was driving westerly at an excessive rate of speed, on Evangeline Street, and that at the last minute he applied his brakes, but could not prevent running into the left side of the truck; that the impact was on the rear of the left front fender of the truck, and on the left running board thereof. He states further that the truck continued to go in a southerly direction and then turned east and came to rest against a chinaberry tree on a lot on the east side of Baton Rouge Avenue, some 15 feet south of Evangeline Street, and that the Rowland car came to rest at about the middle of the intersection, slightly to the south of the center line of Evangeline Street.

Captain R. M. Walker stated that he is a State policeman and that he investigated the accident shortly after its occurrence and ascertained that it happened at 4:45 p.m., that the Dodge driven by Mr. Rowland headed west on Evangeline Street, and the truck driven by Mr. Blades was going south on Baton Rouge Avenue; that the left side of the truck, right about at the door, had been hit by the Dodge and that all the front end of the Dodge was smashed. He states further that there were no stop signs at the intersection. He further testifies that the truck was up against a tree in the front yard about 60 or 80 feet from where the impact had happened, and the Dodge car was in the center of the intersection; that the skid marks and tire marks of both vehicles show that they were both in the middle of the streets that they were travelling, and the skid marks made by the Dodge were approximately 15 feet. He further testifies that from the physical evidence he witnessed it is clear that the point of contact between the two vehicles was the front end of the Dodge which was demolished, and the left side of the truck, which was hit; that the Dodge stopped right at the point of impact in the center of the intersection; that there was nothing to obstruct the view on Evangeline Street, north from Baton Rouge Avenue, except a house which sat some 35 feet on the east side of Baton Rouge Avenue. The sum and substance of his testimony is to the effect that the Dodge automobile, from the physical evidence, smashed its front end into the left side of the truck.

The defendant and his brother, L. A. Rowland, testified that as they approached Baton Rouge Avenue going west, they looked to the north or right hand side for on-coming traffic going south on Baton Rouge Avenue. L. A. Rowland states that he could see a distance of approximately 100 feet and that nothing was in sight. The defendant states that in his position as they came within one and one-half car lengths from the intersection he could see a distance of 50 to 60 feet and that nothing was in sight. They both testify that they were following a Mr. Clarence Rogers, a real estate man, who was going to show a piece of property to defendant Rowland, said property being located on the Scenic Highway west of Baton Rouge Avenue; that as said Rogers approached the intersection he slowed down and that consequently they were forced to slow down and stop at about one and one-half car lengths from the intersection; that the defendant Rowland shifted his car to first gear and started to enter the intersection, and then shifted to second gear, and as he had entered the intersection about two feet and was travelling at about 2 to 5 miles per hour, he and his brother perceived the truck coming south on Baton Rouge Avenue at a rapid rate of speed, and the defendant Rowland thereupon immediately applied his brakes in order to avoid being run into, but that his car skidded some 12 or IS feet into the middle of the intersection and that Blades never slowed down, but continued to travel rapidly and side-swiped him and thereby tore his right and left fenders and his grill, and knocked off his bumper, which was not in any way bent. The defendant estimates the distance at which he perceived Blades’ truck at about 100 feet, more or less, and his brother, L. A. Rowland, estimates it at about ISO feet. These two witnesses agree substantially with the witnesses for plaintiff as to the respective positions of the vehicles after the collision.

The defendant introduced the testimony of Clarence E. Rogers, who states that he was on his way to show property to the defendant; that as he approached the intersection he did not come to a full stop, but slowed down, and perceiving no traffic one way or the other, continued across; that the defendant was following him at a distance of not more than SO feet, and that when he heard the crash, he parked his car on the north side of Evangeline Street and came over to the scene of the accident. It might be noted here that the State policeman, Mr. Walker, testified that the only witnesses he saw at the scene, aside from the drivers, were Mr. L. Rowland and Mr. Schlandecker.

Defendants also introduced the testimony of Mr. Alvin Doyle, Jr., the mechanic who fixed Rowland’s automobile. He stated that he had to put 2 new fenders on the Rowland car and had to change the grill and also that the front bumper had been knocked off, but was in no manner bent. He gives as his opinion that the damage to the Rowland car was caused by a sideswipe, as testified to by the Rowland brothers.

On the question of liability, it is apparent that the trial judge accepted the version of defendant as true; but in his written opinion, he fails to explain, at least one point, which to us appears important, and that is how did the Rowland car leave visible tire marks of about IS feet if he was really travelling at a rate of only 2 to 5 miles per hour? It is probable the truck was traversing the intersection at a faster rate than 25 miles per hour, but it seems to us that, in view of these skid marks, the defendant was entering the intersection at a rather fast rate of speed and upon perceiving the truck, suddenly applied his brakes. The evidence clearly shows that the only obstruction at that corner was a house which sat back at a distance estimated by the witnesses at from 35 to 50 feet from the east edge of Baton Rouge Avenue, so that traffic approaching from either side could be perceived at a considerable distance. The evidence also shows that prior to the day of the accident there had been stop signs on Evangeline Street showing that Baton Rouge Avenue was a favored street; but that the stop signs had been destroyed prior to the accident, and all that remained of them were the posts, and there is no clear showing that the defendant knew about these signs, since he denied having travelled on that street for some considerable time before then. In any event, as brought out by the trial judge, Blades did have the right of way, since he was travelling to the right of the defendant Rowland, and certainly, unless we can find that the defendant had already preempted the intersection, it is clear that he was guilty of negligence which contributed to the accident, and we have serious doubts, as stated above, that his story is true as to having skidded the 15 feet while traveling at 2 to 5 miles per hour.

From our review of the evidence, as set forth hereinabove, we are satisfied that the defendant Rowland was guilty of negligence which contributed to the accident in the following particulars, viz.: in not keeping a proper lookout before entering the intersection, in not having his car under proper control, and in entering the intersection at a rate of speed not in conformity with safe driving. We also feel that the defendant Blades may have been traversing the intersection at too rapid a rate of speed and was therefore also guilty of negligence which contributed to the accident, but we cannot find any evidence showing that such negligence by Blades can be imputed to the plaintiff herein, who was riding as an invited guest on the rear of the truck and who was not in any position to exercise control of the Blades truck.

It is our conclusion that the truck and the car reached the intersection at about the same time and that they both were travel-ling at a greater rate of speed than testified by the parties. This conclusion is borne out particularly by Police Officer Walker’s report of the possible speed of the vehicles by the damage done to both cars, by the fact that the Dodge car skidded some 15 feet before smashing into the truck and the further fact that the truck continued some 50 or 60 feet after the collision before coming to rest on a tree.

On the quantum of damages, it is clearly shown that the medical expenses sustained by the plaintiff were $250 to Drs. Polito and McHugh; $94.50 to the nurse, Miss N. Sharp; $60 to Dr. Williams for X-rays; $10.50 to the nurse E. M. Las-seigne; $21 to the nurse Lela Holmes, making a total of $436. It is further clearly shown that prior to the accident plaintiff was a pipefitter helper and was earning 60‡ per hour, and that since the accident has remained in a condition which prevents him from performing that work, and he would be considered totally and permanently disabled under the Workmen’s Compensation Act although he is able to do some slight manual labor. At the time of the trial, April, 1946, he had reached the age of 53 years. At that time Dr. Polito testified that he had a 60% disability, and at that time plaintiff testified that since the accident he had been unable to earn any money, except about $100 for odd jobs. It is also clearly shown by the evidence that the injuries sustained by the plaintiff were very painful, and that the resulting pneumonia also caused him considerable suffering. An award of $2,500 for physical pains and sufferings, etc., will do substantial justice in this case.

For the reasons set forth, the judgment below is reversed and set aside and judgment is herein granted in favor of plaintiff and against defendant in the total sum of $2,936 ($2,500 being .for pain and suffering and injuries sustained, and $436 for medical expenses), with interest thereon at the rate of five per cent, per annum from judical demand until paid, and for all costs in both courts.


author: OTT, Judge. DORE, Judge

text:
    ARNOLD et ux. v. ILLINOIS CENT. R. CO.
    No. 2928.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Dec. 30,1947.
    See 33 So.2d 98.

      Lemle Moreno & Lemle, of New Orleans, and Carroll Buck, of Amite, for appellant.
    Plauche & Plauche, of Lake Charles, and Homer Stephenson, of Orange, Tex., for ap-pellees.
    Hamlet D. May, of Baton Rouge, amicus curiae for appellees.
   OTT, Judge.

The plaintiffs, Hugh Arnold and his wife Mrs. Mildred Arnold, brought this suit against the Illinois Central Railroad Company for damages in the total sum of $131,741.90. They filed a joint petition but claimed separate items of damage, the husband claiming $86,741.90 and the wife claiming the sum of $45,000. The trial resulted in a judgment in favor of Mr. Arnold for the sum of $18,719.40 and in favor of his wife in the sum of $10,000. The defendant appealed from the judgment.

The plaintiffs alleged in their joint petition that they were driving north on U. S. Highway No. 51, just outside of Hammond, between 5:15 and 5:30 o’clock A.M., April 19, 1942, when the automobile in which they were riding and which was being driven by Hugh Arnold ran into the side of an oil tank car stopped on the track of the railroad which crosses the said Highway at right angles, the railroad running from Baton Rouge to Hammond; that the said tank car was a part of a freight train which was stopped, blocking said highway; that it was still dark and the weather was so foggy that plaintiff Arnold could not see the tank car across the highway on account of it's color, the condition of the road, and the poor visibility because of the darkness and fog; that plaintiff Hugh Arnold had his lights dimmed in order to deflect the rays of his headlights more directly upon the pavement in front of him. The petition alleges that the railroad was guilty of negligence in leaving said train parked across the much traveled highway for several minutes; in failing to have adequate warning signals, lights and other devices to notify motorists of the crossing; in failing to station a flagman at the crossing to give warning to oncoming traffic; in failing to sound the whistle and bell as required by law, and in failing to have a sufficient train crew in charge of the train so as to give proper warning, particularly in view of the condition of the weather, time of day, and conditions then prevailing.

The railroad denied any negligence on its part and in the alternative made a special plea of contributory negligence against both plaintiffs in that they were negligent in failing to see the car across the track and in failing to take the necessary precautions to keep from striking the car; that Hugh Arnold was driving at an excessive speed under the circumstances, and did not stop, look and listen before crossing the track.

During the trial of the case the defendant attempted to prove that the Illinois Central Company did not operate this train and was not liable for the alleged negligence of the trainmen. However, this defense has been abandoned, and it is not necessary to discuss it any further.

There are four principal questions involved in the case: First, was the railroad guilty of negligence; second, if so, was Hugh Arnold guilty of such contributory negligence as to bar his recovery; third, was Mrs. Arnold guilty of any independent negligence so as to bar her recovery; and, fourth, if either plaintiff is entitled to recover, was the award correct ? These questions will be discussed in the order named.

Negligence, vel non, of the Railroad.

It is not denied that on the morning of the accident the railroad parked a train of cars across U. S. Highway No. 51, this train consisting of some 86 cars, the oil tank car across the highway being near the center of the train. The train was going into Hammond from Baton Rouge, and the engineer pulled the train across the highway in order that the conductor who was riding in the caboose could walk to a telephone booth some 200 feet west of the crossing and get instructions relative to bringing the train into Hammond. The conductor and the flagman got out of the caboose and walked toward the crossing on the north side of the train. After the train had stopped for a period estimated all the way from one minute to ten minutes, the engineer backed up the train so that the engine was just west of the crossing. It was while the train was stopped on the crossing (whether for one minute or ten minutes) that the Arnold car ran into the side of the tank car across the highway, injuring both Mr. and Mrs. Arnold rather severely, and almost demolishing the Chevrolet car in which they were riding. The fourteen year old daughter of plaintiffs was in the Arnold car but seems to have escaped unhurt.

It is conceded that there were no mechanical lights at the crossing, nor was there any flagman with a warning signal to protect the crossing. There were five trainmen on the train, the engineer, fireman and brakeman were in the cab of the engine, and the conductor and flagman were in the caboose. So that at the time the train was stopped across the highway, there were no trainmen within 40 cars of the crossing— some 1500 feet. Of course, the trainmen did not see the Arnold car when it crashed into the train, but the conductor and flagman had walked up part of the way to the telephone booth from the caboose, and reached the scene of the accident soon after it occurred.

The usual “Louisiana Law Stop” sign was placed on both approaches to the crossing, the one on the south being something over 40 feet from the crossing, and placed some six or seven feet to the east of the pavement. There was also a highway marker or reflector with the letters “R.R.” some 150 yards south of the crossing, and, while this point is disputed, there is some evidence to the effect that a cross was painted on the pavement with the letters “R.R.” between the arms of the cross. The principal question to determine is whether or not on account of the darkness and fog it was the duty of the railroad to take any extra precautions to protect traffic on the highway, other than the signs above mentioned.

The evidence shows that there was a heavy fog in the area of this crossing at the time of the accident, but the density of the fog and the extent of visibility varies in the testimony. Some of the witnesses testified that the fog was so dense that a person could see only a few feet, while others stated that, while there was a fog, it was not unusually heavy and visibility was not seriously impaired. The preponderance of the evidence shows that the darkness and fog seriously affected visibility and rendered driving ari automobile rather hazardous.

In the case of Plummer v. Gulf, M. & N. R. Co. et al., La.App., 153 So. 322, 323, .the law as to the duty of a railroad in blocking a crossing was stated as follows:

“ ‘The general rule of law on this point is that unless there are some unusual conditions of danger it is not necessary for railroads to station a flagman or other person with a lantern at the approach of a crossing to warn drivers of automobiles of the blocking of such crossing by railroad cars when such cars are placed across the highway on a switch or track in the usual and legitimate process of switching and operating the business of the railroad.’ ”

There were no unusual circumstances found to exist in that case which required the railroad to station a flagman at the crossing, or other signals, to warn approaching motorists. The same rule was announced and followed in the case of Domite v. Thompson et al., La.App., 9 So.2d 55, and in that case the court found as a fact that there was not sufficient fog or interference with visibility to make an exception to the rule that railroad cars across a highway are sufficient notice of the blocking of the highway to a motorist with proper lights and driving in a proper manner.

Counsel for plaintiff cite and largely rely on the case of Squyres v. Baldwin et al., 191 La. 249, 185 So. 14. In that case the Supreme Court found that, owing to a heavy snow and poor visibility at a crossing on a main highway, it was the duty of the railroad to take extra precautions to protect traffic on the highway when blocking the highway in switching gravel cars over the crossing. It was shown in that case that the driver of the car could see only 25 or 30 feet ahead of him. His headlights were in good condition. The court said in that case: “The low, black gravel cars were rendered a dull grey color in appearance, by reason of the snow which blanketed them, and blended perfectly with the dull, lead-ened background.”

The evidence in the present case shows that the fog was so dense that the driver of a car could not, see more than 35 or 40 feet, and if we are to apply the reasoning employed in the Squyres case, it was the duty of the railroad to protect the crossing by having a flagman stationed there with a lantern to warn approaching traffic while the crossing was being blocked by the train, or at least provide some warning signal more than the signs which it was difficult for a motorist to see. The railroad employees knew this crossing to be used frequently as it is on one of the main thoroughfares of the State. They also knew that the fog was heavy and visibility poor, but seem to have remained content to stay in their respective places in the engine and caboose while their train was blocking the highway a quarter of a mile away for at least a few minutes — probably two or three minutes — during which time they should have reasonably expected several automobiles and trucks to approach the crossing.

The preponderance of the evidence indicates that the bell was rung and the whistle blown, but this question is not very im--portant. If the whistle was not blown and the bell was not rung, this could hardly have had anything to do with the situation as the engine was a quarter of a mile east of the crossing when the accident happened, and at the time the engine crossed the highway, plaintiffs were too far away from the crossing to have been affected by the blowing of the whistle or the ringing of the bell.

Contributory Negligence of Hugh Arnold.

While we are of the opinion that the railroad was guilty of negligence in not properly protecting the crossing, we are also of the opinion that Hugh Arnold was guilty of such contributory negligence as to bar his recovery. Arnold left Orange, Texas, around midnight with his wife and child to attend the funeral of his grandfather at Brookhaven, Mississippi. He says he traveled 60 to 70 miles per hour from Orange to Baton Rouge as there was no fog and the_ night was clear; that he reached Baton Rouge around three o’clock in the morning and stopped for ten or fifteen minutes in Baton Rouge at the home of his sister-in-law. He left Baton Rouge a little after three o’clock, and when six or seven miles out from Baton Rouge on the Hammond road, he struck the fog which was heavy at places and at other places it be-became less dense. He drove from 13 to 35 miles per hour depending on the thickness of the fog, and after stopping a few minutes at Albany, he reached the junction of U. S. Highway 51 just outside of Hammopd between 5 and 5 :30 o’clock in the morning. He says it was necessary to put on his dimmers in order to see the pavement ahead; that he could see 30 to 40 feet; that he was going about 22 miles per hour; that he was within 9 to 12 feet of the train before he saw it, and it looked like a ditch across the pavement; that he applied his brakes, and tried to stop, but crashed into the tank car. He says his brakes and lights were in good order.

A few weeks after the accident, Arnold signed a written statement prepared by the claim agent of the railroad in which he said he was going 30 to 35 miles per hour at the time of the accident, but in his testimony he endeavored to explain this statement by saying that he told the claim agent that he traveled 13 to 35 miles per hour from Baton Rouge to the scene of the accident. The car driven by Arnold was seriously damaged by the impact with the train, indicating that it must have been going at a good rate of speed when it struck the train. There is evidence to show that when the train began backing up after the impact, the train pulled or struck the car and caused some of the damage to the car. But even allowing for some further damage caused by the train after the impact, the damage to the car indicates that most of it was caused by the impact. While plaintiff Arnold may not have been going 30 to 35 miles per hour, the evidence justifies the conclusion that he was going more than 22 miles per hour at the time of the accident.

A witness, Provetore, testified that he was driving north in a truck on the highway at about 20 miles per hour when the Arnold car passed him about two blocks from the crossing going 30 to 35 miles per hour. The witness heard the crash after Arnold passed. He says that he could see the train across the track 30 to 35 feet ahead of him.

Arnold admits that he could see the pavement 30 to 40 feet ahead of him and that he could stop his car within a car’s length (17 to 18 feet) going 22 miles per hour. Yet he did not see the tank car until he was right on it, and crashed into it with considerable force. It is true that the road makes a very slight rise just before reaching the crossing, and the lights of the automobile would be deflected somewhat under the tank car, but we are unable to understand why Arnold could not see as large an object as a tank car across the road if he could see the pavement 30 to 40 feet ahead of him. If he was going no faster than he claims and could stop his car in 17 or 18 feet, we see no reason why he should not have been able to avoid the accident. He was traveling at too fast a speed under the circumstances and was not keeping a proper lookout.

Contributory Negligence of Mrs. Arnold.

Mrs. Arnold was riding on the front seat by the side of her husband and says that she was watching the road. She did not see the train before the car struck it. The care required of a guest is not the same as that of the driver of the car. The driver has control of the car, and is in a better position to observe the' road, regulate the speed, and judge the actions and movements of the car he is driving. Had Mrs. Arnold seen the train 35 to 40 feet before the car struck it, she would have had a right to assume that her husband saw it also and that he would take the necessary steps to avoid colliding with it. She was under no duty to warn him until it was evident to her that he was not aware of the danger, and it would have been too late for her warning to be effective had she seen the train 35 or 40 feet ahead. See Delaune v. Breaux, 174 La. 43, 139 So. 753, and Churchill v. Texas & P. R. Co., 151 La. 726, 92 So. 314.

While Mrs. Arnold says she was looking ahead for cattle which might be on the road, she did not see the train across the track. She was not in a position to judge the speed of the car, the visibility from the driver’s seat, nor the distance required to stop, to the same extent as could be her husband who was driving the car and on whom rested the duty of keeping a close lookout from his seat, as well as keeping constantly in mind his speed, and being prepared at all times to stop his car. Finding that Mrs. Arnold was not guilty of such contributory negligence as to bar her recovery, it follows that she is entitled to recover for her injuries, and we now proceed to the last question of whether or not the amount awarded her by the trial court is correct.

Mrs. Arnold received rather severe cuts and lacerations on her face and these wounds bled profusely. Her left leg was bruised and twisted, and she was confined to her bed for some two weeks, after which she used crutches for four or five weeks. There were left some scars on her face which have some disfiguring effects. It is claimed that the accident caused some disturbance to her menstruation. There is some dispute among the medical opinions as to whether or not the accident caused the menstrual disturbance, however, as it appears that she had no disturbances before the accident but thereafter her men-struations became more scanty and irregular, it is reasonable to assume that the accident did affect her in this respect.

While Mrs. Arnold claims that her left leg is crooked between the knee and ankle and swells at times and gives her some pain, we think the preponderance of the medical evidence shows that she does not suffer any seriously permanent injuries. We think an award of five thousand dollars will adequately compensate her for her injuries. For the reasons assigned, it is ordered that the judgment in favor of plaintiff Hugh Arnold against the defendant be and the same is hereby annulled and reversed, and it is now ordered that same is hereby annulled and reversed, and it is now ordered that the demands of said Hugh Arnold be rejected and his suit dismissed; that the judgment in favor of Mrs. Mildred Arnold against the defendant be and the same is hereby amended by reducing the award in her favor from the sum of ten thousand dollars to the sum of five thousand dollars, and as thus amended, the judgment in her favor is affirmed. It is further ordered that plaintiff, Hugh Arnold, pay one-half the costs of the suit, and the defendant, Illinois Central Railroad Company, pay the other half of the cost.

DORE, Judge

(concurring in part and dissenting in part).

I concur with the majority opinion in so far as the finding of negligence on the part of the railroad company is concerned and in so far as the absence of negligence on the part of Mrs. Arnold is concerned. I further agree with the majority opinion that the award to Mrs. Arnold in the sum of $5,000 is reasonable.

However, I disagree with the majority opinion to the effect that plaintiff Hugh Arnold was guilty of negligence which contributed to this accident. I am not unmindful.of the general rule that a motorist is_required to drive slowly enough and to have his car under such control as to be able to stop within the distance illuminated by his headlights. Nevertheless, there are exceptions to this general rule depending on the particular circumstances existing in the particular case. In this case it is clearly shown by the evidence that the obstruction at the grade crossing whereon the accident occurred consisted of an oil tank car which was difficult to see at night because of its size,, shape, position and the fact that its surface did not reflect light from the driver’s headlights, and especially so on the night of this accident, which, in addition to being a dark night, was an extremely foggy night. Moreover, the obstruction was one which the motorist could not be reasonably expected to anticipate, for the reason that he was not familiar with the road on which he was travelling, and with the fact that a railroad traversed said road, and for the further reason that in view of the weather conditions and the darkness of the night it was impossible for him to see any warning signs of a railroad crossing, regardless of the rate of speed at which he was travelling. The only ground for holding this plaintiff guilty of contributory negligence under those circumstances would be that he was travelling at an excessive rate of speed. The testimony shows that he was travelling at a speed of from 13 to 35 miles per hour, and the majority opinion reaches the conclusion that he was travelling at an excessive speed because of the damage which was done to the front of his car as a result of the collision with the railroad tank car. I cannot agree with the theory of the majority opinion, because I feel that the collision and the resulting damage to those plaintiffs would have occurred whether the speed of the automobile was 13 miles per hour or was 35 miles per hour.

It is my opinion that this case falls within the exception to the general rule as set forth in Squyres v. Baldwin et al., La.App., 181 So. 584, 585 and 191 La. 249, 185 So. 14. I therefore respectfully dissent in so far as plaintiff Hugh Arnold is concerned.