author: REDMANN, Judge. BOUTALL, Judge,

text:
    Richard Price YATES, SR., et al. v. John BROWN et al.
    No. 7901.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 3, 1977.

      Wendell H. Gauthier, Robert M. Murphy, Gauthier & Murphy, New Orleans, for plaintiffs-appellants.
    John J. Weigel, John G. Gomila, Jr., Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

A father appeals from the dismissal on jury verdict of his suit for damages from the tragic death of his seven-year-old son. The issues are largely of inferences to be drawn from the evidence. We affirm.

The child was run over by a soft, drink truck which had been parked on a sidewalk making a delivery at about 6:45 p. m. March 7, 1974. The evidence supports no other conclusion than that the child was not in front of the truck until an instant before it moved. The evidence also supports a conclusion (although not so conclusively) that the child had been under the parked truck until just before (“about two seconds later”?) it started, and (less conclusively) that the child attempted to get out and barely managed to stand on the curb in front of the truck (though too short to be seen from its cab) before it moved and rolled over him: and we conclude these must have been the conclusions of the jury (although it may have rejected the testimony of the witness who said he saw the child standing “on the edge of the curb . in the process of being hit” but also testified the child was not visible near the truck just before it was hit).

Appellant complains that “under the duty-risk analysis, negligence is apparent.” Appellant refers to the truck driver’s duty not to park on the sidewalk. First, although we recognize that the truck’s being above the child was as much a cause-in-fact of the accident as was the child’s being under the truck, and that the truck’s presence in the child’s vicinity was in that sense a cause-in-fact of the accident, we conclude that parking on the sidewalk (as opposed to parking on the street seven feet away) was not shown to be a cause-in-fact of the accident. There is no evidence explaining the youngster’s being under the truck, but it is unthinkable that he got under the truck in order to use the sidewalk, or because he could not use the sidewalk. (There was ample room between sidewalk and building for anyone to pass.) Presumably he got under the truck because he was attracted by something under it, either its own mysteries or something such as a dropped coin or the like. Thus his presence under the parked truck is in no way related by the evidence to the truck’s being parked on the sidewalk rather than immediately adjacent to the sidewalk. We cannot say that but for the truck’s parking on the sidewalk the accident would not have occurred. (Compare Dixie Drive It Yourself Sys. v. American Beverage Co., 1962, 242 La. 471, 137 So.2d 298, and Pierre v. Allstate Ins. Co., 1970, 257 La. 471, 242 So.2d 821, in each of which but for the parking of a vehicle on the highway the collision with a vehicle travelling on the highway would not have occurred.) Had a pedestrian walked in a roadway (or a child walked under the parked truck) because of a parked truck’s preventing passage along the sidewalk, we might conclude that the improper parking caused the pedestrian’s presence in the roadway (or the child’s presence under the truck) and therefore was a cause-in-fact of an injury to the pedestrian (or child) there occurring; but we cannot similarly reason here that the truck’s being simply on the sidewalk (rather than next to it) caused the child to go under the truck and thus caused his fatal injury. Second, we conclude that the risk of children’s crawling under vehicles is not a risk intended to be avoided by ordinances (or common sense) proscribing parking on sidewalks. The most evident purpose of the duty not to park on sidewalks is to preserve those walks for walkers, so that pedestrians need not travel in the roadway, endangered there by moving vehicles. In any event, as we have first noted, the location of the parked truck on the sidewalk was not shown to be a condition, a sine qua non, a “but for”, and in that sense a cause of the child’s injury.

Appellant also complains of the trial judge’s refusal to admit into evidence a policeman’s diagram of the truck’s location prior to the accident. This refusal was harmless, if error at all. Despite great effort to fix with mathematical precision the location of the truck, no one suggested anything other than that the truck had three of its four wheels off the street and that the truck was almost entirely parked over the curb and sidewalk. Appellant does not suggest any material difference in the evidence had the diagram been admitted.

Appellant also complains of the trial judge’s refusal to charge the jury that a seven-year-old child is incapable of contributory negligence in the absence of a showing of extraordinary conditions (as held in Jackson v. Jones, 1953, 224 La. 403, 69 So.2d 729). The trial judge did err in charging instead a test like that of Simmons v. Beauregard Parish Sch. Bd., La.App. 3 Cir. 1975, 315 So.2d 883, 888, writ refused La., 320 So.2d 207 (a case of a 13-year-old). However, the jury indicated, by asking whether it might award funeral costs despite a finding of no negligence on defendant’s part, that this erroneous charge was not a basis for its result. We therefore conclude this error was harmless.

Appellant’s final complaint is the general one that the verdict is contrary to the law and the evidence. To the virtually undisputed facts already recited we add that the child had been seen by the defendant driver when he first parked, at which time he promised him a soft drink on completion of the delivery. Delivery took 30 minutes or more during which the boy ran in and out of the store to which the delivery was being made. At the end of the delivery the driver looked casually for the child but did not see him. Immediately before ascending the truck to leave, the driver walked from the passenger’s side behind the truck to the driver’s door, and his helper walked from the driver’s side in front of the truck to the passenger door, and the child was not seen by either. Appellant urges that, having seen the child earlier, the driver had the duty of the highest degree of care, which would oblige him to look under the truck. We agree that a driver who has seen a child in the immediate vicinity of his truck and has by a promise of a soft drink enticed the child to stay near the truck, and who moreover has parked his truck on the sidewalk (where children are supposed to be), has an obligation of greater care than a driver parked in the street who has not seen children in his vicinity. However, we reason that the extent of the obligation to the child depends upon such factors as the child’s apparent age and discretion. Perhaps the recently-noted presence of an unattended infant, a year or two old, would require a driver to look under his parked vehicle for the infant before moving. We cannot, however, rule that having recently seen a seven-year-old child in the vicinity obliges one who is about to move a parked vehicle to anticipate that the child would have crawled under the vehicle, and therefore to look under the vehicle for the child before moving. We cannot say the jury verdict is contrary to the law and the evidence.

Affirmed.

BOUTALL, Judge,

dissenting.

A seven year old boy was run over and killed by a Coca-Cola delivery truck as it started up from its parking place across a sidewalk where it had been parked making a delivery. There is no basic dispute as to any fact except the whereabouts of the child as the truck pulled off. Since this was a jury trial, there is no finding of fact, but it may be presumed, from the comments of the foreman in asking the Judge for additional instructions, that the jury found no negligence on the truck driver. I disagree and find manifest error in fact and in law.

First, I am of the opinion that the truck was illegally parked upon the sidewalk. The truck driver testified that as he approached this area to make a delivery, he pulled off of the Galvez Street roadway across the curbing and onto the sidewalk so that he stopped roughly parallel to the roadway with his right wheels blocking most of the sidewalk, his left front wheel being across the curbing and his left rear wheel (a dual wheel,) with one wheel in the street and one on the curbing. He parked in this fashion to make a delivery, not because it was any emergency, but for convenience in making the delivery, and noted that his delivery instructions (this was his first time for a delivery in this location) indicated that he should park along the side of the store, in this fashion. Under these facts, he is in violation of the City Ordinance prohibiting parking on the sidewalk. Presuming that the test of negligence to be applied in such a case is the action of a reasonably prudent man, it is suggested that when leaving such a parking position, a reasonably prudent man must consider that moving this heavy vehicle in an area reserved for pedestrians, he must certainly exercise a greater degree of care than when he moves his vehicle in the street which is designated primarily for use by such vehicles.

However, under the facts as here, he faces an additional factor which requires an even greater degree of care, that is, the presence of a young child. The driver testified that after he stopped to make the delivery he was approached by the young boy who asked him for a Coke, and he promised that he would give the boy a Coke after he finished the delivery if the boy would hold the door open for him while he made the delivery. The delivery took much longer than expected, and when he left the premises to get into the truck, he did not see the boy around, although he testified he looked for him and asked his assistant if he saw the boy around. Of great importance is his testimony that he expected the boy to be present, because in general when children ask for a Coke and are promised one, “* * * they don’t leave. They stay there.” It should also be pointed out that his testimony that he inquired of his helper as to the whereabouts of the young boy is denied by the helper, who was not aware of any necessity to see if the boy was around. It is well settled that children are owed a high degree of care by a motorist when the motorist is aware of the child’s presence or should be under the circumstances. Under the facts outlined above, this driver owed a high degree of care to ascertain the whereabouts of the child whom he fully expected to be there, and his actions are in violation of the ordinary reasonable care to be taken in such circumstances. Schmeltzer v. New York Fire & Marine Underwriters, Inc., 215 So.2d 133 (La.App. 3rd Cir. 1968); Burnaman v. LaPrairie, 140 So.2d 710 (La.App. 3rd Cir. 1962).

The majority opinion states that the evidence supports no other conclusion than that the child was not in front of the truck until an instant before it moved, and that probably the child had been undér the parked truck until just before it moved. We have no way, of course, of knowing what factual determination might have been made by the jury. Three eyewitnesses testified as to seeing the boy at the time of the injury. These witnesses were occupants of vehicles stopped on Galvez Street waiting for a change in signal light and consisted of the driver and passenger of a pickup truck, who were approximately across the street from the delivery truck, and the driver of an automobile several cars back, who was thus in a position to see in front of the delivery truck. The two witnesses in the pickup truck first noticed the boy when he was beneath the delivery truck, and there is some confusion in their testimony as to whether the truck was moving or not when first seen. Certainly a finding that the truck was not moving could not be reversed by this court on their testimony alone, although the testimony of the driver is such as to lead me to believe that the truck was already moving, and the boy was hurt because he was “flopping” around under the truck at the time of original observation, and was right at the rear of the cab. However, the testimony of the driver of the vehicle several cars back, Charles Bosch, positively places the boy in front of the truck at the time that the truck is pulling off. Unless his testimony is disregarded as unworthy of belief, and there is nothing in the record to suggest that it is wrong, the boy was in front of the truck, in a position where because of the heighth of the vehicle and the position of the driver, it was difficult for the driver to see him. It should also be pointed out that the location of the boy’s body after the accident would corroborate this placement of the boy.

As to how this boy got in front of the truck, we can only speculate. The testimony of the driver and his helper is that they passed around the front of the truck and that the boy was not there at the time they entered the truck. The testimony in general indicates that while the delivery men were making their delivery the boy had been playing in the area, and it is observed that his home is only 50 feet from the accident site. I do not consider the speculation as to how the boy came to be in front of the truck is necessary to a solution of this case. A person driving a vehicle on the sidewalk, who expected the child to be in the area, must be held negligent for striking him.

I respectfully dissent.


source: Caselaw Access Project

author: BOUTALL, Judge. REDMANN, Judge,

license: Public Domain

text:
    Jarysch SANSONNI et al. v. JEFFERSON PARISH SCHOOL BOARD.
    No. 7903.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 3, 1977.

      Chauppette, Genin, Mendoza & Parent, Al J. Mendoza, Marrero, for Jarysch San-sonni, et al., plaintiffs-appellees.
    Jack A. Grant, Gretna, and Bienvenu, Foster, Ryan & O’Bannon, Robert N. Ryan, Frederick R. Campbell, New Orleans, for Jefferson Parish School Bd. and Gulf Ins. Co., defendants-appellants.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This suit arises from a slip and fall accident in the cafeteria of the Marrero Middle School in Jefferson Parish. Judgment was awarded the plaintiff in the sum of $45,000 general damages and $3,518.15 special damages against the School Board and its insurer. Defendants appeal that judgment.

The uncontradicted facts are as follows: On January 24,1973 Gary Sansonni, 13 year old son of the plaintiff, was a 6th grader at Marrero Middle School. At noon lunch period, Gary and his classmates were escorted to the school cafeteria by their teacher, Franklin Polk. At that time the cafeteria was empty of students éxcept for a few stragglers remaining from the previous lunch period.

Mr. Polk placed Gary at the head of the line to be served lunch, and then turned his attention elsewhere because of a scuffle between other students in line. Gary proceeded through the serving line, paid for his lunch at the end of the line, and then turned and headed for the seating area. Within a few steps past the point where Gary received his lunch, Gary slipped and fell onto the cafeteria floor. It was readily apparent that Gary was injured and two other teachers were called to assist in moving Gary to the First Aid Room. From there Gary was taken to West Jefferson Hospital’s Emergency Room for treatment.

The appellants argue that the trial court erred in finding that Gary slipped on a foreign substance on the floor and in imposing too great a legal duty of care. Alternately, they contend that the quantum of damages awarded is excessive and should be reduced.

Defendant-appellant, Jefferson Parish School Board, argues that it should not be held to the same standard of care as a supermarket as in Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.Sup.Ct.1976), or a self-service neighborhood grocery as in Kavlich v. Kramer, 315 So.2d 282 (La.Sup.Ct.1975), or even a country club, as in Rosensweig v. Travelers Insurance Company, La.App., 333 So.2d 334 (1976). In response we reaffirm out statement in Rosensweig at 333 So.2d 337:

“First, the trial court stated that it could not impose the same duty of care upon Vista Shores Club as is commonly imposed upon supermarkets. While it is true that the circumstances surrounding such a duty will be different, the duty remains the same. The duty imposed upon the owners of a country club holding a supper dance is the same general duty imposed upon the owners of any premises having business invitees. This duty is to use reasonable care to protect the invitees against every hazard which creates an unreasonable risk of harm. Prosser, Law of Torts, 3d Ed. §§ 401-405. This would include country clubs as well as supermarkets. As the Supreme Court recently said, “This duty includes a reasonable effort to keep objects off of the floor which might give rise to a slip and fall.” Kavlich v. Kramer, 315 So.2d 282 (S.Ct.1975).

It is not the duty which changes in each case. It is the factual consideration of the risk of fall involved and the reasonableness of the measures to prevent it that differ in each case, requiring the trial judge to consider the relationship between the risk and the measures to eliminate the risk. The answer is simple when direct evidence is obtainable. It becomes difficult when circumstantial evidence must be used, as here, to establish the length of time a foreign substance remains on the floor. A plaintiff is required to establish a prima facie case of negligence on the part of the defendant, after which the burden is on the defendant to go forward with the evidence to rebut the inference of negligence. The trial judge weighs the direct and circumstantial evidence at the conclusion of the trial and determines whether the defendants’ negligence is the most plausible reason for the injury.

In our case, plaintiff shows a hazardous condition being created by spaghetti sauce lying on the floor in the path of a young student occupied with carrying a tray of food. Defendant-appellant points out that only Mr. Polk, Gary’s teacher (and later tutor) testified as to the presence of the spaghetti sauce (Gary did not know what he slipped on) whereas four cafeteria workers testified on behalf of the defendant that they found no food substance on the floor at the spot where Gary slipped. After reviewing the testimony of record, we can only conclude that the trial judge placed less emphasis on the credibility of the cafeteria workers than the credibility of the teacher who witnessed the accident. The trial judge is in the best position to determine the credibility of the witnesses, and his findings must be accorded great weight. They may not be disturbed upon appeal unless it is apparent that he has committed manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We note that all of the defendant’s cafeteria workers testified that they found no spaghetti sauce or food substance at the spot of his fall, nor even any food spilled from Gary’s tray at the spot of the fall. None of those witnesses could explain the reason that at least Gary’s tray of food or spilled food could not be found immediately after the fall.

We conclude the food substance was there, but was it there long enough to show actual or constructive notice on the defendant? For this answer the court must resort to the circumstantial evidence. It is apparent that the trial judge determined the inspection procedure of the defendants to be insufficient, and based his judgment on the lack of reasonable care.

The cleanup procedure at Marrero Middle School’s Cafeteria as set forth in the workers’ testimony consisted of mopping the entire dining and serving area after the three lunch periods ended, and calling a dishwasher from the kitchen to mop any reported spills on the floor. This procedure did not include having a person with a duty to supervise and police the area, even though there was a sufficient number of personnel to have a person with such a duty. The cashier, who normally spots and reports food substances on the floor to be cleaned up, could not see the area where Gary San-sonni slipped and fell because her back was turned to that area.

The testimony of the witness to the accident, Mr. Polk, was that every day there was food on the floor, that he had on prior occasions reported it, but that the food was seldom cleaned up from the floor. He and other teachers felt it was useless to report spills because of the lack of action taken by the Cafeteria staff. We note that this particular area is crossed over by every student carrying the tray of food he receives in the food line. Additionally, the garbage cans where the students emptied their trays were close to the area of the fall and all witnesses testified that quite often there was food on the floor around the garbage cans. Based upon the credibility determination by the judge and these facts, we conclude this was a high risk area and more careful supervision was necessary. We agree with the finding of liability.

Defendant-appellant has raised the issue of contributory negligence. Defendants have failed to prove that Gary Sansonni was aware, or should have been aware, of the danger posed by the sauce. Gary testified that he did not see the substance and it is reasonable to conclude he could not clearly see the area in which he was walking because of the food tray which he was required to carry.

Both parties contest the quantum of damages awarded. To modify the amount of an award for general damages, an appellate court must find that the trial judge has abused the “much discretion” accorded by the Codal provisions; the awards in other cases serve only as an aid in determining whether there has been an abuse of discretion. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971). Those cases that the defendant relies upon as a guide in reaching a reduced award are inapplicable to our case because of the nature of the injuries suffered by the plaintiff’s son. Gary suffers from a congenital defect of osteogenes-is imperfecta, an imperfect bone composition that renders the bones of the body unusually brittle and susceptible to fracture with a minimum of force. This condition allowed Gary’s leg to break when normal children would only sustain a bruise from such a slip and fall as Gary suffered.

After the fall, Gary was hospitalized in West Jefferson Hospital for a period of 34 days, during most of which he was in traction. At the end of his hospitalization he was removed from traction and placed in a spica body cast from his navel to the bottom of his leg. He was immobilized by the body cast for a period of approximately 6 weeks until removed on April 12, 1973.

On April 19,1973 Gary was readmitted to West Jefferson Hospital for six days for treatment of kidney stones. The testimony of the two orthopedists, Dr. Jack Winters and Dr. Hyman Soboloff and the Urologist Dr. B. R. Eubanks, was that the immobilization of Gary caused by the traction and body cast was responsible for the development of the kidney stone. It was not necessary to operate to remove it but it required several months of conservative treatment and caused Gary great discomfort.

Further, the immobilization due to the hospitalization and body cast caused Gary’s back to be weakened, even by the standards of a person suffering from osteogenesis im-perfecta. This weakness was a contributing factor to a probable fracture of the vertebrae in July 1973, which necessitated his wearing a back brace to relieve his back problems. Both orthopedists agree that the back brace was necessary and disagree only as to how long Gary should continue to wear the brace.

The original injury, the broken femur, healed in such a manner as to cause the left femur to be permanently bowed and both orthopedists found Gary to have one leg, the left, shorter than the other, the cause of which was contributed to by the broken femur. Both orthopedic experts rendered an opinion that the shortened, bowed left leg put an unnatural strain on the left knee, and thus required the aid of the leg brace for correction.

We follow the rule of tort law set forth in Rachal v. Bankers and Shippers Insurance Company, La.App., 146 So.2d 426 (1962). “A tort feasor must take his victim as he finds him. The tort feasor is responsible for all the natural and responsible consequences of his wrong, even the consequences of the tort are made much more serious or harmful by reason of a pre-exist-ing physical defect or weakness of the injured person.”

Thus, in considering the amount awarded for general damages, we must consider the pain and suffering of Gary San-sonni as a result of the fracture, the hospitalization, traction, body cast, back pain, leg pain, the necessity of leg and back braces, the pain of the kidney stone and the attendant hospitalization, and the amount of school missed. In the light of the numerous consequences arising from the slip and fall, we cannot find the award of $45,000 to be a clear abuse of discretion.

As to the appropriateness of the special damages awarded we state only that the testimony of the doctors that treated or observed Gary Sansonni established a relationship between the items of special damage sought to be recovered and the fall suffered by Gary Sansonni at Marrero Middle School on January 24,1973. Accordingly, the judgment appealed is affirmed.

AFFIRMED.

REDMANN, J., dissenting.

REDMANN, Judge,

dissenting.

It was contributory negligence not to see and avoid the spaghetti sauce.


author: LEMMON, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. REGENT DEVELOPMENT CORPORATION.
    No. 7904.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 3, 1977.
    Norman L. Sisson, William W. Irwin, Jr., Johnie E. Branch, Jr., Baton Rouge, Alvin J. Liska, New Orleans, Jerry F. Davis, Baton Rouge and Jesse S. Guillot, New Orleans, for plaintiff-appellant.
    Arthur L. Ballin, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   LEMMON, Judge.

In this appeal the State of Louisiana, Department of Highways questions, as excessive, the amount of just compensation awarded for the expropriation of defendant’s property.

The tract of land involved in this litigation was generally rectangular in shape and measured 744 feet on Ames Boulevard, with varying depth on an east-west line up to about 1,950 feet. The proposed route for Interstate Highway 410 in the area also ran east-west and included most of the south half of defendant’s tract. Because an elevated interchange with Ames Boulevard was also proposed across the property, the Department additionally expropriated all of defendant’s existing frontage on that north-south thoroughfare.

The subdivision is shown on the following excerpt from an exhibit with the required right of way indicated by heavy lines:

Prior to the taking by expropriation, most of the tract had been subdivided into Bayou Estates Extension. The portion fronting on Ames, to a depth of 311 feet, was left undivided for potential commercial use, although the entire property was zoned for residential use. The remaining property in the rear was divided into 173 lots for residential use.

Defendant had developed the north part of the subdivision and had sold or constructed houses on the 55 lots shaded on the above exhibit. Because parish approval for the development of the remaining 118 lots (including the 25 undeveloped lots not included in the expropriation) and rezoning of the commercial area had been withheld on account of the impending highway project, defendant requested an “advance taking” as a hardship case. The Department then approved the acquisition of the right of way across the particular property as an “advance taking”, but no other property in the area was acquired at the time.

The date of the taking was April 19,1973. The case was tried on several non-consecutive days and was concluded in April, 1975, at which time construction of the project had still not been approved and a suit had been filed to enjoin construction. The trial court found the value of the part taken was $259,006 and the severance damage to the remainder was $47,782.

COMPENSATION FOR PART TAKEN

Value Before the Taking

All three expert appraisers divided the entire property for appraisal purposes into two sections, residential and potential commercial, on the basis of highest and best use. As to the residential section containing 118 undeveloped lots, all experts also agreed that the most appropriate approach to value was the developed subdivision analysis, in which the appraiser estimates the selling price of developed lots in bulk sales and deducts the costs of development and sale. Using this approach, they essentially estimated the value on a per lot basis, alternatively calculated on an acreage basis. As to the commercial section containing 233,-994 square feet, the appraisers used comparable sales and estimated the value of the subject property on a square footage basis.

Recapitulation of the three appraisals was:

Before value:
I II III
Residential $173,562 $205,975 $202,813
Commercial 210,391 152,096 175,500
Total $384,153 $358,071 $378,313

Applying the same unit values to the amount of property taken by expropriation, the appraisers estimated the value of the part taken as follows:

Value of part taken:
I II III
Residential $136,515-00 $148,830.00 $146,579.00
Commercial 126,763-00 91,554.00 105,639.00
Total $263,278.00 $240,384.00 $252,218.00

Award for Value of Part Taken ($259,006.00)

There was little difference between the appraisers as to the total amounts estimated for the value of the part taken, although the recapitulations showed significant differences in the figures used to reach those totals.

The Department’s appraisers’ approach in valuing the residential property was more consistent and persuasive, but their valuations were higher than that of defendant’s expert. On the other hand, defendant’s expert’s valuation of the commercial property, although perhaps slightly high, was based on more persuasive comparables which required less adjustments, and the trial judge’s apparent acceptance of a figure closer to his value of $0.90 per square foot, over the $0.65 and $0.73 value estimated by the Department’s appraisers, was supported by the record.

A trial court’s finding of property value is a finding of fact to which great weight should be accorded on appellate review. State, Dept. of Highways v. Ragusa, 234 La. 51, 99 So.2d 20 (1958). The record supports the finding in this case.

SEVERANCE DAMAGE

Value After the Taking

The Appraisers estimated the value of the property remaining after the taking as follows:

I II III
Residential $ 8,300 $ 9,500 $ 8,025
Commercial 69,856 186,283 198,400
Total $ 78,156 $195,783 $206,425

This recapitulation illustrates that the main point of controversy in the evidence was the estimated value of the commercial property remaining after the taking. The importance of this point is further demonstrated in the following calculations of severance damages:

Total before valúe $384,153 $358,071 $378,313
Total after value -78,156 -195,783 -206,425
Total value of part taken plus severance damage $305,997 $162,288 $171,888
Less value of part taken -263,278 -240,384 -252,218
Severance damage $ 42,719 -0--0-

Award of Severance Damage ($47,782)

The severance damage at issue in this case is that damage to the remaining part resulting from the partial expropriation of the tract. R.S. 48:453 (before the amendment inapplicable to this case) required that damages to the remainder of the property be determined as of the date of trial.

The Department’s appraisers admitted that the residential section sustained severance damages in the range of $47,645 to $48,209. However, they opined that the tract, taken as a whole, sustained no severance damage, inasmuch as the value of the commercial section was considerably enhanced by the taking for the proposed highway project. On the other hand, defendant argues that the Department is actually seeking a setoff for special benefits, the value of which the Department has the burden to prove, and that the proof does not support a finding of special benefits.

Enhancement in value accruing to the remainder of a tract, as a consequence of the public purpose for which part of the tract was expropriated, is generally viewed as a benefit for which the expropriating authority may, according to the circumstances, be entitled to a setoff against severance damages. Nevertheless, even under the approach the Department urges in this case, the ultimate determinative question is whether the value of the commercial section was actually higher after the taking and particularly at the time of trial.

Defendant’s appraiser opined the irregularly shaped commercial remainder had a lesser square foot value after the taking, noting that upon construction of the interchange the majority of the remaining frontage would not have access to Ames Boulevard (because control of access would be imposed over all but the first 188 feet of the frontage for the ground level on-ramp) and that the presence of the overhead structure would also reduce value. While he admitted that the expected increase in traffic would make the property more attractive for commercial use, he concluded there were no special benefits at present from the taking principally because of the uncertainty surrounding construction of the project and reports of abandonment.

The Department’s experts based their opinion as to the substantially higher value after the taking on the fact that the frontage (although limited) would be the first point of access at the on-ramp of the interstate highway. They offered comparable sales to support this opinion, but most of the sales occurred before the taking, and all required a number of substantial adjustments because of gross dissimilarities in location and size. The experts also admitted that if a holding period of more than three or four years was reasonably expected, a greater downward adjustment should be applied. They knew of no commercial sales on Ames Boulevard since the date of the taking.

We agree that the value of the commercial property will increase substantially if the access route to an interstate highway is constructed across the property. One must also acknowledge that reasonable anticipation of such construction does have an effect on present market value, and to that extent enhancement in value may accrue when construction of the project is reasonably assured even though no actual construction has begun. However, the Department’s position in this regard was weakened in this case because the expropriation was an “advance taking”, the construction of the project had not been approved by time of trial, and an injunction suit was pending. Probably for those reasons, the market at the time of trial had not yet reflected any substantial effect of the anticipated project.

The trial judge rejected the claim for special benefits as “speculative, conjectural and uncertain as of the date of trial”. Under the rather unusual circumstances of this case, as shown by this record, we concur in that characterization. See State, Dept. of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972).

Expert Fees

The trial court awarded expert fees of $1,500 for trial preparation and $150 for each of two court appearances.

The expert testified only that defendant’s representative agreed to a fee of $2,500 for the appraisal and $150 a day for court appearance. The amount a party agrees to pay an expert, however, is not the determinative criteria for awarding expert fees.

The expert testimony obviously required some preparation, but there was no evidence as to the amount or value of the efforts expended in preparing the appraisal. We therefore reduce the expert fee for trial preparation from $1,500 to $300 considering this a minimum award for the apparent efforts in the absence of additional supportive evidence.

Accordingly, the judgment of the trial court is amended to reduce the total expert fee from $1,800 to $600. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The expert presented by defendant testified on two separate days. Although on the first day he opined the highest and best use of the entire property was residential, on reappraisal he concurred in the opinion of potential commercial as the highest and best use of the Ames frontage.
      All experts finally agreed as to the reasonable probability of achieving a zoning change without difficulty.

      . In these recapitulations the values estimated by defendant’s appraiser are shown first, and those of the other two appraisals are listed consistently in the same order.

      . We acknowledge, but reject, the Department’s argument that the trial court erred as a matter of law in awarding $259,006, which was the amount deposited at the filing of the suit, since the original certificate of just compensation was subsequently amended to $252,218. The record supports the award that was made, and an award based on the conclusion that the original estimate of value was correct does not constitute error, especially since the reason for changing the original estimate was not explained.

      . The Department’s appraisers actually calculated severance damage by determining the indicated remaining value (value of entire property before taking minus value of part taken) and comparing that to their estimated value of the remainder.

      . Indeed, one of the Department’s experts admitted he used the special benefits offset in determining there was no overall severance damage.

      . While one of the appraisers opined that an investor “could not get that hurt at $2.13 a square foot today if the project was never built”, he admitted at another point that “the values in the area for commercial property are probably approaching at (sic) least $1.00 a foot now”.

        . One expert testified that he had never heard of an interstate project being abandoned.
      Perhaps measurement of damages at time of trial often provides the Department a better opportunity to prove special benefits, because value increases have usually been demonstrated by time of trial. In this case, however, that provision of R.S. 48:453 worked to the Department’s detriment.


author: MORIAL, Judge.

text:
    Marvin David LEDET v. The HIBERNIA NATIONAL BANK OF NEW ORLEANS et al.
    No. 7908.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      James S. Quinlivan, Jr., Jefferson, Gerard R. Kehoe, New Orleans, for plaintiff-appel-lee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Barkley, Jr., New Orleans, for defendant-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for defendants-appellees.
    Drury, Lozes & Curry, William J. Weg-mann, Jr., New Orleans, for intervenor-ap-pellee.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   MORIAL, Judge.

Plaintiff Martin David Ledet (Ledet) sued defendants Hibernia National Bank, (Hibernia) its workmen’s compensation insurer, Employer’s Liability Assurance Corporation, Ltd., The Le Febure Corporation (Le Febure), its insurer The Traveler’s Insurance Company (Travelers) and The Jene-vein’s Transfer and Storage Company, Inc. (Jenevein) for damages for injuries sustained on August 28, 1972 while employed as a clerk for Hibernia.

Immediately before the accident plaintiff was in a stooped position searching for a cancelled check in the bottom cabinet of a three tier check filing cabinet located in the bookkeeping department of the Hibernia when the cabinet tilted forward and fell pinning him to the floor. Plaintiff received an eye injury, a laceration of his elbow and a compression fracture of the L-l vertebra.

Hibernia purchased the cabinets which were manufactured by Amisbarrow Manufacturing Company in July 1968. Jenevein was hired by Le Febure to deliver and install the cabinet on Hibernia’s premises.

Plaintiff alleged that the cabinet was installed in a faulty and negligent manner by Jenevein who was acting as an agent of Le Febure. He contended that a bolt was missing between the tiers.

Travelers denied any negligence on the part of its insured Le Febure. It asserted plaintiff’s contributory negligence and third partied defendant Jenevein claiming its faulty installation was the proximate cause of the accident.

Hibernia filed an exception of no cause of action claiming they were only liable for workmen’s compensation benefits and were dismissed from the suit on that basis. Commercial Union filed an intervention for reimbursement of the workmen’s compensation paid to plaintiff. The parties stipulated before trial that Commercial Union had paid compensation benefits to plaintiff in the amount of $4,818.35.

The district court awarded plaintiff damages of $30,000.00 against Jenevein, dismissed Le Febure and Travelers awarded Commercial Union $4,818.35. No reasons for judgment were given by the district court.

Jenevein appeals claiming the judgment was contrary to the law and fact. Plaintiff, in answer to the appeal, seeks an increase. We affirm.

The issues before the court on appeal are: (1) whether or not plaintiff proved by a preponderance of the evidence that defendant Jenevein failed to replace the bolts in reassembling the cabinet; (2) if negligence was proven, did the trial judge abuse his discretion in awarding plaintiff $30,000.00 in damages; and (3) whether or not the trial judge erred in failing to admit plaintiff’s deposition into evidence for the purpose of impeachment.

Each cabinet consists of a base eleven inches high resting on the floor and three tiers, each of which is sixteen inches high, and are stacked on top of each other. The tiers are fastened together by one bolt on each side between each tier and two dowel pins on each side between each tier. The bolts are located on the side of each tier about twelve to sixteen inches from the front of the cabinet which is less than half of the depth of the cabinet. There are no bolts fastening the tiers together in the rear of the cabinet. Each tier weighs between 400 and 500 pounds and the entire cabinet weighs 1,400 pounds.

The cabinets were shipped and arrived in New Orleans bolted together. They were to be installed on Hibernia’s mezzanine floor. Because of their weight and to get them through the elevator and mezzanine doors it was necessary to disassemble each cabinet. Jenevein contends that plaintiff failed to introduce any evidence to support a finding that he failed to replace the bolts in the cabinet tiers. He testified that he unbolted only the top tier and left the two tiers bolted together. The testimony and pictures introduced show the top and middle tiers separated from the bottom tier. Jenevein explained that the manner in which he disassembled the cabinet was the best way to distribute the weight of the cabinet in light of the number of helpers he had with him.

Jenevein testified positively that he had replaced the side bolts attaching each tier. He admitted to having left out rear bolts in cases where they could not be reached without difficulty. Later testimony confirmed that the Hibernia units did not contain openings for the placement of rear bolts.

Jenevein attributes the accident to the contributory negligence of plaintiff. He argues that Ledet pulled out all or most of the drawers which were filled with checks and that the weight of the drawers caused the cabinet to fall forward.

Ledet argues that the appellate court must give great weight to the findings of the trial judge. He relies on the testimony of witnesses who stated that they surveyed the area after the accident and found no loose bolts. They also rely on the testimony of the Le Febure serviceman who repaired the cabinet. He stated that he had found only one loose bolt in the channel of the bottom tier. He also discovered that bolts were missing in the standing units. Ledet also points out the testimony of the bank manager that the cabinets had not been moved or tampered with in the four years between their installation and the accident.

We first address ourselves to the issue of the failure of the district court to admit plaintiff’s deposition for the purpose of impeachment. LSA-C.C.P. Article 1428 provides that the deposition of a party or his representative may be used by an adverse party for any purpose. Accordingly, the district court erred in not admitting plaintiff’s deposition into evidence for impeachment of his testimony.

We conclude that plaintiff was not contributorily negligent. The testimony of the witnesses as to the number of drawers open immediately preceding the accident varied from a few to almost all of the drawers. The testimony given on this particular factual issue was contradictory and therefore a credibility question arose. We are compelled to affirm the findings of the trial judge reconciling that conflict in plaintiff’s favor. Apparently, the trial judge found that the number of drawers left open by plaintiff was not the proximate cause of the accident.

The remaining evidence as to the proximate cause of the cabinet falling is circumstantial in nature. It is not an issue of credibility but rather one of sufficiency and preponderance of the evidence.

Jenevein testified positively that all bolts were replaced at the time the cabinets were reassembled. Mr. Herbst, the Le Febure representative, testified that he saw Jene-vein replacing the bolts and that he assumed all had been replaced. Mr. Zigler, the bank manager who was present saw them assembling the unit and also assumed they had replaced the bolts.

However, a number of employees and Mr. Herbst all testified that they had surveyed the area after the accident and had found no loose bolts. Mr. Seigel, the Le Febure serviceman who came to repair the cabinets the day after the accident, testified that he could only find one bolt in the bottom tier of the broken unit and had to replace all the others with new bolts. He also checked the standing units and found two or three missing bolts.

It is possible that the bolts in the broken unit were jarred loose upon impact with the desk. They could have rolled under a desk or other furniture and remained undiscovered. Also, the top tier had been moved by bank employees after the accident. This could have resulted in the loss of some bolts. However, it is very difficult to justify the missing bolts in the standing units. Causation may, of course, be proved by circumstantial evidence. Though a plaintiff relying on circumstantial evidence must exclude other reasonable hypothesis with a fair amount of certainty, it is not required, however, that a plaintiff must negate all other possible causes. Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963).

From the evidence presented we conclude that a substantial number of bolts had not been replaced by Jenevein and the absence of the bolts securing the tiers was the proximate cause of the cabinet falling and causing plaintiff’s injury.

In our opinion, the trial judge did not abuse his discretion in awarding plaintiff $30,000.00. Plaintiff was hospitalized after the accident for nine days. He was fitted for a brace which he wore continually until October 12, 1972. After that he wore the brace off and on until November 17, 1972. He was discharged by the treating physician in April 1973. Dr. Kerr testified that at that time plaintiff was free of pain and had full range of motion.

All of the doctors who saw plaintiff found he had a seventy percent compression fracture of the L-l vertebra. He has sustained a 20% disability to his body as a whole. Dr. Saer, an orthopedic surgeon who saw plaintiff in May 1973 and February 1975 stated that plaintiff still felt pain in his mid-back and that he had developed traumatic arthritis. Both doctors agreed that a surgical fusion of the vertebra might be necessary in the future. Plaintiff can no longer lift heavy objects and must act cautiously in engaging in other activities. Pri- or to the accident plaintiff had been very involved in sports activities. Ledet still suffers pain intermittently. He has been able to return to work and to engage cautiously in sporting activities.

In Dolan v. New Orleans Public Service, Inc., 317 So.2d 688 (La.App. 4 Cir.1975). We affirmed an award of $26,000.00 to a plaintiff who suffered a fifty percent compression fracture of the L-1 vertebra. The court commented that the award was high for that type of injury, but found no abuse of discretion relying on Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.


author: REDMANN, Judge.

text:
    Eloise VICTOR v. MEYDRICH’S VENICE GARDENS SUPER MARKET et al.
    No. 7918.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 3, 1977.

      Bruce G. Reed, Reed, Reed & D’Antonio, Metairie, for plaintiff-appellee.
    James L. Donovan, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

Appealing from a judgment on jury verdict for $6,500 for personal injuries, defendant supermarket and its insurer urge that the claim was prescribed and, alternatively, that the injury (a recurrent umbilical hernia) was not caused by defendant. We agree that the claim was prescribed.

Plaintiff’s petition of May 24, 1972 alleged an accident occurred (Friday) June 4, 1971, less than the prescriptive period of a year prior to suit, C.C. 3536. Plaintiff’s supplemental petition, filed after the plea of prescription, alleged alternatively that the accident happened on (Friday) May 14 or some other day over a year prior to suit but made further allegations seeking to es-top defendant from successfully pleading prescription.

The evidence on the date of the occurrence virtually excludes the possibility that it was June 4 and preponderates that it was May 14. On June 1 plaintiff went to the hospital’s general surgery department complaining of her injury, which therefore could not have occurred June 4. On May 15 she complained to an employee of defendant supermarket of being struck by an employee with a shopping cart the preceding day, or May 14, and signed a written statement concerning the incident dated May 15 — a statement read, but not introduced, into the record without objection. (That statement as read, according to the transcript, fixed the accident as “the preceding date, Friday, 5/4/71” — more likely than not a slip of tongue or of transcriber for “5/14/71”.) Moreover, on May 21, 1971, plaintiff went to the same hospital’s “outpatient clinic” on a regular visit, and she testified that the accident and the swelling it caused had occurred before this visit. (On this visit, plaintiff says, she said nothing about the swelling because this visit was for her high blood pressure).

Plaintiff’s amended petition alleged alternatively that she was misled by copies, mailed to her by defendants on May 5,1972, of two letters from her hospital to the insurance adjuster (sic). We find plaintiff’s point difficult to understand. The first letter, dated on January 25, 1972, recited that “On 6/10/71 [plaintiff] came to the admitting room following an accident with swelling in the right lower quadrant.” The second, dated March 7, 1972, repeated that “On 6/10/71 . . . she came to the Admitting Room stating that she had been hit in the right lower quadrant.” (A copy of a third letter, dated April 4, 1972 and also from the hospital to the adjuster and mailed to plaintiff with the other two letters, recites that plaintiff herself went to the hospital to correct other date errors in the earlier letters. That third letter says she came to the admitting room on June 1, 1971.) Plaintiff cannot blame on defendants the hospital’s error in reciting the wrong date of June 10 as the day she first went to the hospital — a date that was corrected to June 1 by another letter received by plaintiff in the same envelope with the erroneous letters. Nor can plaintiff blame defendants for misleading her by these letters into supposing that her accident occurred on or about the day she went to the hospital. Plaintiff knew that she did not go to the hospital on the very day that the accident occurred. We cannot find that the mailing of these letters by defendant estops defendant from pleading prescription.

Although the allegation was never made in any pleading, plaintiff on appeal also avers that the insurance adjuster misled plaintiff into believing that the accident occurred June 4. Plaintiff does testify that the adjuster repeated “June 4, June 4, June 4”. (The adjuster had been released from the witness stand before this testimony, but defendant had no reason to have him testify as to plaintiff’s “June 4” testimony because it was not alleged in plaintiff’s petition. Perhaps the jury accepted this testimony because it was not contradicted.) We reject the notion that a plaintiff who sues after the prescriptive period can defeat prescription by blaming the defendant for plaintiff’s own not knowing the date of the accident in which plaintiff was involved personally. One indispensable element of estoppel to plead prescription is deceit; Taasin v. Allstate Ins. Co., La.App. 4 Cir. 1975, 310 So.2d 680, writ refused, La., 313 So.2d 836. To prove deceit, some special circumstance would have to be proven to explain how one personally involved in an accident, who therefore had personal knowledge of its date, could have been deceived by someone who had no personal knowledge of the date.

Here, the proof is to the contrary. On May 6 or 8, 1972 (presumably, after their May 5 mailing to her), about a week before prescription was to accrue, defendant was reminded, by the copies of the letters from the hospital to the adjuster, that she had gone to the hospital June 1, 1971. Defendant knew that she had waited some time after the accident before going to the hospital. Any possible belief that the accident occurred June 4, 1971 had to be dispelled as of plaintiff’s receipt of the letters. Yet she waited two and a half weeks before filing a lawsuit on May 24,1972, and in that lawsuit she alleged that her injury occurred June 4, 1971. By May 24, 1972 plaintiff’s claim had prescribed and no behavior of defendant was proven which would estop defendant from pleading prescription.

Finally, plaintiff argues that the adjuster deceived her by representing that she did not need a lawyer and that he would settle her claim. Yet plaintiff testified that about seven months after the accident she came to question the adjuster’s sincerity. Such representations by an adjuster do not estop his principals from pleading prescription; Tassin, supra.

Reversed.

      . A hospital photocopy of its record is clearly dated “6-1-71” although an original is unmistakably superscribed with a “0” in different color ink to make it read “6-10-71”. Also in that different ink is the attempted change of the word “swelling” to “checking” and the addition of “nervious” (sic) in the description of the patient’s complaints.


author: REDMANN, Judge. STOULIG, Judge,

text:
    Louis DUNBAR, Jr. and Smith Nabor, Jr. v. Earl TAYLOR and Commercial Union Insurance Company.
    No. 7923.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Edward R. Drury, New Orleans, Clark A. Richard, Metairie, for plaintiffs-appellants.
    James H. Drury, Drury, Lozes & Curry, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

Evidently the trial judge believed the testimony of Mr. and Mrs. Taylor to the effect that the Dunbar automobile did not stop on Washington street at its stop sign for Gal-vez Street but continued on through the intersection with the far lanes of Galvez and the median and into the Taylors’ car. His conclusion had to be that, at the time Taylor looked to his left no car was on Washington at the stop sign for Galvez (or starting up therefrom), and accordingly Taylor was not negligent in starting up from his stop on Galvez at the stop sign for Washington. The testimony of the Taylors and the physical facts of their having moved 20 or more feet (through parking lane extension and into or through first travel lane of Washington) from their stop while plaintiffs moved only about 75 or 80 feet (through parking and two travel lanes plus a 30-foot median plus another travel lane of Galvez) suffice to support the trial judge’s conclusion.

The case presents an ordinary question of belief. The trial judge found no negligence on Taylor and negligence on Dunbar. His reasons indicate he disbelieved Dunbar and his passenger. We are unable to reverse his credibility call. Canter v. Koehring, La. 1973, 283 So.2d 716.

Affirmed.

STOULIG, J., dissents with written reasons.

STOULIG, Judge,

dissenting.

I respectfully dissent.

Plaintiffs, Louis Dunbar, Jr., and Smith Nabor, Jr., the driver and guest passenger respectively, filed suit against Earl Taylor and his insurer, Commercial Union Insurance Company, for damages they allegedly sustained when the automobile in which they were riding collided with a vehicle driven by Taylor at the intersection of Washington Avenue and Galvez Street in the City of New Orleans. The trial judge dismissed both claims finding that Dunbar was negligent and Taylor was not. Plaintiffs have appealed.

The record reflects that Taylor’s negligence in attempting to cross a favored street from an inferior position regulated by a stop sign at a time when it was unsafe to do so was the legal cause of the collision.

At the accident site, Washington Avenue is composed of two undivided lanes, one for northbound and one for southbound traffic. There is also a lane for parking on the side of each lane reserved for moving traffic. Galvez Street is composed of two separate roadways, one for eastbound and the other for westbound traffic. Divided by a 30-foot neutral ground, each roadway has two lanes reserved for moving traffic and a third for parking. Stop signs are posted for Galvez Street traffic on both the westbound and eastbound entrances to the intersection.

On Washington Avenue, stop signs regulate traffic as it first enters the Galvez intersection from either north or south, but there is no traffic control requiring traffic to stop after traversing the wide neutral ground. In other words, motorists are not required to stop at the point where the neutral ground ends and the second Galvez roadway begins.

Taylor’s testimony alone convicts him of negligence. Apparently he erroneously thought Dunbar was required to stop at the threshold of Galvez Street from the neutral ground side. Taylor, driving westbound on Galvez in the right lane, said he stopped at Washington in obedience to the sign facing him. He looked both ways and saw nothing. Then after driving slowly into the intersection approximately 10 feet beyond the sign, he first saw the Dunbar car coming from his left on Washington Avenue at a speed of 40 miles per hour. He estimated it was 15 to 25 feet away. Then he speeded up trying to beat the oncoming car because, as he perceived it, Dunbar was not going to stop for the stop sign as he should. He stated:

“Q You said you were ten feet out in the intersection?
“A When I saw him coming right through the stop sign and he claims I went through it.”

Dunbar meanwhile tried to turn sharply to his left so that he could move parallel to the Taylor vehicle and avoid the collision. Taylor claims had Dunbar not done so, plaintiff could have passed behind his car without hitting it.

The physical evidence does not bear out this contention. Fallen debris indicates the impact occurred in the right lane of Galvez and the right lane of Washington, and the damage indicates the front of the Dunbar car hit the left front fender and door of the Taylor station wagon. Dunbar had no reason to anticipate that Taylor would attempt to cross in the path of his moving vehicle without sufficient time or clearance to do so. As a reasonable man he could assume that the defendant would obey the stop sign and by so doing afford the plaintiff the right-of-way to which he was entitled. Nor is there any evidence in the record to establish that plaintiff was contributorily negligent in failing to avoid the accident.

Based on Taylor’s testimony alone and the physical evidence, we conclude he either failed to see the Dunbar car approaching from the neutral ground area before leaving his position of safety or he labored under the misapprehension that Dunbar was obligated to stop at the neutral ground entrance to the Galvez roadway. There is no proof whatever that Dunbar was negligent or contributorily negligent. Once the Dunbar vehicle traversed the first roadway of Galvez Street and entered the neutral ground area, there were no traffic controls restricting its movement.’ Plaintiff was free to continue across the remaining roadway of the intersection without being interfered with by traffic proceeding on Galvez Street. Only when existing circumstances would dictate otherwise to a reasonable and prudent driver, plaintiff had the right to proceed across the remaining segment of the intersection with the expectation that traffic approaching on Galvez would stop in obedience to the stop sign.

Therefore I think the judgment should be reversed on liability.


author: GULOTTA, Judge.

text:
    Voncile WARD and Dorean Ernest, Individually and on behalf of her minor daughter, Dawnelle Ernest v. Cotial CONN.
    No. 7924.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiffs-appellants.
    Dillon & Williams, New Orleans, David M. Cambre, Kenner, for defendant-appellee.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   GULOTTA, Judge.

Plaintiffs, a tenant and her invited guests, appeal from a dismissal, after trial on the merits, of their damage suit against an owner-lessor for injuries sustained from an alleged defect in the floor of the leased residence.

Plaintiffs’ version of the incident is that on September 4, 1974, during a visit by Dorean Ernest and her 2-year-old daughter to the residence rented by Voncile Ward, the child sustained injury when she fell through a hole in the floor; and that the adult plaintiffs were injured when, in the course of rescue of the child, the floor collapsed and they were struck by loose boards.

Written reasons of the commissioner, which were adopted by the trial judge, pointed out that the dismissal of plaintiffs’ suit was based on a failure by plaintiffs to show the existence of a defect. Those reasons, in pertinent part, are as follows:

“ * * * The evidence, taken as a whole, failed to show that there was a hole in the floor through which a child fell and that two adults were injured when they went to the child’s aid. * *
“The positive testimony of the defendant, her daughter and two repairmen that in fact there was no hole in the floor is considered, on the whole, to be more credible than the testimony offered by the plaintiffs and their witness to the alleged incident.”

Plaintiffs’ argument, on appeal, is twofold. First, they claim that the trial judge committed an error of law by imposing an improper burden of proof. Citing Anthony v. United States Fidelity & Guaranty Company, 312 So.2d 689 (La.App. 4th Cir. 1975), they argue that once a defect causing injury has been alleged by the lessee, the lessor, to escape the application of strict liability under LSA-C.C. art. 2695, has the burden of establishing that the defect did not exist. Second, plaintiffs contend that the trial judge made erroneous factual conclusions by his failure to accord proper weight to independent witnesses who corroborated plaintiffs’ version of the accident. We disagree.

Our law imposes strict liability upon a lessor for damages occasioned to a lessee due to a defect in the leased premises. However, the tenant relying on recovery under LSA-C.C. art. 2695 bears the burden of showing the existence of a defect, and causation between the defect and the injury. The same standard of strict liability for damages sustained by third parties on a lessor’s premises is applicable in defective premises cases. Likewise, in such cases, plaintiff bears the burden of proving the existence of the defect causing injury to him.

We find no merit to plaintiffs’ contention that our decision in Anthony relieves plaintiffs of the burden of showing the existence of a defect. We fail to find language in that decision which supports plaintiffs’ contention that mere allegation (without proof of the existence of a defect) is sufficient to shift the burden on defendant of exculpating himself from liability. Our holding in that case is not inconsistent with the aforementioned jurisprudence. In Anthony, at page 690, we stated:

“ * * * For defendant lessor to absolve itself and its insurer from liability, they had to establish the roof did not leak. C.C. art. 2695 requires a lessor to deliver and maintain the leased premises free from defects and holds him to strict liability if a vice in the property causes injury. * * * ” (footnote deleted)

This language does not relieve plaintiff from the initial burden of proving the existence of the defect. Rather, it means that once plaintiff has established the existence of the defect, strict liability will be imposed upon the lessor unless he can establish that the defect did not exist. This “burden of exculpating” himself does not obviate the necessity of plaintiff’s proving his case by a preponderance of the evidence. Accordingly, we cannot say, as claimed by plaintiffs, the trial judge erroneously placed a greater burden of proof on plaintiffs than is required in damage suits arising out of defects in premises.

Having so concluded, we are confronted with a question involving credibility of witnesses. Evidence as to the existence of the defect (the hole) is conflicting. The defendant testified that she had inspected the house on the morning following the Wards’ leaving the property, within a few days following the alleged incident. She stated that she had gone into the den (the room where the accident allegedly occurred) and had not observed any holes in the floor. Allen Vason and Fred Harris, who did repair work on the premises in September, 1974, after plaintiff Ward had vacated the premises, testified that no holes existed in the den floor. Debbie Conn, daughter of defendant, also testified that the floor was in good condition. Defendant also testified that Mrs. Ward had not complained to her about any problems with the floor.

Plaintiffs, on the other hand, testified that the child fell through a hole in the floor and they were injured when struck by loose boards when they attempted to rescue the child. However, plaintiffs’ credibility was weakened by inconsistencies between pretrial discovery depositions and testimony at trial. We might add that the medical evidence relating to the injuries sustained by the adults is suspect. Both sustained similar injuries to the same areas of the back and received similar prescribed courses of treatment by the same doctor to the same degree and were discharged at the same time. Dorean Ernest was discharged by the doctor indirectly through Mrs. Ward who conveyed the discharge message from the doctor to her.

Norbert Stanfield, the housing inspector employed by the Division of Housing Improvements of the City of New Orleans, who examined the premises on August 27, 1974, added little, if anything, to plaintiffs’ proof. He testified the floors were deteriorated and in hazardous condition, but he had no independent recollection whether there were any holes in the floor. Russell Dequesne, field supervisor over inspections for the Division of Housing Improvements, testified that the mere use of the term “deteriorated” without further specification does not indicate what type of condition existed in the floor, i. e., whether it contained holes or protruding nails or whatever. He added that specification is to be done by the inspector; and that one finding holes in the floor could add such a detailed description “as a write in” in conjunction with the general classification of the condition of the floor.

The evidence considered, we cannot say the trial judge erred in his factual conclusion that plaintiffs failed to show that “there was a hole in the floor through which a child fell and that two adults were injured when they went to the child’s aid”. When such a determination of fact is based on credibility of witnesses, as it is in our case, the findings of the trial judge will not be set aside absent manifest error. We find no such error. See Canter v. Koehring Company, 283 So.2d 716 (La.1973). Accordingly, the judgment is affirmed.

AFFIRMED.

      . LSA-C.C. art. 2695 reads as follows:
      Art. 2695. Lessor’s ability for damages from vices and defects
      “Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee: and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

      . LSA-C.C. art. 2695 (see footnote 1.), supra; Ambrosia v. Cherokee Insurance Company, 332 So.2d 559 (La.App. 4th Cir. 1976), writ denied, 337 So.2d 520 (La.1976); King v. Allstate Insurance Company, 224 So.2d 42 (La.App. 1st Cir. 1969), writ refused, 254 La. 808, 227 So.2d 144 (1969).

      . Jameson v. Employers Insurance of Wausau, 286 So.2d 785 (La.App. 4th Cir. 1973); Templin v. Traders & General Insurance Company, 288 So.2d 660 (La.App. 3d Cir. 1974).

      . LSA-C.C. arts. 670 and 2322. Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670 (1927); Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App. 3d Cir. 1966); Krennerich v. WCG Investment Corporation, 278 So.2d 842 (La.App. 3d Cir. 1973).

      . Dunn v. Tedesco, 235 La. 679, 105 So.2d 264 (1958); Jackson v. Insurance Company of North America, 243 So.2d 304 (La.App. 4th Cir. 1971).

      . Voncile Ward testified in pretrial discovery that the holes were approximately three to four inches in diameter when she first noticed them; at trial, however, she testified that they were “big holes” about the size of a “football or basketball” when first seen by her. In her deposition, she stated that the hole into which the child fell was about one foot in diameter; at trial, she testified that the hole was four feet by two feet in size. At trial, she stated that she had first seen the holes in December, 1972. When confronted with her deposition, in which she stated that she had first observed the holes in 1970, she recanted her earlier testimony. She further testified during her deposition that the accident had happened on the same day that she moved out of the property; whereas, at trial, she stated that she was not sure of the date of the accident, but that it had not happened on the day she moved.


author: REDMANN, Judge. STOULIG, Judge, SCHOTT, Judge, MORIAL, Judge,

text:
    James D. CRAWFORD v. AL SMITH PLUMBING AND HEATING SERVICE, INC., et al.
    No. 8058.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Granted June 1, 1977.

      Val A. Schaff, III, Schaff & Currier, New Orleans, for plaintiff-appellant.
    James L. Donovan, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG, SCHOTT, MORIAL and BEER, JJ.
   REDMANN, Judge.

Although other evidence might have supported a different result the medical evidence supports the trial judge’s conclusion that plaintiff, despite the many congenital and degenerative defects of his spine, was not totally and permanently disabled by his accident.

Dr. Byram on May 23, 1975 reported “there is no significant lasting disability at this time” and his deposition is consistent with that report.

Dr. Dunn on December 23, 1974 reported “I think he has recovered sufficiently to return to work”.

Dr. Ganucheau agreed with the description of his testimony as “due to the congenital defect Mr. Crawford is experiencing in the cervical and lumbar area you would preclude him from going back to the type of work he did before because of that type of congenital defect”.

Affirmed.

STOULIG, Judge,

dissenting.

I respectfully dissent.

Plaintiff, James D. Crawford, filed suit against his former employer, A1 Smith Plumbing & Heating Service, Inc., and its insurer, State Farm Fire & Casualty Company, to recover maximum workmen’s compensation benefits of $65 per week for a period of 500 weeks for a job-related accident that occurred on December 2, 1974 that left him totally and permanently disabled. In addition he sought penalties and attorney fees under R.S. 22:658 for the alleged arbitrary and capricious withholding of benefits.

After trial on the merits, the district court rendered judgment awarding plaintiff compensation benefits of $65 per week for 52 weeks, subject to a credit of $1,820 previously paid, and for medical expenses incurred to the date of the trial. Statutory penalties and attorney fees were denied. Plaintiff has appealed.

It is conceded that James Crawford, a roofer with 16 years’ experience, was injured during the course and scope of his employment. As he was lifting an 85-pound package of shingles, he felt something “pop and pull” in his back and he toppled backward to the roof’s surface. The shingles fell on his chest.

The issues before us are the extent of disability occasioned by this accident and whether benefits were arbitrarily withheld.

On December 9, 1974, plaintiff consulted his family doctor, Dr. Charles J. Ganucheau, a general practitioner, who noted marked muscle spasm in his cervical and lumbar spine. X rays indicated congenital anomalies in the neck and back skeletal structures. Dr. Ganucheau was of the opinion that the fall aggravated the congenital problems in the lumbar and cervical spine. He treated plaintiff with physical therapy and examined him periodically between this date and August 4, 1975 (83 office visits). Being of the opinion that plaintiff had received the maximum benefits of medical treatment, Dr. Ganucheau discharged him at that time with the admonition not to lift anything heavy in the future because of his weak back. This would prevent plaintiff’s returning to work as a roofer.

At the insurer’s request, plaintiff was examined by two orthopedists, Drs. George Byram and A. William Dunn. Their views conflicted. Dr. Dunn, who examined plaintiff on December 20, 1974, conceded the trauma aggravated a pre-existing congenital defect producing a painful spine condition that should have subsided in “a few days or at most a few weeks.” However, Dr. Byram, with whom I am more impressed, did not see plaintiff until February 20, 1975 — two and a half months after the accident — and he diagnosed the problem as acute cervical and lumbar strain.

At defendants’ request, Dr. Byram examined plaintiff intermittently during the next three months. On May 23, 1975, he suggested plaintiff might be able to resume work in a report to the insurer:

“He is still having neck and back pain, with generalized radiation into both legs. No upper arm radiation.
“On examination, he has full motion of the neck, with some discomfort. On examination of the lumbar spine, there is generalized tenderness. No sciatic tenderness. He has full range of motion. “He is being allowed to return to work on 6/1/75. He is to be rechecked here on a p. r. n. basis. I think he may continue to have some discomfort in his back on occasion, if he does any lifting. However, there is no significant lasting disability at this time.”

This report in itself might indicate plaintiff could resume his roofing duties and only occasionally experience discomfort in his back when he did lifting. However, Dr. Byram’s deposition established that as a result of this accident plaintiff is more susceptible to back injury now than he was prior to this incident. I quote his testimony:

“Q Had this man returned to work and was doing heavy lifting again, is there anything that would have made his back more susceptible to injury, going back a second time?
“A Well, I don’t think, it may have been perhaps slightly more susceptible than it was the first time because of the injury he sustained, but I think the changes were there, was still there and not changed or anything, maybe deteriorated a little more in the interval. The accident could have aggravated it to some degree, made him a little more susceptible, how much, I don’t know.”

As I understand his testimony, plaintiff, who had congenital lumbar and cervical spine anomalies making him more susceptible to injuries in these areas, sustained severe back and neck strain as the result of an accident he incurred on the job. When he reached maximum recovery from the trauma, he was not restored to his former condition. In fact he was more susceptible to injury after his accident than he was before. Dr. Byram admitted this. Dr. Ganucheau advised against engaging in any lifting activities. Both orthopedists felt compelled to advise plaintiff as to precautions he should take before lifting.

Under Louisiana jurisprudence, an employer takes a workman as he finds him and if an accidental injury triggers a latent condition resulting in disability, then the employee is entitled to workmen’s compensation benefits. Griffin v. Kelly-Springfield Tire Company, 316 So.2d 529 (La.App. 2d Cir. 1975). Where the aggravation ceases, and the workmen’s disability continues solely because of the pre-injury condition, then compensation is due only as long as the aggravation resulting from the trauma persists. Monistere v. Louisiana Department of Hospitals, 273 So.2d 594 (La.App. 1st Cir. 1973).

In this case plaintiff has not been restored to his pre-injury condition. The trauma left its mark, and while the degree of increased susceptibility to new injury cannot be gauged, it is nonetheless a permanent condition inflicted by a job-related accident. It is undisputed that plaintiff has not worked since the occurrence of the accident. Accordingly the judgment should be amended to increase the award to maximum benefits for total and permanent disability.

Further, the award of compensation for 52 weeks baffles me. If limited benefits were due, the logical point to discontinue would have been May 23,1975 (Dr. Byram’s limited discharge date), rather than December 2, 1975 (anniversary date of accident).

SCHOTT, Judge,

concurring.

The trial judge gave the following reasons for his judgment that plaintiff was not totally and permanently disabled:

“While he may be unable to perform the work which he was performing prior to the accident of December 2,1974, without some discomfort, the evidence does not indicate that plaintiff would be working in substantial pain.”

In Holmes v. Morville Plantation, Inc., 314 So.2d 752 (La.App. 4th Cir. 1975) we were confronted with a case where the medical testimony alone did not support a finding that plaintiff suffered pain from his injury which was substantial enough to be disabling but plaintiff’s testimony convinced the trial judge as to the degree of pain he suffered. We affirmed, recognizing that an evaluation of plaintiff’s credibility as he described the amount of pain was within the exclusive province of the trial judge. When a plaintiff says he is in pain this might be easily explained and demonstrated by medical experts but when he says that he is in such a high degree of pain so that it translates into substantial pain for workmen’s compensation purposes only he really knows and only the trial judge can decide whether he tells the truth or exaggerates.

There is testimony by Dr. Byram to the effect that plaintiff’s accident “could have aggravated [his congenital weakness] to some degree,” but he declined to say how much. In effect, he declined to classify plaintiff’s pain as substantial. Only the plaintiff himself testified that his pain was substantial, but unlike the plaintiff in the Holmes case he did not convince the trial judge.

A reversal of the judgment of the trial court would be contrary to the Supreme Court’s opinion in Canter v. Koehring, 283 So.2d 716 (1973). The testimony of the three physicians quoted in the majority opinion furnished the trial judge with a reasonable factual basis for his finding that any discomfort suffered by plaintiff as a result of his accident was not of such a degree as to constitute substantial pain.

There is conflict in the testimony, not only between plaintiff and the physicians but also within the testimony of the physicians themselves. As discussed in the Canter case, even though our own evaluations and inferences may be as reasonable as the trial judge’s and we may conclude that plaintiff was permanently disabled because he is now working in substantial pain, the Canter case prevents us from disturbing the trial judge’s conclusion to the contrary.

This approach is much the same as the one taken in Laborde v. Martin Lumber Company, Inc., 316 So.2d 440 (La.App. 3rd Cir. 1975), Writ refused La., 320 So.2d 207.

I concur in affirming the judgment of the trial court.

MORIAL, Judge,

dissenting.

I dissent for the reasons assigned by Stoulig, J.


text:
    Claude KNIGHT, Jr. v. SOUTHEASTERN CHEMICAL CORP. et al.
    No. 8148.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Taylor, Porter, Brooks & Phillips, William A. Norfolk, Baton Rouge, for defendant-appellant.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   MORIAL, Judge.

Defendant appeals from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability resulting from a traumatic neurosis condition. We affirm.

Plaintiff was injured in the course and scope of his employment with defendant on June 23,1975. While attempting to clean a chemical vat he slipped and struck his neck and back on a horizontal bar. Plaintiff alleged that the resulting injury permanently disabled him from engaging in work of a reasonable character without substantial pain. Defendant denied that the injury was work related and contested plaintiff’s disability.

Plaintiff was taken to defendant’s doctor, Dr. Robert Albrecht, immediately after the accident. Dr. Albrecht prescribed diathermy treatments and muscle relaxants. He told plaintiff he could return immediately to the job.

Plaintiff saw Dr. John Schumacher, a neurological surgeon the next day. He found that plaintiff had a moderate cervical and lumbar strain. By late July, Dr. Schu-macher found that plaintiff’s back was improving, but plaintiff continued to complain of back pain as well as headaches, dizziness, eye and throat irritation and constant bowel problems. The doctor opined that plaintiff’s complaints were psychosomatic in nature but felt that he was not qualified to determine if the anxiety syndrome was real or fabricated. He thought such a determination should be made by a psychiatrist.

Dr. F. J. Padua, a general practitioner saw plaintiff approximately seventy-two times after an initial visit on June 25, 1975. Dr. Padua originally treated plaintiff for his neck and back injuries but testified that all objective symptoms had subsided by December 1975. However, he continued to treat plaintiff because he thought Knight was emotionally unstable and possibly suicidal. He did not believe that plaintiff was a malingerer but that he had suffered a traumatic neurosis after the accident which manifested itself by multiple physical complaints. The doctor testified that his file was filled with numerous papers on which plaintiff kept a daily record of his complaints and bowel patterns. He testified that plaintiff’s fixation with his bowel habits was not uncommon for a person who needs psychiatric treatment. He felt plaintiff was in need of such treatment.

Dr. Joshua Carey, a neurologist, saw plaintiff four times between September 1975 and January 1976. He also treated plaintiff for his neck and back problem. He could make no objective findings after December 1975. However, during the treatment period he noted plaintiff’s extreme depression and testified plaintiff shook all over. He believed plaintiff’s complaints were genuine and that he had an emotional problem necessitating psychiatric treatment. He felt plaintiff was physically capable of working, but unable to do so because of his depression and emotional problems.

Dr. Dirk Ory, a general practitioner and surgeon saw plaintiff some twenty times between September and November 1975. He stated that plaintiff’s complaints increased as the treatment continued and that he became increasingly depressed. He thought plaintiff was displaying psychiatric symptoms and was in need of psychiatric care. He felt plaintiff’s complaints were legitimate and that he was not a malingerer.

Dr. Charles Smith, a psychiatrist saw plaintiff twice on February 16 and March 1, 1976. He felt that plaintiff had an abnormal psychological condition which pre-exist-ed his accident. However, he was of the opinion that the accidental injury was a stressful event in plaintiff’s life which lead to a personality regression and anxiety syndrome manifested by somatic preoccupation. Dr. Smith did not feel that plaintiff was able to return to work or that his condition would improve without further psychiatric treatment.

Dr. Kenneth Ritter, a psychiatrist saw plaintiff at defendant’s request on March 12 and April 2, 1976. He did not feel that plaintiff manifested the mental components of anxiety. He diagnosed plaintiff’s problem as a compensation syndrome which would only be cured by a monetary award or psychiatric intervention.

Plaintiff testified that he had not previously suffered from any of the physical problems that developed after the June 23, 1975 accident. He testified he had not been treated for any mental problems. He was questioned extensively by defense counsel about his past work history. He admitted to being out of work for a period of months at certain intervals between fall 1969 and March 1974. However, he stated that during that period he had made numerous unsuccessful job applications. He was also in the Army from June 1970 until January 1972. He admitted to dropping out of Southern University in 1969 because a campus demonstration had upset him. The defense counsel placed special significance on plaintiff’s comment that his mind went blank and he began to meditate on his future after that event.

The only other lay testimony was that of plaintiff’s foreman and manager at Southeastern. They testified that plaintiff had received two promotions in the ten months he was with the company, but that his work as an operator had not been satisfactory and that he had been told that if his work did not improve he would be discharged.

Defendant argues that plaintiff failed to prove that he was totally and permanently disabled by a preponderance of the evidence. Defendant argues that none of the medical doctors could diagnose the cause of plaintiff’s complaints and that the testimony of one psychiatrist, Dr. Smith, alone was insufficient evidence. Defendant contends that the trial judge erred in failing to take into account Dr. Ritter’s testimony. Defendant also argues that plaintiff failed to prove that his mental disability was causally connected to the accident and that he did not have a pre-existing mental condition. Defendant also contends that the fact that plaintiff was frequently out of work indicates that he is a malingerer.

When a claimant seeks workmen’s compensation for traumatic neurosis, such condition must be proven, as in any other disabling injury, by a preponderance of the evidence. Such condition must not only be shown to exist, but also that it was causally connected to the work related accident. Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3 Cir. 1975).

We conclude that the trial judge was correct in finding that plaintiff proved his case by a preponderance of the evidence. We do not find any error on the part of the trial judge in according greater weight to the testimony of plaintiff’s four treating physicians and Dr. Smith than he did to that of Dr. Ritter. The evidence clearly supports a conclusion that plaintiff developed an anxiety syndrome as a result of his work-related injury. Guillory v. Travelers Insurance Company, 326 So.2d 914 (La.App. 3 Cir. 1976). Morris v. Argonaut Insurance Co., 261 So.2d 344 (La.App. 1 Cir. 1972). We find no evidence that plaintiff displayed any abnormal mental condition prior to the accident. Plaintiff held several jobs, served in the Army for two years and was honorably discharged, and had worked for ten months for defendant company. During the ten month period he received two promotions. We also cannot give any weight to defendant’s argument that it was abnormal for plaintiff to meditate on his future after leaving school. Nor can be accept defendant’s contention that plaintiff is a malingerer.

While it is true that where a plaintiff is claiming compensation on the basis of traumatic neurosis, we must carefully scrutinize the record for unjustified claims, we must also guard against the danger of denying recovery to a deserving plaintiff. Muse v. Sentry Insurance Co., 269 So.2d 609 (La.App. 3 Cir. 1972). Awards for mental afflictions are permitted where the record discloses plaintiff to be honest, sincere and truthful. Smith v. Wiley Wood Construction Company, 247 So.2d 904 (La.App. 4 Cir. 1971). We find nothing in this record to cause us to doubt plaintiff’s veracity. Plaintiff consistently made the same complaints to all the doctors who treated and evaluated him. Except for Dr. Ritter, who saw plaintiff twice, all of the doctors were of the opinion that plaintiff’s complaints were genuine and caused by his emotional problems. As Dr. Padua testified, the multiplicity and repetition of plaintiff’s subjective complaints supported an objective finding of a mental problem. We also give great weight to the findings of the trial judge with regard to the credibility of plaintiff. Canter v. Koehring, La., 283 So.2d 716 (1973).

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    Diane POTTS et al. v. Larry J. HOLLIER et al.
    No. 8266.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      Noble, Slaughter, Clayton & Lorenz, J. Edgar Clayton, Jr., New Orleans, for plaintiffs-appellants.
    Wiedemann & Fransen, Lawrence D. Wiedemann, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiffs, Diane Godfrey and Richard Godfrey, individually and as administrator of the estates of his minor children, Dawn and Eric Godfrey, have appealed a judgment seeking an increase in quantum for general and special damages they incurred in a chain reaction collision on the Interstate 10 overpass at Transcontinental Drive in Metairie, Louisiana. Defendants, Larry J. Hollier; Larsen Motor Lines, Inc.; and United States Fidelity and Guaranty Company, have answered the appeal to question the conclusion that the driver Larry J. Hol-lier was negligent.

We affirm on liability. We find as a fact that on July 5, 1973, Elijah Wilson, while driving a loaded cement mixer truck westbound on Interstate 10, stopped at the crest or on the ascending portion of the Transcontinental overpass to avoid hitting a metal drum that had fallen from a pickup truck traveling in front of him. . Three other drivers proceeding in the center lane behind the truck brought their vehicles to a stop behind it; however, Hollier, driving a bobtail truck and also proceeding westward in the center lane, failed to stop before striking in the rear the car in which plaintiffs were riding. The severity of the impact is demonstrated by the fact that one of its wheels ran over and crushed the roof of the Godfrey vehicle before the truck overturned in the right traffic lane, after which it came to rest on its side against the overpass railing. The Godfrey car then smashed into the vehicle before it, which in turn hit the car behind the cement truck and propelled it under the mixer.

The accident occurred because Hollier was driving too closely behind the God-frey car in violation of the duty imposed by L.R.S. 32:81(A). This statute, enacted as a safety measure to protect life and property on the highways of our State, is designated to eliminate the type of accident from which this litigation arises. Under Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970), Hollier is negligent per se.

Parenthetically we note that the defense of sudden emergency is not available if the motorist fails to exercise the degree of care that a prudent person would use to extricate himself from the situation. See Dean v. Orgeron, 195 So.2d 150 (La.App. 1st Cir. 1967). Because the truck stopped at the crest or near the top of the ascending roadway in full view of following motorists and because three other vehicles traveling near the 55-mile-per-hour speed limit succeeded in stopping their cars behind the truck, their success in responding to the danger establishes what constitutes a reasonable effort to avoid a collision under these circumstances. Hollier’s failure to stop cannot be excused on a sudden emergency theory. Hunter v. American Employers Insurance Co., 153 So.2d 588 (La.App. 4th Cir. 1963).

We next consider quantum. First appellants contend the general damages awarded are insufficient. We conclude the awards to the children for the minimal injuries are adequate.

Eric Godfrey was awarded $1,000 for the cuts and bruises and the lumbar and thoracic muscle strain he experienced in the accident. In a report issued four months after the accident, his treating physician termed his recovery uneventful.

Dawn Godfrey was awarded $800 for cuts and bruises on the head, face, neck and shoulder.

Richard Godfrey suffered cervical and lumbar strain as a result of this accident. In addition he had chondromalacia of the patella. His treating orthopedist projected he would suffer intermittent neck and back pain for a total of nine months and trouble with his knee for 18 months to two years after the accident. While we think an award of $4,000 is less than munificent for this degree of pain and suffering, our appellate review is limited to adjusting awards that clearly constitute an abuse of the much discretion vested in the trial judge by C.C. art. 1934.

Finally we affirm the $6,000 general damage award to Mrs. Diane Godfrey, who suffered cervical strain that subsided in eight months after the accident, multiple lacerations with scarring and a deviated septum. The testimony as to the scarring is inconclusive because the plastic surgeon who examined Mrs. Godfrey four months after the accident found her considerably improved when he saw her at the trial. Admittedly his examination was cursory when he testified because a full examination required disrobing. The doctor’s offer to reexamine the plaintiff while the trial was in progress was not accepted by her counsel. Having failed to avail herself of the opportunity to update the evidence to establish the degree of permanent scarring, we will not second-guess the assessment of the trial judge, who had an opportunity to view the plaintiff.

We next consider appellant Richard Godfrey’s prayer for an increase of special damages. In part his argument hinges on what weight, if any, we assign to a unilaterally executed document entitled “General Stipulation of Facts” filed before the trial. Counsel for appellants contends he filed this document at the instruction of the trial judge. It is only signed by him and was mailed to counsel for the other litigants, with the notation that any oppositions or amendments must be received within seven days of the date it was mailed.

The stipulations were apparently overlooked during the trial because evidence on some of the items of damage stipulated was heard. After judgment was rendered, plaintiffs sought to have it amended to include certain items contained in the stipulation, specifically wages lost by Mrs. God-frey totaling $923; luggage and camping equipment, $900; and lost wages of Richard Godfrey for $1,390.17, rather than the $1,000 awarded. Appellees deny so stipulating. The trial judge denied amending the judgment because the time for applying for a new trial had elapsed. In written reasons he stated his denial for amendment was strictly on procedural grounds.

Because the record fails to substantiate the stipulation was in fact made and in the interest of achieving a just result we remand this matter for further proceedings to permit plaintiffs to prove: (1) the amount of wages Mrs. Godfrey lost as a result of her injury; (2) the value of the personal belongings destroyed in the wreck; and (3) the exact amount of net income Mr. Godfrey lost as a result of this accident. Godfrey’s testimony deals only with gross income and he is entitled to recover net income after taxes. Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir. 1974). The $1,000 lost wages awarded is speculative because there is no evidence as to what amount of tax Mr. Godfrey pays.

For the reasons assigned the judgment appealed from is affirmed as to awards of general damages and special damages not discussed in this opinion. It is ordered that this matter be remanded for the limited purpose of permitting plaintiff to adduce evidence as to Mrs. Godfrey’s lost wages, the loss of personal property and Mr. God-frey’s actual net income so that the trial judge may make any appropriate amendment to the award of special damages in the three areas enumerated. Each litigant is to bear his respective costs of this appeal.

AFFIRMED IN PART; REMANDED.