text:
    BURTHLONG v. HUBER.
    No. 17631.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.
    J. L. Warren Woodville, of New Orleans, for appellant.
    Wm. H. McClendon, Jr., of New Orleans, for appellee.
   SIMON, Judge.

Mrs. Ida Burthlong was injured by an automobile owned and operated by Clarence Huber on April- 13, 1940, and died as a result of her injuries on July 7, 1940.

Subsequently, decedent’s major child, admittedly her sole heir, brought suit against' the said Huber to recover $5,000 damages for the loss of companionship and affection caused him in consequence of the fatal injuries inflicted upon his mother. Plaintiff’s petition affirmatively concedes that his deceased mother also left a surviving spouse.

The learned judge, a quo, dismissed plaintiff’s suit on an exception of no right and no cause of action, from which this appeal is prosecuted.

The exception of no right and no cause of action, leveled at the .claim of this major child, is based on the ground that, under the provisions of Article 2315 of the Civil Code, the deceased mother, having left a surviving spouse, the latter’s rights are exclusive and preferred to the asserted rights of a major child.

Plaintiff concedes that, under the first paragraph of Article 2315 of the Civil Code, he has no right or cause of action, the survivors, therein named, inheriting that which accrued to the deceased, prior to her death, in an alternative preferem tial order. He contends, however, that a right to recover for the loss and damage which he personally sustained, as a result of the death of the deceased, is granted him by reason of the provisions of the third paragraph of the codal article, supra, which reads as follows:

“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be.”

In other words, plaintiff contends that the article of our Civil Code, supra, creates two distinct and separate causes of action; that the provisions of the first paragraph provide a cause of action for such suffering and pain the injured person endured, and, as such, is restricted to the surviving beneficiaries in the order and preference therein fixed; and that, under the provisions of the third paragraph, a second separate and distinct cause of action is afforded the named survivors for loss of companionship, love and affection, grief and personal pain occasioned, not in the order of alternative preference, but available severally to any and all of the named beneficiaries.

These contentions involve the construction to be applied to the provisions of Article 2315 of the Civil Code, which, as it presently reads, gives a right of action for damages for the death of a person in addition to the right of action in favor of certain surviving relations for damages for personal injuries suffered by one who thereafter died. As originally enacted, the article merely declared:

“Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it.” (Art. 2294.)

Prior to 1851, no suit was litigated in this state involving an action for the recovery of damages resulting from the ■wrongful death of another, the first case, that of Hubgh v. New Orleans & C. R. R. Co., 6 La.Ann. 498, holding that, without a specific statute authorizing such an action, no recovery could be had. This decision provoked an amendment to the codal article, supra, Act 223 of 1855, by adding thereto: “ * * * the right of this action shall survive in cases of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death.”

As thus amended, this article became Article 2315 of the Revised Civil Code of 1870. It is to be observed that, under its then existing provisions, it gave a right of action to the named survivors for only such pain and suffering as the injured person had endured, giving no right of action for any loss or injury suffered by a surviving relation as a result of the death of the person injured.

This was remedied by an amendment carried in Act No. 71 of 1884 by adding the following paragraph:

“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be.”

By Act 120 of 1908, the brothers and sisters, or either of them, in default of the survival of the preceding named beneficiaries, were extended the same right of action. This amendment contained the proviso that “should the deceased leave a widow together with minor children, the right of action shall accrue to both the widow and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there [is] no surviving widow or minor child or children”.

To cure the palpable error of the Legislature, made evident by a subsequent decision of our Supreme Court (Flash v. Louisiana Western Railroad Company, 137 La. 352, 68 So. 636, L.R.A.1916E, 112), the article was further amended by Act 159 of 1918 extending to a surviving husband the same right of action that was heretofore given to the widow as a result of the death of the spouse injured by the fault of another. The last amendment to this codal article, supra, is to be found in Act 159 of 1932, extending a similar right of action in favor of an adoptive parent or parents, or adopted persons. Article 2315 of the Civil Code, accordingly, reads as follows:

“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters, or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.
“If the above right of action exists in favor of an adopted person, such right of action shall survive in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, and in default of any of the above persons, then in favor of the surviving children of the adoptive parents, or either of them, and in default of these in favor of the surviving father and mother of the adopted person, or either of them, and in default of these, then in favor of the surviving brothers and sisters of the adopted person, or either of them, for the space of one year from the death.
“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be.”

The construction which plaintiff seeks to have placed on this codal article has been previously reviewed and determined by our courts. In the case of Reed v. Warren, 172 La. 1082, 136 So. 59, the Supreme Court with Chief Justice O’Niell as its organ, exhaustively reviewed the history of this codal article from the date of its original enactment. In that case the court decided that only a single tort is created where death is caused by the fault of another, namely, the killing of one person, and that only one cause of action arises for the loss or damages occasioned thereby. In the course of the opinion, the court declared that the purpose of the amending Act, No. 71 of 1884, was merely to give to the named survivors, who were given a right of action by Act 223 of 1855, (the right of action provided for in the first paragraph of the codal article) the additional right to recover, in the same suit, the damages suffered as a result of the death of the person injured; the court further holding that, there being one tort, the right of recovery of damages, in either or both instances, is dependent upon the same relevant facts and subject to the same defenses, and thus gives rise to only one cause of action. Norton v. Crescent City Ice Mfg. Company, Inc., 178 La. 135, 150 So. 855.

Accordingly, the codal article, in effect, granting to certain named beneficiaries one cause of action for the recovery of either one or both elements of damage, this right of recova ery in either or both instances — damages which the deceased suffered as distinguished from that suffered by the survivors, by the death of the person injured— is regulated and prescribed. This order of preference in favor of the named beneficiaries is conclusive. The original right of recovery granted is predicated upon the right of inheritance, the second element of damages recoverable being personal to the survivors. The right of action given in the second instance (personal to the survivors) is purely additional, or supplementary to, and is dependent upon and connected with that given to the named survivors who inherit the right of action of the deceased. Both elements finding their sustenance from one tort, it follows that the status of alternative preference, once accruing, immediately excludes those of a secondary or more distant class. That being true, one seeking recovery of damages personal to him, enjoys no such right unless he comes within one of the alternative preferences given those who have a right of recovery on the survived action of the deceased.

The article of the Civil Code, supra,, here invoked, declares that the right of action for damages, in case of death of the injured person, shall accrue to the major children only in those cases where there is no surviving spouse, or minor child or children.

Plaintiff’s petition, having affirmatively alleged that his deceased mother left a surviving spouse, who thus has a preferred action to the exclusion of the surviving major child, he accordingly fails to disclose a right of action for the elements of damage claimed in this instance. Marshall et al. v. Louisiana State Rice Milling Company et al., 144 La. 828, 81 So. 331; Kerner v. Trans-Mississippi Terminal R. Company, 158 La. 853, 104 So. 740; Horrell v. Gulf & Valley Cotton Oil Co., Inc., 15 La.App. 603, 131 So. 709; Dupuy v. Godchaux Sugars, Inc., La.App., 184 So. 730; Thornton et al. v. Peak et al., La.App, 191 So. 182.

For the reasons assigned, the judgment of the lower court, sustaining the exception of no right of action and dismissing plaintiff’s suit, is accordingly affirmed, at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    ITEM CO., Limited, v. GOURGEOT et al.
    No. 17074.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.

      Deutsch and Kerrigan and Lehman K. Preis, all of New Orleans, for plaintiff •and appellee.
    Defendants and appellants unrepresented.
   JANVIER, Judge.

On March 14, 1938, the Item Company, Ltd., entered into a contract with Maxin Gourgeot under which it granted to him the exclusive right to deliver its newspapers to subscribers in a certain designated territory in New Orleans. Aimee ■Garidel and Martin J. Milhas signed the contract as sureties for Gourgeot up to the sum of $100.

On June 28, 1938, Item Company, Ltd., > brought this suit alleging that Gourgeot had failed to make certain payments and to keep certain records, and that by those failures he had breached the said contract, and had thus made himself liable for the amounts due and for liquidated damages, which damages under the terms of the ■contract, it contended should be fixed at $152.50. The amounts for which it alleged payment had not been made totalled $55.20. It therefore prayed for judgment against the said Gourgeot and his sureties in the sum of $207.70, with interest at 5% from judicial demand.

There was judgment by default in the sum of $100 against Milhas, one of the sureties, and after a trial there was also judgment in the sum of $207.70 against Gourgeot, and in the sum of $100 against Garidel, the other surety. From this latter judgment Gourgeot and Garidel have appealed.

The appeal of Garidel was dismissed on motion and the matter came before us only on the appeal by Gourgeot. The evidence shows, without any substantial contradiction, that Gourgeot did not remit to plaintiff the amount set forth in the statement filed by plaintiff and did not keep the proper records of the names and addresses of subscribers as required by the contract. It follows that as a result of the breach of the contract, plaintiff is entitled to liquidated damages as stipulated in the contract and as prayed for.

We are advised by counsel for plaintiff that there has been paid by the surety $198.45 and by Gourgeot $25 making a total of $223.45. There should be a credit on the judgment for the said amount.

The judgment appealed from, in so far as it runs against Gourgeot, is affirmed at his cost, subject to a credit of $223.45.

Judgment affirmed.


author: WESTERFIELD, Judge. SIMON, Judge

text:
    MACOMBER v. DE BARDELEBEN COAL CO., Inc.
    No. 17546.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.
    Rehearing Denied Dec. 1, 1941.
    Writ of Certiorari Granted Jan. 5, 1942.

      Montgomery, Montgomery & Fenner, of New Orleans, for appellant.
    R. A. Dowling and J. J. Jackson, both of New Orleans, for appellee.
   WESTERFIELD, Judge.

This suit is brought under an Act of Congress, Section 33 of the Merchant Marine Act of 1920, 46 U.S.C.A. § 688, popularly known as the “Jones Act”. Mrs. Lola Macomber, as administratrix of the succession of her late husband, John B. Macomber, proceeding in the Civil District Court for the Parish of Orleans, against the De Bardeleben Coal Company, Inc., the owner and operator of the steam tug “Clara”, claimed $28,435.20 as damages, said to be due because of the death of her husband, by drowning, which is alleged to have been occasioned by the negligence of the master and crew of the “Clara”. Plaintiff’s husband was drowned in a navigable stream, the “Intercoastal Canal near Bay Wallace”, when he fell from a ladder on which he stood while “swoogying” (cleaning) the smokestack of the tug boat. Defendant removed the case to the Federal Court for the Eastern District of Louisiana, which court, upon motion of the plaintiff, remanded it to the Civil District Court. The charges of negligence, as set forth in the petition, are as follows:

“(a) In failing to furnish a safe ladder with the necessary safety cleats to keep it from slipping.
“(b) In not having a competent deck hand to work with your petitioner’s decedent, and one who would attend his duties and not allow a ladder on which a man was working to slip and fall.
“(c) In employing as a co-worker to decedent an incompetent man who failed to render any assistance to decedent to prevent his drowning, although life preservers were available and could have prevented the tragedy.
“(d) In that both the officers and crew failed to throw a life preserver, which was available to decedent or do anything to assist him although having the means and equipment necessary to do it.”

Denying that its employees had been guilty of negligence, the defendant, in the alternative, pleaded contributory negligence on the part of Macomber.

A jury returned a verdict in plaintiff’s favor in the sum of $7,269.40. From the judgment based upon this verdict defendant has appealed.

The primary question for our consideration is whether the defendant’s employees were guilty of negligence. Contributory negligence on the part of the deceased would not prevent, but only modify, recovery, because the Jones Act recognizes the doctrine of comparative negligence (Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Ducombs v. Lykes Bros. S. S. Co., Inc., La. App., 1 So.2d 114 and Volume 1 of the Law of American Admiralty by Benedict, 6th Edition by Knauth, Page 51) which, we might add, once obtained in this State. Article 2323, Revised Civil Code of 1870; 11th Tulane Law Review, 112; Fortunich v. City of New Orleans, 14 La.Ann. 115.

There appears to be no dispute as to the facts. Macomber and Leonard F. Edge-combe were seamen on the steam tug “Clara” and were engaged in conversation while seated on her deck, when Macomber remarked that the smokestack was dirty or, as Edgecombe says Macomber put it “damn it is dirty”, whereupon they procured a ladder, placed it against the smokestack and Macomber ascended it and began “swoogy-ing” the surface of the stack. As he started to descend the ladder with one hand on the guy wire supporting the stack and the other on the upright of the ladder, his foot missed a rung, he released both hands and fell over backwards to the deck, slipping through the boat’s rail into the water. Edgecombe, who had been holding the ladder, seeing him fall, dropped it and unsuccessfully attempted to grab him before he went over the side of the tug. He was the only eyewitness.

There is no evidence to the effect that the ladder was unsafe or that it was allowed to slip when Macomber was on it.

However, it has been proven that no life preserver was thrown to Macomber and if the defendant’s employees can be said to be negligent, it) must be upon this account.

At the time of the accident the “Clara” was moving at the rate of about seven miles per hour against a head wind, calculated by several witnesses, to be blowing at the rate of two miles per hour. The weather was clear and the water calm. The boat was proceeding on an even keel. When he saw Macomber go over the side of the vessel, Edgecombe, fearing that he would be struck by the wheel, called to A. A. Smith, who was in charge of the wheelhouse, “man overboard”. Smith and Edward J. Angelo, the Captain, who had heard the cry, ordered the engines reversed or “full speed astern”. The first time that Macomber was seen after he fell from the vessel he was struggling in the water about three hundred feet to the rear. It is contended that Edgecombe should immediately have thrown a life preserver over to Macomber. According to the testimony of the Chief Engineer, it could have been thrown into the water in about a minute. Instead of throwing the life buoy Edgecombe and other members of the crew lowered the life boat and attempted to rescue Macomber. A singular and unfortunate aspect of the case is that Macomber could have saved himself by swimming about thirty feet to shallow water on the side of the canal, but the testimony is that he was apparently trying to swim to the boat which was moving down the center of the canal.

Smith testified that if the life preserver had been thrown immediately, Macomber would have been obliged to swim at least one hundred feet before he could get it; because of the rate at which the vessel was traveling and the wind blowing. It is estimated that the boat with its headway, when added to the tide caused by the wind, would have been eleven feet away from Macomber in one second.

It is elementary that no negligence can be imputed to the defendant for the failure of the crew to throw the life buoy unless such failure was a causative factor in the drowning of the deceased. No authorities are necessary to support this well established principle of the law of negligence.

Plaintiff’s counsel cite a number of authorities to the effect that it is the duty of the ship and the owner under the law of the sea to rescue a seaman who fall§ overboard, and that the ship is liable to respond in damages if the seaman is abandoned to his fate. Brown v. Donolo, D.C., 4 F.Supp. 727; Harris v. Pennsylvania R. R., 4 Cir., SO F.2d 866; United States v. Knowles, Fed.Cas.No.15,540, 4 Sawy. 517; Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082.

Harris v. Pennsylvania R. R. Company, supra, is a case in which the Circuit Court of Appeal for the Fourth Circuit reversed the finding of a district judge directing a verdict, where the evidence showed that the crew of a vessel failed to throw a life preserver to a fireman who had ¿alien overboard. When the fireman fell into the-water he was fifty feet from the stern of the ship, which was moving forward at about the pace of an ordinary pedestrian. Instead of throwing a life buoy overboard, a member of the crew threw a six inch hawser. The court, in its opinion, said [50 F.2d 869]: “* * * it was for the jury to decide whether the man could have been saved if due diligence had been used. The deceased, even when last seen, was within 200 feet of the point at which a life ring, if promptly thrown, would have rested on the surface of the water. He was evidently making every possible effort to save himself. Whether in any event he would have succeeded is not a certainty, but in our view there was enough testimony tending to show a reasonable probability of rescue, had a life ring or heaving line been used, to justify the submission of the question to the jury.”

But the facts in this case are different. Here the boat was going much faster than a pedestrian walks and it would seem that there would have been a better chance to reach the drowning man with a life boat than with a life preserver which, according to the evidence, could only be thrown about thirty-five feet. Edgecombe, the only one of the crew who was in a position to throw the life buoy within a reasonable time after Macomber went over the side, did not do so because his first thought was the imminent peril confronting Macomber because of the revolution of the propeller with which he might have become entangled. Then too, the ladder, when released by Edgecombe, fell in his path and delayed him some. He also attempted to grab Macomber as he slipped through the railing which further delayed him. We are convinced that by this time Edgecombe could have accomplished nothing by casting the buoy overboard. We cannot* say that what he did do in the emergency was not better calculated to effect a rescue than what he left undone. Edgecombe and Macomber were very good friends. They had been on other ships together, consequently, there was every reason why he should apply himself to the rescue with extraordinary vigor. He had only a few seconds to decide upon his course and if, in the emergency, he erred, we do not believe it can be said that he was negligent.

Our attention has been directed to the case of Kirincich v. Standard Dredging Company, 3 Cir., 112 F.2d 163, 164. In that case recovery was allowed because the crew of the vessel were negligent in failing to throw a life preserver to a seaman in the water, but the facts are quite different. There the seaman, was struggling in the water about twenty yards from the bow of a derrick barge from which he fell, crying for help. The crew threw “heaving lines” in his direction, repeating the operation three times, and, at one time, coming within two feet of the drowning man. There the Court said:

“In the light, then, of this logic and these examples, would Kirincich have drowned even if a larger and more buoyant object than the inch heaving line had been thrown within two feet of him? If he could swim, even badly, there would be no doubt. Assuming he could not, we think he might (the appropriate grammatical mood) have saved himself through the help of something which he could more easily grasp. We can take judicial notice of the instinct of self-preservation that -at first compensates for lack of skill. A drowning man comes to the surface and cluthes at what he finds there — hence the significance of size and buoyancy in life saving apparatus.”

The situation prevailing in this case is quite different. When it is all said and done it is difficult to understand how Ma-comber fell into the water and why, after falling, he was not able to rescue himself. We cannot understand and there is no explanation in the record why he should have released his hold of the guy wire and the ladder when his foot, slipped through the rung, nor does there appear any explanation of his failure to save himself after falling, since he was within thirty-five feet of shallow water. The captain testified that the channel, in which they were running, was one hundred feet wide and was marked by beacons, which indicated the shallow water. Macomber fell overboard near Beacon No. 32, marking the edge of the deep water. The tug, from whose deck he fell, was twenty-one feet wide so it is apparent that he would have had but a short distance to swim to save himself. The captain expressed the opinion that Macomber did not know how to swim as a possible explanation. If this be true there was no chance of his swimming to a life buoy, which could not have been thrown in time to be anything like as near to him as the shallow banks of the canal.

Our conclusion is that the charge of negligence has not been sustained by the evidence, consequently plaintiff’s case must fail.

Counsel, however, contends that we cannot go into the sufficiency of the evidence or reverse the judgment on the facts as found by the jury and in no event can we do more than reverse the judgment based upon the jury’s verdict and remand the case for a new trial, this, because the Federal Appellate Courts are said to be so restricted.

Under the Jones Act the personal representative of a seaman killed in the course of his employment may, at his election, “maintain an action for damages at law against his employer, with the right of trial by jury, and in such action, all statutes of the United States conferring or regulating the right of action for death in the case of railway employees are applicable”. Benedict on Admiralty, 6th Edition, Volume 1, Page 44. Such actions “may be brought in the Federal or State Courts or, in personam, in Admiralty, but not in rem. Wherever brought they may not be removed. When brought in the Federal Courts jurisdiction is vested in the Court of the District in which the defendant employer resides or in which his principal office is located.” Ibid 44, 45.

Originally some confusion arose concerning the jurisdiction of the state courts due to the wording of the provision in the act to the effect that “jurisdiction in such actions shall be under the Court of the District in which the defendant employer resides or in which his principal office is located”. It was contended that the act in referring to the courts of the district “manifested a purpose to restrict enforcement of the newly given rights to the Federal District Courts”. The Supreme Court of the United States, however, while admitting some ambiguity, said:

“We think it falls short of that certainty which naturally would be manifested in making an intended departure from the long-prevailing policy evidenced by the saving clause in the Judiciary Act of 1789 and in the two sections of the Judicial Code, and that the more reasonable view is that it is intended to regulate venue and not to deal with jurisdiction as between federal and state courts. Panama R. Co. v. Johnson, supra [264 U.S. 375], pages 384, 391 [44 S.Ct. 391, 68 L.Ed. 748]; [In] re East River Co., 266 U.S. 355, 368, 45 S.Ct. 114, 69 L.Ed. 324; Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (decided April 12, 1926)”. Panama Railroad Company v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 597, 70 L.Ed. 1085.

In Engel v. Davenport [271 U.S. 33, 46 S.Ct. 412, 70 L.Ed. 813], it was definitely held, that:

“It is clear that the State courts have jurisdiction concurrently with the Federal courts, to enforce the right of action established by thé Merchant Marine Act as a part of the maritime law.”

The plaintiff elected to bring her suit in the state court. It is elementary that in matters of procedure the law of the forum governs.

“In matters of procedure, or as sometimes stated, in matters of remedial rights, it is clearly settled that every case must be governed by the law of the place where the remedy is sought, even as to rules of evidence and rules of practice.” American Jurisprudence, Volume 11, Sec. 186, Page 498.

In Louisiana under Article 7, Section 19 of the Constitution of 1921, it is provided that in all appeals to the several Courts of Appeal of this State the appeals shall be both upon law and facts. Article 905 of the Code of Practice provides that “when the Supreme Court [the article also applies to the Courts of Appeal] reverses the judgment of an inferior court, it shall.pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively”.

Where the verdict of a jury, based upon facts alone, is clearly erroneous, it will be reversed. Lewis v. Louisiana & Northwest R. Co., 2 La.App. 176; Chisolm v. Roppolo, 2 La.App. 269; Bass v. Illinois Central R. Co., 4 La.App. 175; Hardee v. Nevers, 10 La.App. 537, 120 So. 227 and Hebert v. New Orleans Public Service, 10 La.App. 341, 119 So. 575.

In the Hebert case we said: “We are very reluctant to disturb the jury’s finding and substitute therefor our own conclusions upon the facts as they appear in cold type in the record, without the opportunity of seeing and hearing the testimony from the living lips of the witnesses. We fully appreciate the advantage possessed by the jury in reaching their conclusion and are conscious of our own limitations in that regard. Nevertheless, under our peculiar (and to the mind of the writer, unfortunate) system of jury trials in civil cases, it is our duty to set aside a judgment based upon the verdict of a jury whenever it appears to us erroneous, and to substitute therefor such judgment as in our opinion should have been rendered, whether -the case turn upon a question of fact or of law.”

We find nothing in the Jones Act which conflicts with the Louisiana Law of Procedure and nothing which compels anything different from what is there provided, consequently, all cases based upon the Jones Act which are filed in the State Courts of Louisiana should, so far as procedure is concerned be considered as though the cause of action arose under a statute of Louisiana.

In our opinion this case, if it had been tried in the Federal Court, would not have gone to the jury, but would have been disposed of by a directed verdict pursuant to the procedure prevailing in that Court.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of defendant dismissing plaintiff’s suit at her cost.

Reversed.

SIMON, Judge

(dissenting).

I cannot agree with the opinion of my associates on the question of negligence charged against the defendant, and, in order to clearly set forth my view, I deem it advisable to restate the entire case.

This suit is brought by Lola Macomber, as administratrix of the estate of her late husband, John B. Macomber, against the DeBardeleben Coal Company, Inc., the owner and operator of the steam tug “Clara”, to recover damages for his death on February 9, 1939, while in the defendant’s employ as a deck hand, then engaged in towing barges between Houston and New Orleans. It is filed under the provisions of the Merchant Marine Act of 1920, Section 33, commonly known as the Jones Act, 46 U.S.C.A.Title 46, § 688. The gist of the action is that the death of Macom-ber was the direct result of negligence on the part of the officers, agents and employees of defendant, engaged as fellow members of the crew with him at the time of his death.

Macomber was 38 years of age and had been in defendant’s employ prior to the fateful trip. He was engaged as a deck hand by defendant on its tug boat “Clara”, and, on February 9, 1939, at about 2 o’clock p. m., was drowned while engaged in the performance of his duties. The tugboat was then “pushing” an empty barge to New Orleans, the accident occurring in the “Intracoastal Canal near Bay Wallace”. She carried a crew of ten, of whom Leonard F. Edgecombe, also a deck hand, and the deceased were then on duty.

The petition sets forth the charges of negligence as follows:

“(a) In failing to furnish a safe ladder with the necessary safety cleats to keep it from slipping.
“(b) In not having a competent deck hand to work with your petitioner’s decedent, and one who would attend his duties and not allow a ladder on which a man was working to slip and fall.
“(c) In employing as a co-worker to decedent an incompetent man who failed to render any assistance to decedent to prevent his drowning, although life preservers were available and could have prevented the tragedy.
“(d) In that both the officers and crew failed to throw a life preserver, which was available to decedent or to do anything to assist him although having the means and equipment necessary to do it.”

The main defense is that its employees were free from fault, and, in the alternative, defendant pleaded contributory negligence on the part of the deceased.

The jury, by a unanimous vote, rendered a verdict in favor of the plaintiff for the sum of $7,269.40. The district judge rendered judgment accordingly, and from this judgment defendant has appealed.

The several charges of negligence resolve themselves into one primary question, viz.: whether the defendant’s employees were guilty of negligence. It is well settled that the doctrine of assumption of risk and contributory negligence does not bar recovery in suits by seamen to recover damages under the Jones Act, for the act recognizes the doctrine of comparative negligence, and these matters can only be considered in mitigation of damages. Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Ducombs v. Lykes Bros. S. S. Company, Inc., La.App., 1 So.2d 114; Fegan v. Lykes Bros. S. S. Co., 198 La. 312, 3 So.2d 632.

I readily agree with my associates in that the charges of negligence with respect to failing to provide proper equipment and in furnishing defective appliances is clearly unsupported by the evidence presented. This is equally true as to the alleged incompetency of a co-employee in permitting the ladder, from which the deceased was working at the time of his death, to slip and fall. In reaching this conclusion, I am not unmindful of the fact that the explanation submitted by this co-employee as to why and how the deceased fell from the ladder, to say the least, is beyond the realm of commonplace occurrences, and one which I find difficulty in understanding or accepting. Serious as my doubts may be in accepting the version of how and why the deceased fell, this feature of the case is uncontroverted by other evidence and is, naturally, controlling.

There is little dispute as to the facts. The Tugboat “Clara” is about 100 feet in length by 21 feet beam. The empty barge was being pushed, there being nothing to the rear of the tugboat. Edgecombe and Macomber were on duty, conversing on the deck. At the suggestion of the latter they procured a ten-foot ladder, placed it against the smokestack, Macomber ascended and proceeded to “swoogy” (clean) the surface of the stack. On attempting to descend, with one hand holding on to a guy wire supporting the stack, and the other on the upright of the ladder, his right foot went between the rungs, he released both hands and fell over backwards. Edgecombe, the only eye-witness, says that the deceased landed on the deck in a half-reclining, sitting posture, flipped a backward somersault, his body passing underneath the 18-inch railing and dropping into the water. He testified that he made an unsuccessful effort to grab Ma-comber when the latter struck the deck.

The evidence clearly discloses that, upon Macomber falling overboard, Edgecombe ran or walked (alternatively used by the witnesses) to the pilot-house, a distance of 50 to 55 feet from the smoke-stack. On reaching the pilot-house, he called to Arthur A. Smith, the pilot, “Man overboard”. Smith replied, “What did you say?” (his failure to hear being undoubtedly due to the noise of the engines) and again Edge-combe repeated, “Man overboard”. The tug was traveling against a head tide, a moderate wind blowing obliquely against the bow, at a speed of seven to nine miles per hour. Having understood Edgecombe on the second attempt, Smith called down through the telegraph to the engine room, reversed the engine on the port side, and Captain Angelo, who was then asleep on a bunk in the pilot-house, jumped up and reversed the engine on the starboard side. Smith and Edgecombe, joined by two seamen, then made an effort to lower the lifeboat. During all of this time, the testimony of all of these parties affirmatively shows, Macomber was struggling in the water and was “swimming towards the tugboat”. The futile and vain attempt to lower the lifeboat consumed ten to fifteen minutes. The engineer, Wuertz, testified that the lifeboat could not be lowered until the tug had been stopped, and that, before this was done, the tug had traveled a distance of over 500 feet. It is shown by all parties that Macomber, after struggling and swimming for some minutes or more, disappeared, and that, when he could no longer keep himself afloat, the lifeboat had not as yet been lowered. It is shown that there were six life rings on the tug. One was on each side of the deck, about five feet aft of the smoke-stack, and four on the pilot-house. These life rings were of standard size and each hung on an ordinary hook. All that was required to remove these life rings from the hooks was a mere lifting of the ring.

Everyone admits that no life ring was thrown into the water after Macomber fell overboard. The only thing done by defendant’s employees in an effort to save Macomber’s life is what I have detailed above at some length. Smith, the pilot, under cross-examination, testified as follows :

“Q. You are familiar with that boat, how far was this life ring from where the stack was? A. From where the man (Edgecombe) was holding the ladder, the life ring was approximately, I will say about seven feet over his head.
“Q. Could it be reached overhead? A. Yes sir.
“Q. There was no difficulty in taking down that life ring or could it have been merely lifted off the hook and thrown instantly in the water? A. Absolutely. The life ring is on a hook, it is rigged just like a life buoy, they have a hook and the life ring sets right in it, and all you have to do is take it out.
“Q. All Edgecombe had to do then was to lift out the life ring off the hook and throw it right overboard? A. Yes sir.
“Q. And he didn’t do it? A. No sir.
“Q. But instead of doing that he ran forward across the deck and up on the other side of the boat, up to the wheelhouse? Do you know why he didn’t throw that life ring overboard instantly? A. He just didn’t think about it I guess.
“Q. He overlooked it? A. Overlooked it.
“Q. When he got up to the wheelhouse and you stopped the engines he had covered a distance of about 50 or 60 feet, was he running or walking? A. Running.
“Q. And after you threw your signal, your telegraph signal in reverse and threw your boat over hard to port, your wheel to port, you then looked out and saw this man struggling in the water? A. That’s right.
“Q. After all that was done? A. Yes sir.
“Q. He was still struggling in the water? A. He was swimming in the water towards the boat.
“Q. Trying to make the boat? A. Yes sir.”

These employees agree in their testimony that there was a head tide, a tide in the direction towards Macomber, and had a life ring been thrown, as it should have been, it would have floated towards him. Captain Angelo, under cross-examination, testified as follows:

“Q. I didn’t ask you that. The question is, wasn’t it Edgecombe’s job to throw a life ring over? A. If you see a party like that overboard, the boy lost his head, he was all excited.”

The pilot, Smith, admits that, had he understood Edgecombe the first time he called, he would have thrown a life ring from the pilot house. Unfortunately, when he did understand, the tug had left the deceased floundering in the water, 300 to 500 feet away.

Our Federal Supreme Court has, on several occasions, ruled that the Jones Act should be liberally construed. As was said in the case of Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082:

“The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure. * * * The act is not to be narrowed by refined reasoning or for the sake of giving ‘negligence’ a technically restricted meaning. It is to he construed liberally to fulfill the purposes for which it was enacted, and to that end the word may be read to include all the meanings given to it by courts, and within the word as ordinarily used. * * * ”

In Cortes v. Baltimore Insular Lines, Inc., 287 U.S. 367, 375, 53 S.Ct. 173, 176, 77 L.Ed. 368, it was said:

“ * * * This court has held that the act is to be liberally construed in aid of its beneficent purpose to give protection to the seaman and to those dependent on his earnings.”

It can presently be stated that “negligence” is a word of broad significance, inclusive of several elements, and may not readily be defined with accuracy. And our courts have recognized that liability arises when one suffers injury as a result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, and even in instances where the breach of duty is a result of inadvertence or carelessness. Jamison v. En-carnación, supra.

Our courts, in dealing with cases as here presented, attach importance, and, I believe, correctly, to the relationship of seamen and their master. Seamen, while on duty, are subject to rigorous duty, and the opportunity of appeal for protection from an abuse of power is narrowly restrained. As is often stated: be made an offense punishable by imprisonment. He owes obedience while on shipboard to his superior officers, and is bound to execute their lawful commands even at the risk of danger to his person or his life; and their right to enforce obedience by proper discipline and punishment has been recognized.” Harris v. Pennsylvania Railroad Company, 4 Cir., 50 F.2d 866, 868.

“There is no other peaceful pursuit in which the dominion of the superior is so absolute and the dependence of the subordinate so complete, as in that of a sailor upon a vessel at sea. He binds himself by the contract of employment to serve the ship during the voyage, and desertion may

We must concede that it is for these reasons that remedial legislation for the benefit and protection of seamen has been liberally construed to attain that end.

In the G. W. Glenn case, D.C., 4 F.Supp. 727, 729, 730, it was said:

“The duty to rescue a seaman overboard is a duty of the ship and of the owner under the general maritime law of the sea. ‘There is little doubt that rescue is a duty when a sailor falls into the sea/ Cortes v. Baltimore Insular Line, Inc., supra. ‘Equally clear is the obligation upon the part of the ship to save the life of a sailor who falls overboard through a misadventure, not uncommon in his dangerous calling. * * * it is implied in the contract that the ship shall use every reasonable means to save the life of a human being who has no other source of help. The universal custom of the sea demands as much wherever human life is in danger. The seaman’s contract of employment requires it as a matter of right/ * * *
‘There appears to be recognized a further duty on the part of a ship to its sailors, to make all reasonable efforts to rescue them if they fall overboard from any cause whatsoever. * * *5 Bohlen’s Studies in the Law of Torts, 312.” (Italics mine).

In applying a given factual situation to our prevailing jurisprudence, rarely do we discover a case which, to the case at bar, is as a glove to the hand. The case of Harris v. Pennslyvania Railroad Company, supra, presents facts which I am unable to distinguish from those presented here. It may be said that the factual situation in the Harris case is not as strong as in the instant case.

The Harris case, supra, presented an action for damages brought by the administrator of the succession of a deceased seaman, whose death was caused by drowning whilst engaged as a deck hand and while performing his duties on a car float which was in tow of defendant’s tugboat. The mate in command of the vessel was in the pilot-house and had a view fore and .aft. The court found that he was able, within a few seconds, to step from the pilot-house to the side of the vessel, a distance of some 25 feet. The accident occurred during the night time. The tug had cast off so that it could be made fast to the side of the float. The deceased was standing on the side of the float to receive the bow line from the tug, which was to be made fast to the float. Harris’ co-employee, Sparrow, after explaining the method to be used, then went aft of the car float to fasten the stern line. When Sparrow arrived about midships, he heard a cry, looked back, saw Harris going into the water feet first with a lighted lantern. Sparrow called out to the tugboat, “man overboard”, so as to prevent the tug from backing over Harris. Harris came up from beneath the water, 25 feet aft of Sparrow, as the latter stood amidships. The barge was moving ahead about 3% miles per hour. Sparrow went aft on the barge as quickly as he could and, when he reached the stern, he picked up a 6-inch hawser and threw it toward the man in the water. At that time Harris was 50 feet astern of the float, and the hawser was so heavy that it was not thrown more than ten feet. Nearby, there lay upon the deck a heaving line, estimated to be probably 48 feet in length, and, as the court commented, "which could have been thrown much more easily, but the fireman failed to use it.” 50 F.2d 867. (Italics mine.) Being a good swimmer, Harris appeared to be swimming, or treading water. The court found that “no other effort was made to throw a line or other device to Harris while he was in the water”. 50 F.2d at page 867. It also developed that, when Sparrow called out, “man overboard”, the mate stepped out of the pilot-house, walked to the side of the boat, saw bubbles which might have indicated someone had fallen in. The court found that there was a life buoy kept near the pilot-house which the mate could have secured in three or four seconds, but that he made no attempt to do so.

In the meantime, the tug backed towards where Harris had fallen overboard, but he had disappeared.

At the close of plaintiff’s case, a directed verdict was granted in favor of defendant on its motion. The reasoning of1 the trial judge was in effect that, even conceding it was the duty of defendant’s employees to “do all that was reasonably possible to save the drowning man by throwing lines or buoys into the water” (50 F.2d 867), there was no evidence from which the jury could conclude that "more diligent action on their part would liave saved their comrade’s life” (italics mine) the judge commenting that, even if additional steps had been taken, it was still a matter of speculation as to whether the deceased would have been able to avail himself so as to be saved.

In reversing the judgment, the court found that the evidence was sufficient to justify the submission to the jury of the' issue of negligence. The court, in commenting on the facts and in referring to the mate leaving the pilot-house, concluded:

“ * * * At this moment or shortly thereafter, the mate arrived at the side of the ship in close proximity to a life ring, but made no effort to throw it into the water because he could not see the man overboard. The mate knew that the man had just gone overboard, - and it should have been obvious to him that the very occasion existed for which life rings are made and used. The fireman also, although making an effort in his excitement to throw overboard a 6-inch hawser which one man could not readily handle, failed to make any effort to use the heaving line nearby which he could easily have managed.” SO F.2d 869.

The court further concluded:

“These obvious facts lead us to conclude that there was evidence of neglect on the part of the crew, and further that it was for the jury to decide whether the man could have been saved if due diligence had been used. The deceased, even when last seen, was within 200 feet of the point at which a life ring, if promptly thrown, would have rested on the surface of the water. He was evidently making every possible effort to save himself. Whether in any event he would have succeeded is not a certainty, but in our view there was enough testimony tending to show a reasonable probability of rescue,' had a life ring or heaving line been used, * * * SO F.2d at page 869.

In the case at bar, as previously stated, the similarity of the facts presented to those in the Harris case, supra, is so striking that a simple reading of these facts will make certain the impossibility of distinguishing one case from the other. In the case at bar the deceased fell from .a ladder onto the deck and thence into the water. It is my appreciation of the law that why, or how he fell, is an irrelevant issue, and, at all events, could only be urged in mitigation of damages. At the time that he fell overboard, his co-employee, Edgecombe, was standing at a distance of from five to seven feet from a life ring. He saw Ma-comber strike the water, but made no effort to reach for the life ring and to throw it overboard. His failure so to do is explained to some extent by the fact that he “lost his head”. A similar state of facts existed in the Harris case, where the co-employee, “in his excitement”, threw a 6-inch hawser to reach a drowning man SO feet away, when it could only be thrown a distance of ten feet. Applying the statement used in the Harris (SO F.2d 869) case, Edgecombe “knew that the man had just gone overboard, and it should have been obvious to him that the very occasion existed for which life rings are made and used”. It is also shown that this life ring could have been reached and thrown into the water within a space of a few seconds. This is stated positively by the second assistant engineer. Even conceding that the tug was traveling 11 feet per second away from Macomber, the evidence discloses that he fell overboard near the smokestack, about 40 feet from the stern. It is further testified that a life ring can be thrown a distance of 35 to 40 feet. It is further shown that the tide was floating in the direction of the deceased and that, when he was seen on the surface of the water, he was swimming towards the boat.

These obvious facts lead me to conclude that, had Edgecombe exercised reasonable diligence and had done all that was reasonably possible to save the drowning man, the probability of rescue is most certain. Had he reached for a life ring, as he should have done, and had run to the stern of the boat, and thrown it overboard, the few seconds required for this effort would have been such that the deceased would have been within easy reach of this life ring, or that it would have floated on the surface towards the direction in which he was swimming, thereby affording him the opportunity of saving himself.

Instead of performing this plain, simple duty, a duty which is performed from instinct rather than from discretion, defendant’s employee ran a distance of 55 to 60 feet to notify the pilot that a man was overboard ; this,. as he explains, to stop the engines and thus avoid the propellers from striking Macomber’s body. It is obvious' that, from the place where Macomber fell overboard and the distance that Edgecombe ran to give this notice, he should have readily realized, had he not lost his head, that by the time he would have reached the pilot-house and effected a stopping of the engines, moving at seven to nine miles an hour, or eleven feet per second, that such an effort would be vain and futile. It would have been futile for the very obvious reason that Macomber had passed the stern of the boat long before Edge-combe had given this notice and that any danger of being struck by a propeller would have long since passed.

The evidence further shows that the cry of “man overboard” had to be repeated, the engine pilot stating that he had not heard the first cry of Edgecombe. All of this time from the moment that Macomber fell into the water, the time consumed in running a distance of 55 to 60 feet, in calling to the attention of the pilot that a man was overboard, and in reversing the engines, during this entire time, the deceased was struggling in the water without any effort being made to effect some kind of rescue. The stopping of the engines may be termed an indirect attempt at rescue. The only effort made to effect a rescue in this instance was an attempt to lower the lifeboat. It is shown by the testimony of defendant’s employees themselves that it took ten to fifteen minutes to lower this lifeboat and that Macomber had already drowned, even before the lifeboat had been lowered into the water.

In the case of Kirincich v. Standard Dredging Company, 3 Cir., 112 F.2d 163, 166, the court uses the language to be found in the Sea Scout Manual and which is somewhat applicable to the facts at bar, viz.:

“ ‘Another type of life preserver often seen is the ring buoy. These are to be found attached to the rails and bridge combings of large vessels; on hooks against a deck house or secured to the standing rigging on smaller boats; sometimes merely resting on the after-deck, in all cases ready for instant use. They are for use, when the cry “Man Overboard” goes ringing through the ship. It is the duty of the man nearest a life buoy to instantly toss it overboard, first securing the lemon, or bitter, end of the line attached to the ring, usually by placing his foot over the line. * * *
“ ‘The man who has fallen overboard thanks to modern safety laws stands a very good chance of again reaching his vessel. Even though not a swimmer the dire emergency of the situation will often enable a man to somehow fight to the life ring and cling on,.’ Sea Scout Manual, pp. 38-39.” (Italics by U. S. Circuit Court.)

In the light of these facts, must we conclude that the taking of any further steps by defendant’s employees would have been a vain and fruitless effort, a matter of speculation, there being no certainty that the deceased would have availed himself of these efforts and have saved himself?

In the Kirincich case, also, the court quoted approvingly from the doctrine announced in Zinnel v. United States Shipping Board B. F. Corp., 2 Cir., 10 F.2d 47, 49:

“ ‘There of course remains the question whether they might have also said that the fault caused the loss. About that we agree no certain conclusion was possible. Nobody could, in the nature of things, be sure that the intestate would have seized the rope, or, if he had not, that it would have stopped his body. But we are not dealing with a criminal case, nor are we justified, where certainty is impossible, in insisting upon it. * * * we think it a question about which reasonable men might at least differ whether the intestate would not have been saved, had it been there.’ * * * ”

A unanimous verdict was rendered in the case at bar in favor of plaintiff. The jury heard and saw the witnesses testify in this proceeding. It has been a universal rule of our appellate courts, the soundness of which has never been questioned, that the finding of a jury or a trial judge on questions of fact should not be disturbed unless manifestly erroneous. I concede, however, the majority view that, where the trial court’s finding, or that of the jury, on the question of fact and law is not responsive to the evidence, the appellate courts are fully justified, under our system of procedure, to render such judgment as will be in accordance with the true facts and law. However, I am firmly convinced that from the facts here presented, defendant’s employees have been guilty of negligence and that that negligence was the proximate cause of the accident and for which liability should be imposed in accordance with the findings of the jury and the judgment of the lower court.

I respectfully dissent.


author: OTT, Judge.

text:
    PENTON v. SEARS, ROEBUCK & CO.
    No. 2299.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Stewart & Taylor, of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   OTT, Judge.

This is a suit by the plaintiff to recover damages from the defendant company in the sum of $1,500 for personal injuries which she claims to have received when the car in which she was riding with her husband ran into the rear end of a large delivery truck of the defendant company on the Baton Rouge-Hammond Highway about two miles east of Harelson on June 18, 1940, about four o’clock P. M. The car driven by plaintiff’s husband was going east, and it is alleged that the truck was parked in the lane of traffic facing in an easterly direction, the same direction in which the car was traveling; that the truck was so parked as to leave less than a nine foot clearance on its left, or the north side, of the highway; that it was cloudy and raining and almost dark, which condition of the weather and consequent poor visibility prevented plaintiff’s husband from seeing this parked truck in time to avoid striking it. Plaintiff alleges that her husband was driving at a speed of approximately 25 miles per hour and that he was guilty of no negligence contributing to the accident, but that the accident was caused solely by the unlawful parking of the truck.

The defendant admits the collision of the Penton car with the rear end of its truck, and admits that the driver of the truck had stopped or parked the same for the purpose of permitting his helper to ascertain from a nearby residence the location of the home of one of defendant’s customers at which some merchandise on the truck was to be delivered by the driver in the course of his employment. The defendant also admits that a slight rain was falling at the time, and alleges that a heavy rain had been falling prior thereto. Defendant admits that its employee parked the truck,but alleges that the truck was parked with its left wheel-on the edge of the black top and the right wheels as near to the south ditch as possible, and that when the truck was so parked the right wheels were on the shoulder at least 3% feet from the south edge of the black top; that the pavement at this point is 18% feet wide, the truck 6 feet 11 inches wide, thus leaving more than a 15-foot clearance on the north or left side of the pavement. Defendant alleges that the sole proximate cause of the accident was the carelessness and negligence of Penton in driving his car at a grossly excessive speed, his failure to keep a proper lookout and apply his brakes in time to avoid the collision, and in his attempting to pass to the left of the truck when it is alleged that approaching vehicles obstructed his passage.

In the alternative, and in case it is found that the truck driver was negligent in parking the truck, the defendant alleges that such negligence was remote and passive and was not a contributing factor in causing the accident; and further in the alternative, and in case it is found that defendant’s truck driver was negligent and that his negligence contributed to the accident, it then alleges that the plaintiff was guilty of independent negligence in her failure to warn her husband of the parked truck.

The trial court rendered judgment dismissing plaintiff’s suit on the ground that if there was negligent parking of the truck, it was not a proximate cause of the accident, but that the proximate cause of the accident was the reckless driving of plain-iff’s husband. The plaintiff has appealed.

The testimony as to the exact position that the truck was parked on the highway is confusing and conflicting. The trial judge found, after carefully analyzing the testimony, that there was a slight preponderance in the testimony to the effect that the truck was parked on the black top, or practically so. Plaintiff and her husband both testified that the truck was parked completely on the pavement in their lane of traffic, and four other witnesses who reached the scene of the accident shortly after it occurred partly corroborated their testimony by testifying that the truck was parked mostly on the pavement with its right wheels on the shoulder, there being a difference, however, in their testimony as to how much of the truck remained on the pavement, the conclusion to be drawn from their testimony being that a greater part of the truck remained on the pavement in the south traffic lane. Two witnesses, employees of the defendant company, a Mr. White and a Mr. Hurt, who came to the scene of the accident shortly after it occurred, testified that the truck was about half on and half off the pavement, to be exact, Mr. White testifying that the right wheels of the truck were between three and four feet off the pavement and Mr. Hurt testifying that the truck was about three feet on the pavement and four feet off. The negro driver testified that the truck was almost completely off the pavement and on the shoulder of the road. Taking all this testimony into consideration, and without going into the details of the testimony of each witness on this point, we agree with the trial judge that the preponderance .of the testimony shows that thd truck was parked principally on the pavement and left less than a 15-foot clearance on the north or left hand side of the highway.

It is not clear from the testimony as to just what was the condition of the weather at the time of the accident, plaintiff and her husband testifying that it was raining bard making visibility very poor, and some of the witnesses testifying that it had been raining hard but had either stopped or was merely drizzling. In any event, the evidence is clear that it had been raining very hard and the pavement was wet and slippery and the ditches on the sides of the road were full of water. In fact, the defendant admits in its answer that it had been raining hard and was drizzling at the time of the accident. We therefore conclude that it had been raining hard and was misting or drizzling at the time of the accident. At four o’clock in the afternoon of June 18th, the sun was some three hours high and,'of course, it was good daylight and there was no occasion for any cars or trucks to have lights. In fact, there is no evidence that the visibility was so poor as to require any of the cars in the vicinity of the accident to have their lights burning.

Plaintiff’s husband testified that he first saw the truck when he was 50 or 75 yards to the rear of it; that he was traveling between 25 and 35 miles per hour at the time he first saw the truck. When he was between 100 and 150 feet to the rear of the truck, he pulled to his left to pass and slightly accelerated his speed, but he saw two cars coming from the opposite direction making it impossible for him to pass and he then applied his brakes to check his speed as he pulled back into his right lane of traffic. At that time he thought the truck was moving, but after he had gotten almost on the truck, he realized that the truck was stopped and seeing that he was about to run into the truck, attempted to drive his car into a driveway leading into a private residence on the south side of the road, but owing to the slippery condition of the pavement and the fact that the rear end of the truck partly blocked the entrance into the driveway, the left part of his car struck the right rear end of the truck, causing the injuries to his wife who was sitting on the front seat to his right.

It is obvious from the testimony that plaintiff’s husband was guilty of negligence in several respects. In the first place, he should have seen the parked truck in ample time to stop his car. He admits seeing two other cars approaching from the opposite direction 100 or 150 feet east of the truck, and there would seem to be no reason why he should not have seen this large parked truck much closer to him than these oncoming cars. If he was 100 or 150 feet from the truck when he first began to check the speed of his car, there is no reason why he should not have been able to stop his car before striking the truck. The fact that his car skidded for some distance and then struck this large and heavy truck with sufficient force to push it several feet forward indicates that he was going at a very fast rate of speed even when his car hit the truck.

When there is any condition in the weather which affects visibility, such as fog, rain, or smoke, it is the duty of the driver of a motor vehicle to take extra precautions to meet such unusual circumstances. 1 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., p. 501, § 689. The evidence in this case does not show, however, that there was any serious impairment of Penton’s vision as it seems that he was able to see a sufficient distance, as already stated, for him to be aware of the presence of the truck in his lane of traffic and avoid running into it had he been going at a proper speed and keeping a proper lookout, with his car under control.

Under the finding of fact as to the parking of the truck, it is obvious that the truck driver violated Rule 15, Sec. 3, Act 286 of 1938, which prohibits a motor vehicle being parked or left standing upon the paved portion of the highway without leaving a clearance of at least 15 feet on the main traveled portion of the road opposite the standing or parked vehicle. The question then arises whether or not, under the particular circumstances of this case, this negligence of the truck driver was a proximate or contributing cause of the accident. The truck had been parked for four or five minutes when the collision occurred.

As to what constitutes the, or a proximate, cause of an accident, depends largely upon the particular circumstances of each case. One of the most satisfactory definitions of proximate cause is that the accident must be the natural and probable consequence of the act of negligence, or, stated in a different way, the negligence and the resulting injury must be known by common experience to be a natural and usual sequence—that is, according to the usual course of events, the accident follows the negligence. 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., pp. 346, 347, § 2533.

Applying this rule, can it be said that the natural and probable consequence of the improper parking of the truck in the highway would be for a following car to run into it from the rear in the daytime and under conditions as they then and there existed? The answer is that it is natural and probable that the driver of an approaching vehicle would see such a parked truck and avoid striking it where there is no obstruction to the vision of the driver of the approaching car, or where the conditions are such as not to seriously impair visibility, and where he is driving at a lawful speed and has his car under proper control.

This court held in the two cases of Hudson et al. v. Provensano, La.App., 149 So. 240, and Boudreaux v. Iseringhausen, La.App., 177 So. 412, that the parking of a motor vehicle on the pavement without leaving the required clearance was, under the facts and circumstances shown in those two cases, a contributing cause of the accidents. It will be noted, however, that in those two cases the accidents occurred at night. In the Provensano case, the accident occurred around five o’clock in the morning in December, while it was yet dark, and in the other case the accident occurred at night as the question of want of lights was also involved. We do not hold that the unlawful parking of a motor vehicle may not be a proximate cause of an accident where it is run into from the rear by an approaching car. But, as already indicated, whether or not such unlawful parking is a proximate or contributing cause of an accident depends upon the particular facts and circumstances of each case. See Rector v. Allied Van Lines, Inc., et al., La.App., 198 So. 516, and Roberson v. Rodriguez et al., La.App., 186 So. 853. We agree with the trial judge that the negligence of the truck driver in parking the truck had become passive and too remote to be a contributing cause of the accident, and that the negligence of plaintiffs husband was the direct, immediate and proximate cause of the accident.

For the reasons assigned, the judgment appealed from is hereby affirmed at the cost of appellant in both courts.


author: LE BLANC, Judge.

text:
    BULLIS v. TOWN OF JACKSON.
    No. 2306.
    Court of Appeal of Louisiana. First Circuit
    Nov. 19, 1941.
    Rehearing Denied Dec. 30, 1941.
    Writ of Error Refused Feb. 2, 1942.

      Gilbert P. Bullis, of Ferriday, for appellant.
    W. T. Bennett, of Clinton, for appellee.
   LE BLANC, Judge.

The plaintiff in this suit is a practicing attorney at law who obtained a judgment against the defendant municipal corporation, the Town of Jackson, Louisiana, for legal services rendered in the year 1934. The judgment is for the sum of $300 with legal interest and it became final in the month of June, 1935. See Bullis v. Town of Jackson, La.App., 162 So. 82. The defendant having failed or neglected to pay plaintiff the amount due him under the judgment, he has resorted to legal process in order to enforce payment.

In his original petition, after having alleged failure, neglect or refusal to pay on the part of the defendant, plaintiff prays that a writ of mandamus be issued by the court commanding it to pay him the said judgment out of funds in its possession, or, in the alternative, out of the revenues of its gas franchise, or, again in the alternative, that it be required to budget the same as a debt and to levy a sufficient tax and collect the same with which to pay him.

In answer to a rule to show cause the defendant filed an exception of no right of action and of no cause of action. Plaintiff then filed another petition in which he set out in detail the facts out of which.the original suit brought by him for attorney’s • fees arose and on which judgment was rendered. In this petition he alleges that his services were in connection with preparing and having passed the necessary ordinances for the erection and installation of a natural gas system in the Town of Jackson and the sale of the bonds issued in connection therewith. He claims that as a result he has a privilege on the gas plant which is subject to execution as it is not a governmental function of the municipality but a private enterprise.

Further pleading in the alternative, plaintiff alleges that a writ of mandamus should issue because it is unjust for the Town of Jackson to take advantage of its position; that- its gas system is extremely profitable and that it has enough revenues from other sources to meet its governmental' expenses, including his judgment. He avers that it could easily pay the same in any of the following ways: (1) Out of cash on hand, (2) from the proceeds of the gas plant, (3) by levying a tax to pay the same as part of the costs of the plant, or (4) by increasing the price of gas, (5) by increasing the occupational license tax, or (6) by reducing unnecessary expenses. The prayer of his petition is for a rule to show cause why a writ of mandamus should not issue requiring the town to budget his judgment as part of its expenses and to pay the same out of its current revenues, or “to pay the same in one or all of the methods recited.” In the alternative he prays that a writ of execution issue commanding the sheriff of the parish to seize and sell the gas plant and from the proceeds that he be paid his judgment by preference and priority over all other creditors of the town.

In answer to this new petition the defendant municipal corporation filed a motion to elect and that plaintiff be made to state on which particular cause of action he relied, and also exceptions of no cause or right of action and of vagueness. The motion to elect and the exception of vagueness were overruled, the court reserving its ruling on the exception of no cause or right of action. Answer was then filed in which the defendant denied practically all the allegations made by plaintiff and then further answering, averred that it has not refused to .pay plaintiff’s judgment but that it could not pay the same until and unless it had made provisions for all statutory, necessary and usual charges; that it had prepared its budget of anticipated revenues and expenses for the fiscal year beginning October 1, 1940, and there remained no excess in the revenues with which to pay the same. Further, it averred, that it had imposed all taxes and licenses it could legally levy and that the revenues to be derived therefrom would be sufficient only to meet its statutory, usual, and necessary charges and expenses.

After trial in the court below there was judgment in favor of the defendant in rule and against the plaintiff dismissing the rule at his costs. From that judgment he has taken this appeal.

In this court the defendant has again filed and is pressing its motion to elect and its exception of no cause of action. With regard to the motion to elect, although plaintiff's pleadings may appear a bit involved, we are of the opinion that he intended throughout and did protect each cause of action he tried to disclose by making each plea in the alternative. Without deciding whether plaintiff’s two demands, one for a writ of mandamus and the other seeking execution against certain property, are inconsistent or not, the rule is that even when inconsistent demands are made in the same proceedings and insisted upon, they are not inconsistent when made alternatively. Haas et al. v. McCain, 161 La. 114-119, 108 So. 305; Smith v. Donnelly, 27 La.Ann. 98. The point raised under the exception of no cause or right of action is that if plaintiff is entitled, as he claims to be, to execution on his judgment, he cannot obtain mandamus as that writ is an order directed to an individual or corporation directing the performance of some ministerial duty and can only issue in cases where the law has assigned no relief by ordinary means. ’Code of Practice Arts. 829 and 830. It is contended that since execution is such a form of relief, the cause of action for mandamus should therefore not be allowed. We must say that there is much merit in the contention urged but inasmuch as we think that the case was properly disposed of on the merits in the court below we prefer to decide it in that manner also.

Taking up plaintiff’s right to have the gas plant of the defendant town subject to levy under execution first, we readily agree with the trial judge that under the proof adduced that plant is shown to be a public utility, built by the municipality from the proceeds of a bond issue voted by the citizens and taxpayers of the town, and, as such, is dedicated to public use, and is not a private enterprise. As property dedicated to the use of the public, it is not subject to execution by an ordinary creditor of the town in satisfaction of a purely personal judgment. “Property dedicated to public use, not owned by municipality as corporation, but by public, is exempt from seizure and sale for municipality’s debts.” Town of Farmerville v. Commercial Credit Company, 173 La. 43, 136 So. 82, 76 A.L.R. 686. In that case execution was sought against a water-work system which was municipally owned and operated, and certainly in our opinion, the same rule of law therein laid down would apply to a gas system or plant, also a public utility similarly owned and conducted. In Porter v. Town of Ville Platte, 158 La. 342, 104 So. 67, 69, a mechanic’s lien and privilege was sought to be enforced against a water-work system owned and operated by the municipality which the court refused to recognize, holding that the plaintiff was entitled to judgment in personam. The authorities touching upon the right of a creditor to seize and execute on property of a municipal corporation in satisfaction of his debt were reviewed at length, and the court stated: “The legal principle governing all of these cases is that title to such property is held in trust for the public, and therefore can no more be sold to satisfy the debts of a state or other political subdivision than can any other trust property be sold to satisfy the debts of any other trustee.”

The right of the plaintiff to obtain relief under all of the various forms sought by him, by mandamus, has to be determined more or less on the facts as adduced and found in the record.

It is not shown, but we presume in the absence of any other form of organization or charter, that the Town of Jackson is incorporated under the General Municipal Corporation Statute of this State, Act 136 of 1898. That act provides that: “All expenditures of money for any purpose whatever, shall be in pursuance of a specific appropriation made by order, and in no other manner.” Section 31. Further, under its provisions, it is made the duty of the Mayor and Board of Aldermen to make an annual budget of anticipated revenues and expenditures at the beginning of each fiscal year on October 1st, and to publish the same. By the terms of Act 32 of 1902 they are prohibited from making any appropriation, approving any claim or making any expenditure from the revenues of any one year which shall, separately, or together with others, be in excess of the anticipated revenues of that year. The said revenues are to be dedicated to the payment of all statutory charges, the payment of charges for services rendered annually under time contracts and all necessary, usual charges provided for by ordinance or resolution. It is only an excess of revenue, if any, above these stipulated charges, that may be applied to the payment of amounts due and unpaid out of the revenues of former years.

The proof offered in this case shows that the defendant municipal corporation followed the provisions of the law relative to making its budget for the fiscal year beginning October 1, 1940, and from the same it appears that there was no excess in revenues over and above the charges stipulated by law, out of which plaintiff's judgment could have been paid. In the case of State ex rel. Ascension Red Cypress Co. v. New River Drainage District et al., 148 La. 603, 87 So. 310, citing 18 R.C.L. 227 as authority, it is stated that: “Want of funds is a complete answer to petition for mandamus to compel governing authorities of a political corporation to pay a judgment against the corporation unless the corporation has authority to collect revenues with which to pay the judgment.” It may be that some of the items budgeted by the defendant town as expenditures appear to be a bit high, but there is certainly no proof to show that they are inflated or were arbitrarily fixed with the idea of padding the budget to escape the payment of any legitimate debts due by it. Besides, the framing of their budgets seems to be a matter which is left to the discretion of the town councils, and courts are without authority to regulate them in preparing or supplementing the same. State ex rel. Lorenz v. City Council of New Orleans, 116 La. 851, 41 So. 115.

Mandamus as sought by plaintiff in having the defendant town directed to levy an additional tax as part of the cost of its gas plant or increasing the occupational license tax, in order to pay its judgment, cannot issue for the reason that “the right of a political corporation or subdivision of the state to levy taxes must be conferred in terms. It is not to be implied from the mere fact that the Legislature has created the corporation.” State ex rel. Ascension Red Cypress Company v. New River Drainage District, supra. Neither, do we find any authority in law by which the court could enforce the town to increase the rate in the price of natural gas sold to consumers, in order to pay plaintiff's judgment, and with regard to the demand that the town reduce unnecessary expenses in order to provide funds with which to pay him, plaintiff has submitted no proof to show that the town has incurred any such unnecessary or exorbitant expenses, and for that reason, if for none other, the relief sought by him could not be obtained on that ground.

The trial judge, we think, correctly and properly disposed of all the issues presented in the rule to show cause and in plaintiff’s failure to have pointed out manifest error, the judgment which dismissed the same is hereby affirmed at his costs.


author: WESTERFIELD, Judge.

text:
    WALSH v. WHITNEY NAT. BANK OF NEW ORLEANS.
    Na. 17651.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    Rehearing Denied Dec. 15, 1941.
    Writ of Certiorari Denied Feb. 2, 1942.

      St. Clair Adams & Son, of New Orleans, for appellant.
    George Piazza, of New Orleans, for ap-pellee.
   WESTERFIELD, Judge.

Miss Emily Walsh sustained painful and permanent injuries when she fell on the floor of the office, No. 1303 Whitney National Bank Building, occupied by her employer, the Pan-American Life Insurance Company. Alleging that her fall was due to the negligence of the Whitney National Bank in maintaining the floors of her employer’s office in a dangerous and slippery condition due to the excessive use of wax, she brought this suit against it for $9,372.38, as damages.

The defendant admitted that Miss Walsh fell as alleged in her petition, but denied that it was in any way responsible therefor and, in the alternative, pleaded contributory negligence.

There was judgment below in plaintiff's favor in the sum of $1,237.38 and the defendant has appealed. The plaintiff has answered the appeal and asked that the amount awarded be increased to the sum prayed for.

Miss Emily Walsh was a clerk in the of-nce of the Pan-American Life Insurance Company, where she had been so employed for about twenty years. The Pan-American Life Insurance Company leases its offices from the Whitney National Bank of New Orleans, which maintains the floors.

On January 10th, 1940, while plaintiff was walking from one part of her office to another, she slipped and fell to the floor. Seven employees of the Pan-American Life Insurance Company and one former employee testified in Miss Walsh’s behalf. These witnesses, without exception, declared that the floor was dangerously slippery on the day Miss Walsh fell and that it had been in that condition for several months before and several months after the accident. Many of them declared that at one time or another they had slipped on the floor and several of them had fallen. For example, Mrs. Dolly Chilton testified as follows: “My foot flew from under me just a few weeks before Miss Walsh fell. I don’t remember the exact date, but both my feet flew from under me and I fell full length and hit on the back of my head.”

Miss Jessica Jeffs when asked if she had ever slipped on the floor answered in the affirmative, saying: “Well, I had two slips that were bad. I had one where I was going headlong and reached out and caught a desk and it caused quite a disturbance in the office, and another time some young man right near caught me when my feet were going out from under me, and a number of other small slips that frightened me.”

When asked whether she had seen others fall she replied: “I have seen them stagger and do acrobatics to keep from falling.”

Mr. L. A. Bienvenue, a former employee of the company, stated that he was present when Miss Walsh fell, and when asked if he had seen anyone else fall replied: “A couple of them. I have seen people walk down there and maybe slip and catch those desks, and I have heard them complain”.

Miss E. Weinstein testified that she slipped several times, but fell only once. She saw others slip many times.

Miss Lucille Cazes stated that she slipped on the floor at the same spot that Miss Walsh fell the week following Miss Walsh’s accident, but did not fall because she caught onto the desk. She saw others slip and one girl, she thought, was going to go through the wall.

The defendant strenuously objects to the introduction of evidence concerning the falling of other persons before and after Miss Walsh fell upon the ground that it was res inter alios acta. We are referred to no authorities in support of this proposition and, on our part, we believe the objection to be without merit. Auzene v. Gulf Public Service Co., La.App., 188 So. 512; Greeves v. S. H. Kress & Co., La.App., 198 So. 171; Lawson v. D. H. Holmes Co., Ltd., La.App., 200 So. 163; 45 Corpus Juris, verbo “Negligence”, Section 811.

The defendant uses on its floor a preparation called “Car-Na-Var”, which is described by Mr. R. C. Knight, former district representative of the manufacturer, as a “spirit emulsion material, the main ingredient being No. 1 Carnauba wax. In addition to that, the other ingredients are vegetable and mineral gums which are put in primarily to take, to eliminate the slipperiness of the material. The solvent material is either a gasoline or a derivative of kerosene; painter’s naptha, mineral spirits, or one of that character. I am not in a position to state which it is.”

This preparation was applied to the floor periodically and had been put on the floor in question on the night of January 7th, 1940, three days before the accident. According to Elmo Remy, the porter of the Whitney Building, after applying Car-Na-Var to the floor, it is allowed to dry for about an hour when it is “buffed”, which process is described as a polishing by a heavy machine with revolving discs, operated by electricity.

Douglas A. Booth, night superintendent of the building, testified that the buffing is repeated every thirty to forty-five days. In the meanwhile the floor is scrubbed with a soap called “Helm-O-Shine” and polished again. The result, according to the testimony of Knight, Booth and Remy, is no more slippery than any hardwood or polished floor might be expected to be, there being no excess of wax on the surface.

There was a “Ditto” machine, in the office which is the object of counsel’s suspicion. We do not know what a ditto machine is and confess to some disappointment because the record does not enlighten us. All we are told about it is that water is used in its operation and it is suggested that some of the water may have gotten on the floor and added to its slippery surface, but the evidence shows that it seldom leaked and but little water dripped when it did. Moreover, a rubber pad had been placed under it to catch the water.

It must be conceded that office buildings, department stores and other places where uncovered floors are in use must employ some method of cleaning and polishing them, and that a surface of that character does not provide a footing as safe as a covered floor, a carpeted one for example. The writer of this opinion is old enough to remember the time when all floors in public and private use were carpeted as a standard practice, thus insuring a maximum of safety. In those days suits such as this were unknown. But this, like many other excellent customs of the past, has “gone with the wind”. Perhaps, an elderly gentleman may be pardoned the “passing tribute of a sigh” for the departed. However, bare floors are now fashionable and the proprietor of an office building or a store with understandable adaptability, offers -the public what it wants, uncarpeted floors, polished and greased:floors, floors treated with “Car-Na-Var” which, incidentally, is shown to be an expensive preparation, widely used. It contains wax, the best of wax. It also contains “vegetable and mineral gums” which tend to offset the slippery character of the 'wax. No justifiable criticism or legal fault or negligence can be imputed to the building proprietor on this account, but his floors must be reasonably safe, such safety as is consistent with the conditions obtaining. It is not, in the nature of things, that a bare, polished and greased floor should be as safe as a carpeted floor, but in the instant case the floor was not reasonably safe. On the contrary, it was unreasonably dangerous. It was as slippery as the “path to perdition”. Those who were required to use the floors apparently maintained the perpendicular at the expense of complete immobility. The slightest movement was involved with the greatest peril. Men and women executed marvels of acrobatic feats in their effort to avoid disaster. The wax on the floor was so thick that one of the ladies in the office, Miss Jessica Jeffs, kept an emery board in her desk to remove the excess wax from her shoes. After Miss Walsh fell there were streaks on the floor similar to the skid marks of an automobile.

The condition of the floor had been the subject of repeated complaints to the building authorities. In fact, the testimony of the witnesses concerning the dangerous, and slippery character of the floor in. the office of the Pan-American Life Tnsürance-Company, was almost grotesque. Regardless of what has been said about the preparation “Car-Na-Var” and its universal use, the fact remains that these floors were exceedingly dangerous. Either the Car-Na-Var was unfit for the use it was put to or it was improperly applied. There is not the slightest refutation of the testimony of the employees of the Pan-American Life Insurance Company concerning the condition of the floor.

This is not a case such as was considered by us in Powell v. L. Feibleman & Co., Inc., 187 So. 130, cited by counsel, where we held that a customer could not recover from a storekeeper for injuries sustained as the result of slipping on a banana peel in the store, it appearing that the storekeeper had exercised reasonable care to keep the premises in safe condition, and there was no evidence as to how or when the peel was placed on the floor.

Nor is it similar to the conditions obtaining in Greeves v. S. H. Kress & Co., 198 So. 171, 172, where we said:

“After all is said and done, the crucial question is whether the floors of defendant’s store, at the time the plaintiff fell, were safe for the use of customers without subjecting' them to the danger of injury by slipping and falling. The contention of the plaintiff is that the floor was greasy and slippery and that of the defendant to the contrary. * * # ❖ *
“Thousands of people passed over the floors of the defendant’s store, without slipping, between the time of the last application of Mycosheen and the day of the accident. This is a circumstance, by no means conclusive, but it must, nevertheless, be considered in determining the question of fact involving the condition of the floor”.

Here the situation is'somewhat like that which was under consideration in Redon v. .'Standard Accident Insurance Company, La. App., 161 So. 762, where we held a- storekeeper liable for injuries sustained by a customer who slipped and fell because of a grease spot on the floor, the presence of which was held to be due to the storekeeper’s negligence.

Defendant has pleaded contributory negligence upon the ground that since the floors were known to be slippery, plaintiff should have used such care as the situation required to prevent a fall. Her employment compelled her to walk on these floors and, according to her testimony, she contends that s’he did so as carefully as she knew how. The fact that they had long been in a dangerous condition was, from the evidence we take it, well known to her, but she could not be expected to be constantly on her guard against this ever present danger, however long continued.

In Huber v. American Drug Stores, 19 La.App. 430, 140 So. 120, 121, we said:

“In order for a person to be guilty of contributory negligence, he must ‘knowingly, or with negligent ignorance, voluntarily, and unnecessarily expose himself to it.’ Thompson’s Commentaries on the Law of Negligence, vol. 1, p. 184.
“In the case of Dennis Clements & Wife v. Louisiana Electric Light Co., 44 La.Ann. 692, 11 So. 51, 53, 16 L.R.A. 43, 32 Am.St. Rep. 348, the court said:
“‘Even in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to it, unless it is of that character that the plaintiff must assume the risk from the very nature of the danger to which he is exposed.’ ”

Miss Walsh, in our opinion, was not guilty of contributory negligence.

Plaintiff, who was fifty-one years of age, sustained a broken hip as a result of the fall. She was confined to bed for four weeks. Her left leg is permanently shortened about two inches. Dr. Lucien Landry, her physician, testified that it would remain in that condition for the balance of her life. She incurred a doctor’s bill of $150 of which amount she only claims $100 in her petition. Due to her inability to use the street car., she incurred a taxi bill in the sum of $127.38.

Under the circumstances it seems to us that $1,237.38 is inadequate. Plaintiff and appellee in answer to the appeal has asked that the award be increased and we have concluded that for all items of damage to allow the sum of $5,000.

For the reasons assigned, the judgment appealed from is amended by increasing the amount awarded below from $1,237.38 to $5,000, and, as thus amended, it is affirmed.

Amended and affirmed.

JANVIER, J., concurs in decree.