text:
    REESE v. COLEMAN.
    No. 19457.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.
    Fred G. Veith, New Orleans, for appellant.
    David MacHauer, New Orleans, for ap-pellee.
   REGAN, Judge.

Plaintiff, George W. Reese, Jr., an attorney, instituted this suit against defendant, Penny Coleman, on a promissory note for the sum of $162.00.

Defendant answered and admitted that he signed the note but pleaded fraud and misrepresentation.

From a judgment in favor of plaintiff, defendant prosecutes this appeal.

The record reveals that defendant retained plaintiff as counsel to represent and defend his brother, Delwin Coleman, who had been “charged in the Criminal District Court with aggravated battery” and was then incarcerated in the Parish Prison. A fee of $150.00 was agreed upon and defendant then paid plaintiff $15.00 on account thereof and promised to pay the balance of $135.00 in the event that his brother failed to do so.

Subsequently, on August 30th, 1949, defendant called at plaintiff’s office to discuss his brother’s case, and plaintiff informed him that it was usual and customary for an attorney engaged in a criminal matter, “to secure his entire fee before going to trial” and explained to defendant the reason for this practice. After some discussion by plaintiff relative to Delwin Coleman’s lack of financial responsibility and the necessity of securing payment of his fee, plaintiff read the note in question to defendant (which is denied by defendant) and requested that he sign it. The note reads as follows:

“$135.00 30August 1949
“Upon request after date I promise to pay to the order of George W. Reese, Jr., One Hundred and thirty-five and no/100 Dollars at 3045 Grand Route St. John, New Orleans, La. Value received with interest at-per cent, per annum from-until paid, and - herewith waive demand, protest and notice of protest, citation and service of petition, and all legal delays and confess judgment in favor of any legal holder of said sum, and if not paid when due 20 percent, will be added for attorney’s fees.
“(signed) Penny Coleman “No.-Due 30 August, 1949.”

Some time later, the date is unrevealed by the record, plaintiff amicably requested payment of his fee from both defendant and his brother, Delwin Coleman, but to no avail and, therefore, plaintiff brought this suit on the note as of October 11th, 1949.

Defendant denies that an amicable demand was «ever made on him or his brother, and further maintains that the note was not given to plaintiff “as an absolute promise to pay, together with 20% áttorney’s fees, as appears from the face of the document”, but that he “was imposed upon and led to believe that the document he signed was an act of suretyship”; defendant therefore pleads fraud ant misrepresentation.

It appears that defendant’s contention that the document he signed was an act of suretyship is based on the following testimony elicited from plaintiff under cross-examination.

“Q. In your office, did you not tell him, the ‘note you signed, if your brother don’t pay, you will have to pay’? A. That was probably said, yes.
“Q. Have you sued his brother? A. No, we haven’t sued his brother.”

The record amply reflects that plaintiff, on several occasions, attempted to amicably effect collection of his fee from both defendant and his brother, Delwin Coleman, and plaintiff’s testimony to this effect was not successfully contradicted by the defendant. Delwin Coleman was not even called upon to testify on behalf of defendant.

We are of the opinion, as was the court,, a qua, that defendant was never imposed upon and led to believe that the note he signed was an act of suretyship or anything else but what it actually was, a promise to pay by defendant upon the demand of plaintiff.

Defendant admits that he retained plaintiff and made the agreement with plaintiff for a fee of $150.00. Defendant further admits that from the inception of plaintiff’s retention as counsel, Delwin Coleman was not financially able to pay plaintiff’s fee nor was he gainfully employed, and the only reasonable conclusion to draw from these and similar facts orienting the transaction is that plaintiff looked to defendant, ab in-itio for his fee, and the note which plaintiff obtained from defendant, together with his testimony, bears out this conclusion.

We are of the opinion that the record is devoid of any evidence of fraud or misrepresentation on the part Of the plaintiff and we find no justification in the record to warrant this plea of fraud or misrepresentation contained in defendant’s answer and in the brief filed in this court in his behalf.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    KENDALL v. NEW ORLEANS PUBLIC SERVICE, Inc.
    No. 19400.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.

      Leopold Stahl, New Orleans, for appellant.
    Alvin R. Christovich and Wm. W. Ogden, New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Mrs. Miriam Kendall, widow of John Fred Baringer, brought this suit in the amount of $8,443.14, against the defendant, New Orleans Public Service, Inc., for damages for personal injuries suffered by her, a pedestrian, on June 11, 1948, at the hour of 1:30 p. m. on the sidewalk of Carondelet between Julia and Girod Streets, by virtue of defendant’s negligence in that she was violently knocked down by a panic stricken'passenger fleeing in fear from the scene of defendant’s burning electric trolley car. Plaintiff claims $662.14i for medical expenses, $281 for logs of earnings, etc. and $7,500 for pain, suffering and permanent partial disability to her left arm.

Defendant answered and pleaded that it was not guilty of any negligence, that the fire which occurred was small and of an inconsequential nature, and that the injury which befell plaintiff was not the direct and proximate result of the fire on the electric trolley car.

There was judgment below in favor of defendant, dismissing plaintiff’s suit. Hence this appeal.

The erudite trial judge thoroughly analyzed both the facts and the law applicable to this case in his written reasons for judgment which, in our opinion, cover the case so fully that we adopt them as our own.

“Plaintiff seeks recovery of damages for personal injuries sustained by her when, as a pedestrian on the sidewalk, 30 feet away, she was violently run into and knocked down by another person, allegedly a passenger, fleeing in fright from a burning electric street car, owned and operated by defendant.

“Plaintiff is an elderly white woman, about 68, and a school teacher. Undoubtedly she received painful injuries: a fracture of the left humerus involving the neck of the humerus of the left arm with rotation of said humerus in the glenoid fossa, resulting in 30% residual disability of her left arm. The person who ran into and knocked plaintiff down was a rather hefty colored woman.

“The scene of the accident is Carondelet Street, between Gir.od and Julia Streets, in New Orleans, on June 11, 1948, about 1:30 P.M. The electric street car was on its way to Canal Street, about eight squares away.

“According to plaintiff and some of her witnesses, the street car came down Caron-delet Street like a prehistoric monster, belching fire and brimstone, and sending out a 24 foot flame like a military flame thrower, emitting thick clouds of white smoke and venting sinister hissing and loud explosive noises.

“Plaintiff testified that when she first saw the street car she attempted to seek shelter in the Stephens Auto Company’s office located on Carondelet near her, but was prevented from doing so by the flames which reached the building, which kept her trapr ped on the sidewalk.

“Plaintiff’s electrical engineer (Mr. McDonald) admitted the flame could not have extended more than a foot or two from the street car. It was the flash or reflection, not the flame, that plaintiff saw 24 feet away.

“Defendant’s .version is that a small fire took place in some of the equipment on the otitside of its street car, on the right hand side and underneath, due to a short circuit, causing some smoke to be emitted, accompanied by slight noises; that the car was promptly stopped and the passengers permitted to alight, after which the fire was put out. Defendant denies any negligence on its part, or in any event, any act of its own, negligent or otherwise, was too remote to be the proximate cause of her injury.

“I find that defendant’s electric car was on its way to Canal Street on Carondelet Street. Between Girod and Julia streets a fire developed on its right side underneath, caused by a short-circuit. Within thirty feet, more or less, the car was stopped and the passengers permitted to alight. The conductor went through the car to pacify the passengers, about 35 in number, and to assure them there was no cause for alarm. A few passengers jumped through the windows, but the others left when it stopped, either from the front or rear platforms.

“The short-circuit was at a point between the trolley wire and the circuit breaker, the latter being a mechanical fuse which automatically cuts off the electricity in case of a short-circuit. The short-circuit caused a fire in the junction box under the car, which burned part of the box and the insulation and covering of the wires. Until the trolley was pulled down from the trolley wire, there was an intermittent blue flame, emitting smoke and sparks, likened to the blue flame, flash and sparks resulting from electric welding of street car rails, commonly seen on the streets of New Orleans.

“A short-circuit may result when the motorman feeds electricity too rapidly to the motors. The circuit breaker should cut off the electricity automatically. If the circuit breaker fails to operate, a fire is the inevitable result. Defendant explains that the short-circuit occurred between the circuit breaker and the trolley wire and continued until the trolley was pulled down.

“At the outset, I must state the rule to be that a carrier is not the insurer of its passengers, and certainly not' pedestrians, and is liable for injuries to either, only if caused by its negligence in failing to exercise the proper degree of care, skill and diligence for their safety. The use of standard and safe equipment and its periodic inspection and test is all that is required.

“Where a passenger is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. The carrier may rebut the presumption and relieve itself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent. The carrier need only prove its freedom from negligence, not how the accident happened or who or what brought it about.

“A carrier must use the highest degree of care in selecting safe vehicles and equipment for the safety of its passengers, and these vehicles and appliances must be vigilantly and regularly inspected. Jones v. Baton Rouge Electric Co., La.App., 192 So. 539; Martin v. Interurban Transp. Co. Inc., 15 La.App. 256, 131 So. 514; Connor v. Gardner, 230 Ill. 258, 82 N.E. 640, 15 L.R.A., N.S., 79; Roanoke Railway & Electric Co. v. Sterrett, 108 Va. 533, 62 S.E. 385, 19 L.R.A., N.S., 316, 128 Am.St.Rep. 971.

“And one cannot recover for injuries sustained, even admitting negligence of a carrier, unless such negligence was the proximate cause of such injury.

“If the injury to plaintiff was not likely to result from the accident, and was not one which the defendant could have reasonably foreseen in the light of the attending circumstances, then the accident was not the proximate cause. Unless defendant had reason to anticipate the result of such an accident to one of its street cars would so operate to cause a normal person to run amok and knock plaintiff down on the sidewalk, about 30 feet away, it would not be liable.

“To state the rule briefly: one is not responsible for the results of his acts which are brought about by a chain of circumstances unforeseen, unexpected, and which no reasonable man could naturally have looked for or anticipated. Mauney v. Gulf Refining Co. et al., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780.

“And, of course, the converse is true: Where a person is forced to act under the stress of nervous excitement produced by a peril which confronts him, he is not expected to act with the coolness and precision, nor with the prudence that under other circumstances would be considered an essential of due care. And where one is put in sudden peril by the negligent act of another and, in an instinctive effort to escape from that peril, either suffers injury himself or does injury to a third person, the negligent act is the proximate cause of the injury. The intervening attempt to escape does not supersede the negligent act as the proximate cause of the injury, since it is prompted or set in motion by the negligent act.

“Under this rule a carrier is liable where a passenger or third person is injured in a panic arising when the negligent operation of one of its vehicles produces on apparent peril to one of normal experience and understanding. 52 Am.Jur. 428, Section 80; 38 Am.Jur. 874, Section 194; 38 Am.Jur. 736, Section 77; 35 A.L.R. 1448.

“The character of impending danger or; at least, its apparent character, is to be considered. If one acts unreasonably, or rashly, or becomes frightened at a trivial occurrence, not calculated to alarm a reasonably prudent man, and thereby brings injury upon himself, there is no liability. In considering whether there was justification for a passenger’s action, it is proper to consider the action of the other passengers as part of the res gestae and what was deemed prudent by them. Chretien v. New Orleans Rys. Co., 113 La. 761, 37 So. 716, 104 Am.St.Rep. 519.

“Original negligence is not the proximate cause where there is a totally unexpected act of an intervening third party. Petrich v. N. O. City Park Imp. Ass’n, La.App., 188 So. 199.

“Care or fright as to the probable effect of an act is not to be weighed on a jeweler’s scale, nor calculated by the expert mind of the philosopher, from cause to effect, in all situations. Illinois Cent. R. R. Co. v. Bloodworth, 166 Miss. 602, 618, 145 So. 333, 336; Mauney v. Gulf Refining Co., et al., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780.

“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, without which the result would not have occurred. Williams v. Pelican Creamery Co., La.App., 30 So.2d 574; Cavaretta v. Universal Film Exchange, La.App., 182 So. 135; Moore v. Jefferson Distilling, etc. Co., 169 La. 1156, 126 So. 691;

“From the foregoing rules, plaintiff can recover only if:
“1. Defendant has not satisfactorily proved its freedom from negligence.
“2. Plaintiff’s injury was reasonably foreseeable as a consequence of defendant’s negligent act, and her injury the proximate cause thereof, and not the result of the independent and intervening act of another.

“I must hold that defendant was not guilty of negligence which caused the short-circuit and resulting fire. The testimony convinces me that defendant’s street car was equipped with standard appliances which were properly checked and supervised. The short-circuit and fire resulted in spite of defendant’s skill, care and supervision. The failure of the equipment to properly operate was apparently due to a latent defect not discoverable by care, skill and supervision.

“Mr. McDonald, electrical engineer, when testifying for plaintiff, admitted the circuit breaking equipment used by defendant was standard and he knew of no better or modern equipment that the defendant could have used.

“Even though defendant was responsible for the short circuit and fire, was the resulting injury to plaintiff a natural consequence and the proximate cause thereof? I think not. The occurrence lasted only a short time. The street car was stopped promptly and the passengers permitted to alight with assurances from the conductor. It is true that some jumped from the windows without waiting for the car to stop and the doors to open. The fire caused little damage to the street car and none to any passenger. While it is true that the conduct of other passengers is part of the res gestae and is to be considered to-determine whether the one injured or causing injury to another acted justifiably, it is also-necessary to consider the whole situation and particularly whether the antecedents were usual or unusual in ordinary human experience.

“While defendant’s witnesses all testified that the fire from the short-circuit was the first experienced in over 21 years, the popping of a circuit breaker in a short-circuit and its accompanying hissing noise should be familiar to all who have been passengers on electric street cars. The crackling and hissing of an electric arc light and its blue, flickering flame and reflection are also familiar occurrences in any large city. The intense blue flame, hissing noise .and shower of sparks created by the electric welding of steel railroad tracks, is also a familiar scene in any large city with electric street car systems.

“One of the passengers of the street car testified he waited Until the car stopped before alighting. He thought the noise and flash was from the backfire- of an automobile.

“There are many noises and daily occurrences familiar to human beings that cause a sudden and instinctive reaction, but not to the point that would justify an ordinary and normal person to suddenly 'become hysterical and to run amok and injure anyone in his path. A ■ normal person promptly adjusts himself to a sudden, though familiar occurrence. One is not. responsible for the reaction and damage caused by an abnormal person.

“Had the fleeing passenger injured himself in his mad race to escape, he could not have recovered from defendant. A pedestrian can have no greater right.

“Considering-that the short-circuit which caused the fire was not an unusual occurrence, though the resulting fire was, and that the entire occurrence lasted only a few minutes, I cannot hold that the injury to plaintiff was the direct and proximate result of the fire. To the contrary, it was due to the abnormal reaction of a third person under circumstances not justifying it¡ I can no more hold defendant responsible under the circumstances here than I could it. -Instead of a human being, it was a dumb animal who ran amok and injured plaintiff:

“No damages can be recovered ‘by a bystander for temporary blindness and terrible 'fright and nervous shock due to negligence in causing an iron brace to come in contact with a trolley wire, so as to cause a powerful electric flash of an explosive nature. Chittick v. Philadelphia Rapid Transfer Co., 224 Pa. 13, 73 A. 4, 22 L.R.A., N.S., 1073.

“Since I . find . that defendant was not guilty of negligence, and even if it were, plaintiff’s injury was not the proximate.or foreseeable consequence thereof, but was due to the unforeseeable, irresponsible and unjustifiable act of a third person, there must be judgment for defendant.”

For the reasons assigned the judgment appealed from is affirmed. ’ "

Affirmed.


author: McBRIDE, Judge.

text:
    SCHEXNAYDER v. STANSBURY.
    No. 19430.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.

      Kullman & Lang, New Orleans, Phil Trice, New Orleans, of counsel, for plaintiff and appellant.
    Walter G. Wedig, Jr., New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, Emile Schexnayder, purchased from R. H. Stansbury, doing business as Kwik Motor Company, on or about November 15, 1948, a secondhand, rebuilt 1937 Ford V-8 automobile motor block, for the price of $103 in cash plus a trade-in to defendant of a motor block valued at $35, and by this suit he seeks an avoidance of the sale and a return of the purchase price, alleging that the motor block purchased was cracked and is unfit and useless for the purpose for which it was bought.

Defendant’s answer amounts to a general denial of plaintiff’s allegations. This appeal was taken by the plaintiff from the judgment below dismissing his suit.

Plaintiff and one Bourgeois engaged in the venture of building a motorboat, the size and type of which are not disclosed by the record. The work was done in the basement of Bourgeois’ home./ After the hull of the boat was constructed, plaintiff bought the automobile motor block, believing it to be in good condition, and it was installed in the hull so that the cabin of the boat could be built over it, the -parties intending to' convert the block for use in a marine engine with which the boat was to be propelled. It is disputed whether Stansbury was informed that the purchaser planned to use the motor block for such purpose.

At any rate, more than three months after the sale, the construction of the boat was completed, and Schexnayder and Bourgeois then tested the motor with two hoses running from the motor into a tubful of water serving as a cooling system. After operating the engine for about two hours, it was found that water had entered the crankcase. They then changed-the cylinder head gasket, replaced the oil, and the motor was run for another hour, with the same result. It was then that they discovered the crack in the motor block.

Sometime within the weeks afterward, the block was returned to the defendant, who still has possession of it. There is conflict as to what was said by plaintiff and defendant as to the disposition to be made of the motor block, but that detail is unimportant in arriving at a determination of the case.

Stansbury denies that the block was defective at the time of the sale. He states that he has been in the business of repairing motors for thirty-six years, and that before the sale he made an examination of the motor block, which he had rebuilt, checking it by washing it inside and outside with a steel brush, and that there was no crack.

Schexnayder and Bourgeois, who admit they are not experts and had never before converted an automobile motor to marine use, performed the work themselves in accordance with a set of plans.- They spoke of a mechanic being present when the motor was tested, but this mechanic was not produced as a witness. Stansbury testified :

“Q. Mr. Stansbury, would there be any reason for not using an automobile motor block in a marine engine? A. Yes, sir, there are several reasons. The main thing is they are not built for marine purposes because the pump on the motor fails to pick up the water quick enough, in time, and the heat from the motor when it does pick it up, it being cold, it will crack the block.
»****»
“A. A motor can be cracked from being overheated and when it’s overheated the weakest spot will crack. On the other hand, in testing it you not supposed to put too much pressure- on it because if you do, you might crack it.”

No attempt was made by plaintiff to show the nature of the work -and whether the motor block was properly converted for service in the boat. Also, there being no testimony on the point, we are at a loss to know if the engine was .adequately cooled while being tested. According to Stansbury, an automotive motor block is not adaptable to serve in a marine engine, because the pump on the motor fails to pick up water quickly enough, and when a motor is overheated the block will crack at the weakest point. He is positive the block was not cracked when it left his establishment.

Under the circumstances, we cannot conclude that the motor block was in a cracked condition when Schexnayder bought it. It occurs to us that, perhaps, unskilled labor in altering the block, or the temporary cooling system used in the tests, might well be the cause of the imperfection of which plaintiff complains.

Schexnayder has not borne the burden of proof imposed upon him by law.

A sale may be rescinded at the instance of the buyer on account of some vice or defect in the thing sold, which renders it either absolutely useless., or its use so inconvenient or imperfect that it must be supposed that the buyer would not ■have purchased it had he known of the vice, R.C.C. art. 2520; but the buyer who institutes the redhibitory action must prove that the vice existed before the sale was made to him. R.C.C. art. 2530; Chas A. Kaufman Co. v. Gillman, La.App., 142 So. 159, and cases therein cited.

The judgment appealed from is affirmed.

Affirmed.

JANVIER, J., takes no part.


text:
    MATTHEWS v. NEW ORLEANS TERMINAL CO. et al.
    No. 19356.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.

      James J. Morrison, New Orleans, for plaintiff and appellee.
    Monroe & Lemann, New Orleans, Walter J. Suthon, Jr., New Orleans, of counsel, for defendants and appellants.
   McBRIDE, Judge.

About 1 o’clock, a. m., on February 21, 1948, plaintiff’s automobile was ptruck on its left side by a- Diesel locomotive, at the intersection of Elysian Fields Avenue, and the railroad tracks of New Orleans .Terminal Company, located on the- embankment alongside the Florida Avenue Canal in the City of New Orleans. This suit was instituted for $26,515.83 by plaintiff against New Orleans Terminal Company and New Orleans and Northeastern Railroad Company, the petition alleging that the locomotive was owned by both ,of said defendants.

Plaintiff charges, among other things, (1) that no bell or whistle signal was given by the engineer, (2) that the flasher-light signals placed by the railroad at the crossing we're not operating and failed to give warning of the approach of the train, (3) that the headlight on the locomotive was not illuminated, (4) that the train was being operated at too fast a-speed, and (5) that the engineer was incompetent. Alternatively, assuming-the possibility of a finding of contributory negligence on plaintiff’s part, recovery is sought upon the last clear chance doctrine.

Defendants denied negligence on the part of their employees, and charged that the accident was caused solely through the negligence of the plaintiff, and alternatively the plea is made that the plaintiff was guilty of contributory negligence barring a recovery. The answer denies that defendant, New Orleans and Northeastern Railroad Company, had any participation in the accident, and avers that the accident took place on a track of defendant, New Orleans Terminal Company, and that the railroad movement involved was a movement of said defendant.

A jury trial resulted in a 9-to-3 general verdict for plaintiff for $2,370.40, against New Orleans Terminal Company. Said defendant moved for a new trial, which was refused by the trial'judge with written reasons, and thereupon said defendant prosecuted this appeal from the judgment on the jury’s' verdict. By way of answer to the appeal, plaintiff prays for an increase in the award to the full amount sued'for.

In denying á new'trial, the judge stated:

“I did not agree with the verdict of the Jury. If the case had been tried before me aloné, I would have rendered á. judgment in favor-of-the defendant. While I disagreed with the Jury’s verdict, I did not'régárd the verdict so erroneous that it "could not be corrected bn appeal I had no power to take the case from the Jury and render judgment in accordance with' my own views. On thé motion for a new trial, I 'could only order a retrial before another Jury, but I could' see no useful purpose to be served by ordering a retrial.”
“The record was made up as fully as either side desired to present its case, and there was no suggestion of any newly-discovered testimony in the matter , and - the award was not excessive. Any case that was contested as this one, was certain to be appealed, no matter whith side prevailed at the trial. As the parties had'full opportunity to make up their record, I concluded the case might as well go up on appeal upon the record as made up, in' order to sáve time and expense, and to avoid the delay involved in a retrial at the next Jury Term, and eventually an'appeal.”

' It is the duty of a trial court to see that justice is done between the litigants, and if, in a case tried before a jury, the judge believes that the verdict is unauthorized and unjust, he should grant a.new trial, and the fact that such course may involve time and additional expense is an insufficient reason for his making a verdict, which in his opinion is. not supported by the law and the evidence and will operate an injustice, the judgment of his court. C.P. arts. 521, 527, 541, 560; Act No. 51 of 1908; Burt et ux. v. Shreveport Ry. Co., 142 La. 308, 76 So. 723.

However, in a case where the trial court believes that the verdict of the jury is contrary to the law and the evidence, but refuses a new trial, rather than remand the case, it is, the duty of the appellate court to pass a definitive judgment on the record before it, irrespective of whether the district judge was or was not correct in his refusal to grant the new trial. Aethans v. Toye Bros. Yellow Cab Co., La.App., 191 So. 717.

Plaintiff was driving on the right-hand roadway of Elysian Fields Avenue in the direction of the lake. Said avenue, which runs from the Mississippi River toward Lake Ponchartrain, has a neutral ground in its center 111 feet wide, with a paved roadway 24 feet wide, on each side of the neutral ground to accommodate vehicular traffic. Florida Avenue crosses Elysian Fields Avenue at about a right angle. The distance from the river-side edge of the intersection of Elysian Fields Avenue with Florida Avenue, to the railroad track on which the accident happened, along the paved roadway upon which plaintiff was driving, is about 210 feet. Along Florida Avenue is a drainage canal, across which there is a bridge, and the distance between ' this bridge and the railroad tracks is about 130 feet.

The train, which consisted of a Diesel locomotive and thirteen freight cars attached, was proceeding in a downtown direction, i. e., crossing Elysian Fields Avenue,’ in a movement toward the Press Street yards. In other words, the train approached from plaintiff’s left. The railroad, at this point, is double-tracked, and the tracks are on a slight elevation, and consequently there is a slight upgrade which must be traversed by an automobile crossing the tracks. The train movement was on the track nearer to the river — the first track reached by the automobile.

The tracks curve moderately, but not sharply, as they come toward Elysian Fields Avenue, and the direction of the curve is such as to enable a motorist travelling in the direction as was plaintiff, to see the approaching train by looking to his left and ahead, and was not such as to necessitate a sidewise and backward glance in order to see whether a train was coming. All witnesses, agree that there were no structures or other obstructions of.such nature as to interfere with plaintiff’s view of the train as it approached.

• Although the petition alleges that the railroad employees were guilty of negligence in many respects, plaintiff’s proof has fallen far short of making out a case. The only eyewitnesses to the accident besides plaintiff were the members of the train crew. Plaintiff’s entire version of the accident is set forth in the following extract taken from his direct testimony r “As I approached Florida Avenue which crosses Elysian Fields, I passed a truck. I passed it on my left; the truck was on my right approximately about a half a block before I got to the tracks. So I approached the tracks; I looked in both directions, particularly to the left because there is not a slight bend there, but a rather large bend that would obscure your vision of an on-coming train if you were not careful. I slowed up before I got to the tracks and then started over, but before increasing my speed after slowing up at the grade, there is a grade there, I definitely looked for the signal lights located there, and there was no noise or undue traffic, and I am very positive there were no signal lights working, nor any bells ringing at l^iat time, I attempted to cross the first line of tracks and had a very slight fraction of time before I was struck by the train. I could almost feel, before I could see, the impact of the train upon me. That covers about as far as I could remember. * * *”

At no time did plaintiff refer to the absence of the sound of bell or whistle signals emanating from the locomotive, nor did he make any allusion to the headlight of the locomotive.

On the other hand, members of the train crew testified that bell signals were given, and that the air horn of the Diesel engine was sounded while the train approached the crossing, and that the signals, both by means of the bell and the air horn, were given for other nearby crossings as well. They agreed also that the headlight bn the- locomotive was brightly illuminated. This testimony of the crew members, being absolutely uncontradicted, must be accepted as being true.

It clearly appears from Matthews testimony that before increasing the speed of the automobile after slowing at the upgrade, his undivided attention was directed toward the flasher-light signals, which he insists were not in' operation at the time and gave him no warning of the approach of the on-coming train.

Appellant concedes that the crossing in question, at the.intersection of a railroad track and a paved street, is one which Ordinance No. 14,114, C.C.S., of the City of New Orleans, requires be protected by an automatic flasher signal light installed by the railroad. Appellant, at the time of the accident, admittedly had such an automatic signal device, which included an automatic bell, at the paved roadway on which plaintiff drove toward the lake, and that the signal device faced in the direction from which traffic on that roadway approached. The trainmen all testified that the signals were properly functioning.

No useful purpose whatever would be served by resolving the question whether the crossing signal lights were properly operated, or for that matter if they operated at all. However, assuming arguendo that the lights were npt flashing, such fact of itself would not relieve plaintiff of the duty imposed upon him by law to stop, look, and listen for approaching trains, and by the exercise of prudence and vigilance to avoid placing himself in a position of imminent peril.

The pertinent principle of law is stated in Brown v. Texas & Pacific Ry. Co., 42 La.Ann. 350, 7 So. 682, 684, 21 Am.St. Rep. 374, thus: “Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railway crossings; but no failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing upon approaching a railway crossing, and, whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.” See also Tucker v. Illinois Central R. Co., 141 La. 1096, 76 So. 212, and the cases there cited.

See also Gibbens v. New Orleans Terminal Co., 159 La. 347, 105 So. 367, and Martin v. Yazoo & M. R. Co., La.App. 181 So. 571, wherein it was held that an open gate or the absence of a flagman at a crossing does not constitute an invitation to a motorist to proceed onto railroad tracks without first stopping, looking, and listening.

On cross-examination, the following testimony was elicited from plaintiff:

“Q. And you are positive that you looked particularly to the left as you were going up towards the tracks and you neither saw nor heard anything of an approaching train? A. I am very sure.
“Q. Did you ever come to a stop as you were going up there towards the tracks, or' did you just slow down? A. I don’t want to imply I stopped for 2 or 3 minutes, but I did stop and shift gears.
“Q. You did stop and shift gears? A. Yes, sir.
“Q. Where was that; before you reached the bridge? A. Slightly before the bridge.
“Q. Before the bridge? A. Yes, sir.
, “Q. And then you went on forward without stopping again? A. Yes, sir.
* * * * * *
“Q. Now, how close to the track were you when you first realized that the train was coming? A. I was on the tracks before I realized it was on top of me.”

The point referred to by plaintiff, at which he says he stopped and shifted gears, was at least 160 feet from the 'crossing, and a stop with an observation at such a remote point can hardly be said to be such a precaution as would have been a stop and observation made nearer to the tracks.

It was said by the Supreme Court, in Young v. Louisiana Western R. Co., 153 La. 129, 95 So. 511, 512, that: “The duty to stop, look, and listen must be performed at a time and place where stopping, looking and listening will be effective.”

If Matthews looked in both directions, as he maintains he did, the observation took place when he stopped and shifted gears, just before reaching the bridge spanning the canal, and taking his testimony to mean that he maintained a constant lookout for trains as he drove toward the tracks after stopping and shifting gears, we can perceive-of no reason whatever why he should not, by the exercise of his senses of sight and hearing, have become cognizant of the approach of the train.

The record is barren of any testimony showing :at what rate of speed plaintiff travelled from the bridge to the upgrade, or to what extent he retarded the momentum of his car upon arriving at the upgrade. Whether Matthews had his vehicle under such control that he could stop immediately if danger confronted him, is a question that cannot be determined from the record.

The law makes it the duty of a motorist to stop before traversing a railroad track, but that rule is not to be so rigorously construed as to require a position of absolute immobility, and it will suffice for such person to have the motion of his vehicle so retarded and under such control that he can stop instantly if need be, provided, however, he exercises due care in looking and listening for an approaching train. Another step is also necessary. He must see that which may be seen, and hear that which may be heard, and he is held to have seen that which he could have and should have seen. Slayter v. Texas & P. R. Co., La.App., 182 So. 343; Gibbens v. New Orleans Terminal Co., supra; Aymond v. Western Union Telegraph Co., 161 La. 184, 91 So. 671; Robertson v. Missouri Pacific R. Co., La.App., 165 So. 527.

What was said by the Supreme Court, in Perrin v. New Orleans Terminal Co., 140 La. 818, 74 So. 160, 162, is appropriate to the instant case: “It is not possible for plaintiff to have 'taken the care which he says -he took On the day of the accident, and yet to have been struck by the train ' of the defendant. * * * ”

Likewise appropriate is the language used by the court in Henderson v. Missouri Pac. R. Co., 15 La.App. 196, 131 So. 586, 587: * .* * Therefore, the fact that plaintiff did not §ee the train until the automobile got up on the track is proof sufficient that he did not look for it until then.”

Plaintiff’s own recital of his approach to and the ill-timed attempt to cross the railroad tracks, convinces uc absolutely that he did not in the least take those precautionary steps which the law expected of him and which common sense and prudence dictated were proper under the circumstances prevailing at the crossing.

It is elementary that where the negligence-of a claimant for damages contributed to the accident, he should be denied a recovery, irrespective of the fault of the other party, and since we have reached the conclusion that the proximate cause of the collision was plaintiff’s own negligence, there is no necessity for passing-upon the question of primary negligence on the part of the. employees of appellant’s railroad.

Left only for determination then is whether the operator of the locomotive had the last clear chance and opportunity of avoiding 'a collision with Matthews’ car.

Plaintiff, in arguing the applicability of the doctrine, maintains that the locomotive was not timely stopped because it was in charge and under control of an incompetent and inexperienced operator.

The locomotive was being driven by the fireman, Flores, a young man who was at the time twenty-five years of age. He 'entered the service.of the.railroad during 1941, and after • nineteen months of that service he entered the Army and remained in military service for about thirty months, during practically all of which time he worked in military .railroad duty as fireman and engineer. He resumed employment with appellant in 1946, and about one year later qualified -as an engineer. Since such qualification, he has worked in the capacity of an engineer whenever that position was open to one of his seniority, as much as several 'times, in each month. When serving as fireman in a train crew, he oftimes takes the engineer’s post, which he had done at the time of the accident, in the place of Salaun, the regular engineer, who was riding with him in the cab of the engine. Nothing appears in the record which could possibly lead to a finding that Flores was an inexperienced or incompetent engineer. We are unaware of any legal disqualification or presumption of incompetency attaching to a person of his age functioning at the throttle of a locomotive.

It is conceded that the train was moving at a speed of about fifteen miles an hour, which certainly cannot he said to be excessive. It appears that the brakes on the train were in good 'working condition and functioned properly when applied upon the occasion of the accident. The train was brought to a stop about 100 feet after striking the’- automobile.

An analysis of all of' Flores’ testimony reflects that he saw the automobile (identifying it tó be such by its headlights) approaching at about thirty miles an hour, at a considerable distance away from the tracks, when the locomotive had reached about 100 feet before coming to the first paved roadway of Elysian Fields Avenue, or about 230 feet from the point of impact, and that he expected the automobile to stop before going upon the tracks.

When the train was at about the middle of the neutral ground, some sixty feet from the crossing, Flores then realized that the automobile was not going to stop, and he immediately applied the emergency brake', but the stopping 'distance' was too limited, and the collision ensued. Flores stated that when an automobile' is observed approaching the tracks, an engineer cannot determine, whether the driver will stop for' the crossing, until the car has reached close proximity to the tracks and the driver’s intention becomes manifest.

Counsel for appellee introduced into the evidence a statement made by Flores to the police officers a few hours after the accident, and points to that part of the statement which reads: “ * * * I noticed an automobile traveling on Elysian • Fields going towards Gentilly and I noticed that this automobile was not going to-stop and I immediately applied the, brakes of the train, * * *

Counsel argues that when Flores first' saw the automobile, the train was 23S feet or more from the paved roadway on which the Matthews car was moving, contending that according to the statement Flores knew at that time that it was not the intention of the driver of the automobile to stop for the crossing, and that Flores was under the duty of then immediately applying his emergency brakes.

It seems to us that counsel attempts to place a strained construction on the above-quoted portion of the operator’s statement, and the import which we gather from the language does not coincide with counsel’s opinion as to what Flores meant.

-Such a ■ situation has b'eén discussed by the courts on 'several Occasions. In Levy v. New Orleans & Northeastern R. Co., La.App., 20 So.2d 559, 565, appears the following comment: “* *■ * The crew sees many automobiles driving towards ‘ the crossing and they assume, as they are justified in doing, that each car is going to stop. See Cook v. Louisiana & N. W. R. Co., 130 La. 917, 58 So. 767; Guillot v. Louisiana Rwy. & Navigation Co., 3 La.App. 541; Perry v. Louisiana & Ark. Rwy. Co., La.App., 142 So. 736. Those in charge of a train are. not required to bring it to a stop unless there is reaspn to believe that the driver of the approaching car is oblivious of the on-coming train. * * * ” - .

' It is a well-known fact that an automobile can be stopped more quickly than a train, and the ascending grade to- the tracks, which Matthews had to traverse, could have facilitated an immediate stop of his automobile -at the base of the grade, had the car been under proper control and its speed moderated -to the proper extent.

Respecting the doctrine of last clear chance, the situation in the instant case is'similar in point of fact to that'which prevailed in the -case of Levy v. New Orleans & Northeastern R. Co., supra, in which application of the doctrine was rejected by the court in the following languáge: “ * * * The last -clear chance' here rested not in the crew of the train but in Mrs. Levy for it is made very clear that after the locomotive reached a point so near to the crossing that it could not be stopped there yet remained time for' her to stop her automobile-had she been aware of the danger as she-should have been. Therefore, because of' the contributory negligence of Mrs. Levy there can be no recovery,by plaintiff for her death.”

In Eggleston v. Louisiana & A. Ry. Co., La.App., 192 So. 774, 780, is to be found the following language: “ * * * Can it be said, however, that the engineer could and should have discovered the perilous situation earlier and when a sufficient distance away to prevent the accident through appropriate application of the brakes? We think not. The statutory law and jurisprudence of this state require that ordinarily a motorist give 'heed to a train approaching on a railroad crossing. In view of this requirement and as the train involved was plainly visible to the occupants of the Pontiac sedan and they were properly warned of its oncoming, the engineer was entitled to assume, when at least four seconds from the point of contact, that said automobile would come to a stop and not rush into the path of travel. * * * ”

The situation existing here is comparable to that which existed in Young v. Louisiana Western R. Co., supra, wherein appears the statement [ 153 La. 129, 95 So. 512]: “The last chance doctrine has no application when the negligence of both parties was concurrent and continuous, down to the moment of the accident. Callery v. Morgan’s La. & T. R. & S. S. Co., 139 La. [763], 770, 72 So. 222; Wolf v. New Orleans Ry. & Light Co., 133 La. 891, 63 So. 392; Castile v. O’Keefe, 138 La. 479, 70 So. 481.”

The two authorities cited by appellee and contended as being controlling, Russo v. Texas & P. Ry. Co., 189 La. 1042, 181 So. 485, and Browne v. Texas & P. Ry. Co., La.App., 193 So. 511, are not apposite to the instant case. In each of the cited cases, a pedestrian, and not a motor vehicle, was struck by the train, and the court, in both instances, was of the opinion that the close proximity of the pedestrian to the tracks, and his posture and movements, were sufficient to indicate to the average mind that he was unaware and unmindful , of the train’s approach, and that the engineer should have acted and responded accordingly.

Appellee’s counsel, vigorously contends that the court should not disturb a jury verdict on what is predominantly a question of fact, arguing that nothing in the record indicates' that the verdict is arbitrary or insupportable' by the evidence.

The court, in Pouncy v. Temple, La.App., 41 So.2d 139, 141, discussed the scope of appellate review of jury cases involving questions of fact, as follows: “As above observed plaintiff requested and was granted a trial by jury which found for the defendants. Plaintiff zealously urges that this Court refrain from according any considerable weight to the findings of the jury. It is our view that the same weight, no more and no less, should be given the findings of a jury on questions of fact as is accorded those of a trial Judge. The findings of fact evidenced by the verdict of a jury should be carefully scrutinized and examined on appeal but -should not be disturbed except in instances of manifest error. It is the province and obligation of this Court to carefully examine the facts as well as the law, * *

Other cases in which will be found like holdings are: Fontenelle v. Waguespack, 150 La. 316, 90 So. 662; Thrash v. Continental Casualty Co., La.App., 6 So.2d 75; Hill v. Louisiana Coca-Cola Bottling Co., La.App., 170 So. 45; Cimo v. Karstendiek, La.App., 173 So. 348; Despommier v. Louisville & Nashville R. Co., 8 Orleans App. 157; and Mire v. Yazoo & M. V. R. Co., 4 Orleans App. 256.

Aftér a careful study of the case, we readily agree with the opinion of the trial judge, that the verdict of the jury should have been in favor of the railroad. The- fact that the jury was divided (three members thereof having disagreed with the findings of the majority) is also a persuasive factor in the present case. However loath an appellate court may be to disturb findings of fact made by a jury, it is nevertheless, under the system of procedure obtaining in Louisiana in civil cases, the court’s duty to render such judgment as the record warrants, which should have been rendered by the trial court in the first instance, whether the case turns upon an issue of fact or of law. Hebert v. N. O. Public Service, Inc., 10 La.App. 341, 119 So. 575.

In Anderson v. Texas & P. Ry. Co., 139 La. 1104, 72 So. 751, 752, we find these expressions : “After all the facts of this case are considered, the mind is left in a condition of uncertainty fatal to plaintiff’s case. Such, too, is the impression which the learned trial judge had of the case, who refused a new trial simply because he thought the case had better be left to come at once to this court. * * *”

Therefore, holding that the judgment appealed from is manifestly erroneous and contrary both to the weight of the evidence and to the law controlling the case, We order, adjudge, and decree that the judgment be reversed, and that plaintiff’s suit be dismissed at his cost.

Reversed.

REGAN, J., concurs.


author: FRUGE, Judge ad hoc.

text:
    KENABREW v. SCHNEIDER et al.
    No. 3239.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Raymond H. Saal, Covington, O. H. Dabezies, New Orleans, for appellant.
    Sidney W. Provensal, Jr., New Orleans, for appellee.
   FRUGE, Judge ad hoc.

Plaintiff filed suit against Mrs. Louise Manion Schneider and her husband, Claude Schneider, to recover for tutoring of their minor child. The husband, .defendant Claude Schneider, filed exceptions which were maintained as to him. Defendant answered alleging that her husband had agreed to pay for the education of the children, furnish them with wearing apparel and give them each $50.00 per month for incidental expenses. She ffirther urged that on the trial for separation filed by her against her husband he agreed to pay for the education which was recognized by the Supreme Court of Louisiana in its decision affirming alimony.

The record does not contain any transcript of the testimony taken on the trial nor is there any statement of facts either by joint agreement of counsel or by the judge of the trial court. The trial judge rendered judgment dismissing plaintiff’s suit against the defendant, Mrs. Schneider, ■for .reasons orally assigned and for the written reason “that the obligation was an obligation of the community and not of the wife.” Plaintiff appeals.

In this court plaintiff has filed a motion to remand for a trial de novo in order to secure the retaking of the testimony. She alleges in her motion to remand that the official court stenographer has either lost, mislaid, or destroyed her notes of the testimony taken at the trial.

Defendant, Mrs. Schneider, has filed a m.otion in this Court to dismiss the appeal. She contends that we cannot .entertain this appeal, f.or the;reason that the-.r.ecord does not contain any transcript of the testimony taken on the trial on the merits, and for the further reason that the record1 is devoid of a joint statement of the facts by the attorneys or a statement by the Trial Judge. She relies on the following authorities :

Code of Practice, 'Article 602 reads: “When the deposition of witnesses have not been taken in writing in the inferior court, the party intending to appeal, or his advocate, must require the adverse party or his advocate, to draw, jointly with him, a statement of the facts proved in the cause, and this statement thus drawn and signed, either by the ' parties ' or their advocates, shall be annexed to the records, and a transcript of the same transmitted to the Supreme Court.”

Code of Practice, Article 603 reads: “If the adverse party, when required to do so, refuse to join in making . out the statement of facts, or if the parties can not agree •as to the rq-anner.of drawing the same, the court, ^t, the request of either, shall make such statement according to their recollection of • the facts,- or from the notes they have taken of the evidence.” .

“To remand the case, for the reasons assigned by appellant; would be the equivalent of. allowing .him. two trials, which is not permissable .in ■ view of .the record facts. He-has had his,day in court” Chelette v. Roberts, La.App., 185 So. 678.

“ * * * The only relief that could be hoped for, from the appellate court, by a litigant whose case depends upon verbal testimony: and who goes to trial without having the testimony -taken down, and intends not to- avail himself of articles 602 and 603 of the Code of Practice if he- appeals from the final judgment, is to have two trials, instead of one trial of the case on its merits in the court of-original jurisdiction. If the record filed in an appellate court does not ¡contain a transcript, of the testimony, or a statement of facts agreed to by the parties or fqrnished by the judge, and the correctness of the judgment appealed from depends upon the verbal testimony that was heard, the appellate court must dismiss the appeal. Cooley v. Broad, 29 La.Ann. 71.” Williamson v. Enterprise Brick Co., Inc., 190 La. 415, 182 So. 556, 558.

We are frank to admit, that the above authorities made a great impression on us initially, but. upon further consideration we have come .to the conclusion that- we should remand this case in order that the trial may be had de novo. We do not believe .that it is appellant’s fault that the stenographer in this case failed to transcribe the notes of evidence. The case of Dreher v. Guaranty Bond and Finance Co., Inc., et al., 188 La. 421, 177 So. 259, is applicable here. We quote the syllabus: “Where stenographic notes of evidence had not been transcribed and stenographer who took testimony had left state and had lost his stenographic .notes and absence óf testimony was not attributable to appellant, judgment was required to be reversed and case remanded for new trial (Code Prac. art. 906).”

Also the earlier case of Duprat v. Powell, 162 La. 859, 111 So. 259, being another Supreme Court case. In the Duprat case the court stenographer had died before transcribing the evidence and the. Supreme Court remanded the case for trial de novo. We gather from the pleadings that the plaintiff has the unquestioned right to recover for her services — the issue is from whom ?

It does not appear from the record that counsel argued the application of the provisions of Act 283 of 1928 with respect to the emancipation of married women. Be that as it may, we believe the ends of justice would be best served by remanding this case to be tried de novo.

The judgment of the Trial Court is therefore accordingly reversed and this case is remanded to the Trial Court to be tried de novo, not inconsistent with the views expressed herein.

Remanded.


author: DORE, Judge.

text:
    CHAPMAN v. TRAVELERS INDEMNITY CO. et al.
    No. 3232.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Reid & Burch, Amite, for appellant.
    Durrett & Hardin, Baton Rouge, for ap-pellee.
   DORE, Judge.

This is a suit for personal injuries allegedly sustained by the plaintiff in a collision between a Chevrolet automobile driven by her husband, Thomas E. Ohapman, in which she was riding as a guest, and a Ford automobile being driven by Mrs. Paul Nicolo-si, which occurred on December 13, 1945, at about 4:30 P.M., on United States Highway No. 190, between Baton Rouge and Hammond, approximately three miles West of Hammond. The highway at the point of collision runs East and West, is concrete, eighteen feet wide, and straight and level, but at the time of the accident visibility was very poor since it was apparently drizzling at that time and had rained hard shortly before. The plaintiff’s husband, accompanied by plaintiff, who was riding on the front seat to his right, was driving West, and Mrs. Nicolosi was driving east, and as she made a left turn to enter the driveway of her home, located on the north side of the highway, the right rear fender of the Chapman automobile struck the right rear fender of the Nicolosi .automobile and then swerved towards the south lane of the highway and struck .an oncoming truck. In the collision, Mrs. Chapman, the plaintiff, was thrown out of the car and into the ditch on the north side of the highway. She was rendered unconscious as a result of her injuries and was taken to the Wiginton -Infirmary, in Hammond, for treatment. She filed suit against the Travelers Indemnity Company as insurer of her husband and also against Mrs. Nicolosi as driver of the Ford automobile and Mrs. Nicolosi’s husband, on the allegation that she was on a family mission, demanding damages for personal injuries in the total sum of $21,000.

The petition in effect alleges that the accident was caused by the negligence of plaintiff’s husband or the negligence of Mrs. Nicolosi or the concurrent negligence of both. In her petition -she relies on the doctrine of res ipsa loquitur on the theory that how the accident occurred is within the knowledge of the respective drivers of the two cars and that it is incumbent upon each driver to prove freedom of negligence; otherwise, under the doctrine, if either should fail to establish freedom of negligence, he or she should be held guilty thereof and judgment granted accordingly to the plaintiff. In the alternative, she does allege negligence on the part of both her husband and Mrs. Nicolosi.

The defendant, Travelers Indemnity Company filed an exception of no cause and no right of action on the ground that since the law deprives her of any right of action against her husband that it. should follow that she should have no right of action against her husband’s insurer and that the jurisprudence to the contrary is incorrect. Judge Robert S. Ellis, Jr. overruled the exception, basing his decision on the Supreme Court decisions which grant a direct right to a wife against her husband’s insurer.

' The defense of Travelers Indemnity .Company in its answer is to the effect that their assured was guilty of no negligence which contributed to the accident and that the sole proximate cause of the accident was the negligence of Mrs. Nicolosi in attempting to negotiate a left turn in the face of the oncoming Chapman car when she knew or should have known that she had insufficient time to complete her turn. This defendant, in the. alternative, pleads that in the event their assured should be found guilty of any negligence contributing to the accident, then in that case, Mrs. Ohapman Should be found guilty of contributory negligence barring her recovery based on the theory that she in no manner made any protest about any of the alleged acts of negligence of her husband in spite of the fact that she was sitting by him' on the front s.eat of the Chevrolet automobile and was in a position to observe his actions.

'The defense of Mrs. Nicolosi is to the effect that the accident was caused solely by the negligence of Mr. Chapman and that she was free of any negligence. She contends that she had already completed her left turn and was off the pavement when the Chapman car struck the rear of her car and that- the only reason for the collision was that Chapman was driving at an excessive rate of speed and was not keeping a proper lookout and keeping his car under proper control; that she had given a -left signal a considerable distance before making her turn, and that this signal was not heeded -by Chapman.

Mr. Nicolosi makes the same defense as his wife, plus the additional defense that at the time of the collision she was not on any mission on behalf of the community, but was strictly on a personal mission.

After trial of the case, the trial court rendered judgment in favor of plaintiff, and against the defendant, The Travelers Indemnity Company, in the sum of $3,000.00, plus legal interest and costs. From the judgment, the defendant, The Travelers Indemnity’ Company, has perfected the present appeal and urges the same exception and defenses which it made in the lower court. The plaintiff has answered the appeal ¡by praying that the judgment be increased from $3,000 to $10,000, or, in the alternative, that it be affirmed.

The judgment also dismissed the suit against the defendants, Mr. and Mrs. Nico-losi, and since the plaintiff has made no appeal from the judgment, in so far as these defendants are concerned, they are no longer. involved as parties in the case on this appeal.

The only question before us on appeal is whether or not the judgment rendered by the trial court in favor of plaintiff against Travelers Indemnity Company in the sum of $3,000, with interest and costs, is correct, or if incorrect, whether it should be dismissed, or whether the judgment should be increased.

The first question to be considered is whether or not the exception was correctly overruled. On that question, the jurisprudence of this state supports the right of action of plaintiff against the insurer of her husband. The last decision of the Louisiana Supreme Court on that, point is -the case of LeBlanc v. New Amsterdam Casualty Co., 202 La. 857, 13 So.2d 245, 246, in which is stated: “Furthermore, the plea of inter-spousal immunity, available to the ¡husband in defeating any recovery sought by.his wife for injuries sustained by her through his negligent operation of an automobile, is personal to him and, therefore, not available to the insurer of the husband’s employer. See Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191, and Ruiz v. Clancy, 182 La. 935, 162 So. 734.”

In view of the jurisprudence we hold that the exception of no right or cause of action was correctly overruled.

On the merits we have the testimony of Mrs. Paul Nicolosi, of Mrs. Chapman, the plaintiff, and of Fred Ratliff, driver of a gas truck, who was following the Nicolosi automobile, and Mrs. Josephine Costanza.

Mrs. Nicolosi testifies that for about 300 feet or more before meeting the Chapman car she was driving very slowly with her left hand extended outside of her-car and she further states that she was being followed by two trucks and that they were driving very slowly, it being apparent that they were awaiting a clearance of the west bound lane. She further states that when the Chapman car approaching the west bound lane came within approximately 50 feet of her car, she made a quick left turn directly into the path of the oncoming Chapman car and towards the private driveway of her home. She contends that her car was completely on the shoulder of and off of the highway and that it was struck on the right rear fender by the right rear fender of the Chapman car.

The testimony of the truck driver immediately to her rear, Mr. Fred Ratliff, corroborates Mrs. Nicolosi’s testimony with reference to her maneuvers in driving slowly and having her hand extended outside the left window of her car, indicating some sort of signal. He states that he slowed down because he had no idea as to which side of the highway Mrs. Nicolosi planned to turn since there were several driveways along both sides of the highway near this point. He further states that when she was approximately 50 feet from the Chapman car and almost stopped, she made a quick left turn and that the Chapman car thereupon applied his brakes and skidded in such manner that the right rear fender of the Chapman car struck the right rear fender of the Nicolosi car and thereupon swerved on to his truck’ striking his truck with the left fender -and continuing along the left- side of his truck and about the same time the second truck struck the rear of his truck and-pushed it into the ditch on the south side of the highway. His testimony is to the effect that the Chapman car never left the highway and that the only parts of the Chapman . car which were damaged were the right rear fender where it struck the Nicolosi car, and the left rear fendér where it came in contact with his truck. ' From his testimony it does not appear that the Nico-losi oar could have been completely off the highway as testified by her.

■ Neither Mrs. Nicolosi nor Mr. Ratliff could estimate the speed of the Chapman car.,

Mrs. Chapman’s testimony as to how the accident happened is very vague in the most part and it is apparent that "she is-relying mostly on the doctrine of res ipsa loquitur on the theory that it was incumbent on the drivers of the two colliding vehicles to prove freedom from negligence. She does testify that she .has no recollection of making any remonstrance to her husband for driving negligently; that her husband was a careful driver; that just prior to the accident'he was driving at his usual speed and with his usual degree of care and that'although on prior occasions she had remonstrated with him, she remembered making no such remonstrance prior to this accident; that in effect he was driving at his usual speed of about 45 miles per hour. It is significant to note that she testifies that .when she observed Mrs. Nicolosi’s car making a quick turn in front of them, that she threw her hands over her eyes and screamed, “Loo.k at that fool woman.” Her •testimony is to the effect that Mrs. Nico-losi’s car loomed up in front suddenly and she thereby corroborated the testimony of Mrs. Nicolosi and of Mr. Ratliff, that Mrs. Nicolosi made a quick turn just before Chapman got to her.

The other witness, Mrs. .Josephine" Cos-tanza, testified that 'she lived on the south side of the highway about 100 feet from the highway and that she was sitting on her porch which was approximately level with the highway; that she witnessed the- whole accident, and that when Mrs. Nicolosi negotiated the left turn the Chapman car was about 100 feet east of the Nicolosi car (she first said one block, but on cross-examination, admitted that the distance was approximately the same as the distance of her porch from the highway; that is, about 100 feet). She further stated that when the collision occurred the Nicolosi automobile was off the .pavement and on the shoulder. She admitted, however, that she did not 'see the Nicolosi car after the accident, because she could not cross the highway due to the fact that so many automobiles and people had arrived at the scene immediately after the accident. She also admitted that her porch was practically level, with the highway and it is difficult to see how she could tell the position of the Nicolosi car at the time of the collision. Her testimony does not impress us.

The above just about sums up-all the testimony . introduced at .the trial. The plaintiff contends that, defendant should have placed her 'husband, the assured of (defendant, on the stand ancl that its failure to do so‘established the presumption that his testimony would have been adverse to defendant. The defendant attempted to call plaintiff’s husband on cross-examination, but was met with the objection of plaintiff, which objection was sustained. Plaintiff’s husband could just as well have been called by plaintiff herself as ■ her witness. We agree with the contention-of the counsel for defendant that the' testimony of this witness, if prejudicial, would naturally have been in favor of his wife’s case, and we do not believe, in view of'that fact, that the defendant can be blamed for not using ■him as its witness.

The same point is raised by the plaintiff with reference to the failure of defendant- to place a Mr. Armstrong, driver of the truck proceeding in the rear of the truck being driven by Mr. Ratliff, on the stand. An attempt, was made by defendant to secure the' testimony of this witness and it seems that he was-present-on former occasions -when the ease was called for trial, but on the morning of the trial he had left town on a trip for his company, and hence, his testimony was dispensed with. Also, -as brought out by counsél for defendant, this witness was just as available to the plaintiff as to the defendant, and could' have been called by her as- readily as by defendant. We cannot agree with plaintiff’s contention that it must be presumed that this witness would have testified adversely to the defendant.

The facts established by’the evidence in this case are similar to the facts in the case of Malone v. Fletcher, La.App., 44 So.2d 352, recently decided by this court and which also involved a quick left turn. In that case, we stated that the law involved was as follows-: “ * * * that the burden is on the operator of a motor vehicle who desires to make a left, turn, carries the responsibility of being certain that the turn can be made without danger.to normal overtaking or oncoming traffic, and he must yield the right of way to such vehicles.” Citing Michelli v. Rheen Mfg. Co., La.App., 34 So.2d 264; Gomez v. Broussard, La.App., 34 So.2d 643; Lane v. Bourgeois, La.App., 28 So.2d 91; Seale v. Stephens, 24 So.2d 651; Home Insurance Co. v. Warren, La.App., 29 So.2d 551.

We 'also found that the Fletcher car was traveling at approximately '65 nü'Ies per hour and the plaintiff (on making a'left turn), was 'traveling at a very slow rate of speed. We also found that the preponderance of the evidence sho.wed that., the. individual making the left turji had made ,a left turn signal about 60 feet before negotiating his turn and at that time the oncoming automobile was some 300 feet’- from him. In the cited case, visibility was good and the road dry. In the case at-bar, the road was wet and visibility was poor. Also, in the case before us, the Chapman car was traveling about 45 miles per hour as contrasted with 65 miles per hour in the cited case, and in the case át bar, the left turn was negotiated when the oncoming car- was not more -than 100 feet and probably 50 feet from .the car making the left turn, whereas, in the cited case, the Oncoming .car was probably 300 feet from the car making the left turn. In both cases, thé- drivers of the cars applied'their brakes, as soon as the-other car was seen, in an attempt to avoid a collision. In both -cases, there is the question in dispute as to the actual point of collision. In both cases it is contended that the collision actually occurred off of the pavement. In the cited case we stated [44 So.2d 353]:

“Even if plaintiffs contention were correct, that the collision occurred on the shoulder and not on the pavement, it appears to us that from the evidence that his maneuver in making the left turn ahead of a rapidly traveling, oncoming car was negligent and that he thereupon created an. emergency which Fletcher tried to overcome to the best of his judgment. However, the large preponderance of the evidence is that Fletcher never left the pavement, and that consequently, plaintiff Malone had not completed his’ left turn at the time of the collision.
“It appears to us inescapable, as found by the trial judge, that plaintiff Malone, having se'en the approaching car, should have conceded the right-of-way to the approaching car and waited until it had -passed him before negotiating the left turn. Fie therefore did not sustain the responsibility of being certain that the turn could.be made without danger to oncoming traffic as required by law, qnd he has therefore failed to sustain the burden of proving his case. From the evidence, we fail to' find any negligence whatsoever on the part of defendant Fletcher.' * *, /'

It is our conclusion that the negligence of Mrs, Nicol-osi is exactly the same as that of Malone in the cited 'case, and that, consequently, her negligence was the sole proximate cause' of the accident, and further, that the evidence shows that Mr. Chapman was free of negligence - in the same manner that Fletcher was free of negligence in the cited case.

In so far as plaintiff’s reliance on the doctrine of res ipsa loquitur is concerned, we are of the opinion that this doctrine can be properly applied only to' cases in which the defendant has entire knowledge -and complete control of the only instrumentality or mechanical: device involved in the accident, which is definitely not the case here. Dunaway v. Maroun, La.App., 178 So. 710.

Therefore, it is our conclusion that plaintiff has failed to establish any negligence on the part of Chapman, and we do not agree with the trial judge that the plaintiff .has sustained the burden of proof. The trial judge’s main reason for holding Chapman negligent is the fact that it was definitely shown that Mrs. Nicolosi signaled her intention of máking a left (hand turn about 150 feet before making the turn, and that: “It is reasonable to believe that if the witness Ratliff could see the signal given by Mrs. Nicolosi, * * *, that Chapman should have also seen the signal and governed ¡himself accordingly. His failure to observe the traffic signal given by Mrs. Nicolosi constituted negligence on the part of Chapman, who proceeded West at a rather rapid rate of speed and collided with the rear end of the Nicolosi car after she had completed her turn and was off of the paved portion of the highway, which negligence was the proximate cause'of the accident and the resulting injuries and damages.”

We cannot agree with the trial judge that the left hand signal of Mrs. Nicolosi could be seen as easily by Chapman as by Ratliff for the reason that Ratliff was immediately in the rear of the Nicolosi car, whereas, Chapman in the oncoming car was probably some 300 feet to the west at the time she began her signal, and visibility was poor, and he obviously had to center his .attention to his lane of traffic. Moreover, we cannot agree with the trial judge that Chapman was driving at an excessive rat.e of sipeed, nor do we agree with his statement that Mrs. Nicolosi had completed her turn and was off of the paved portion of the highway.

It is our opinion that even if the doctrine of res ipsa loquitur would apply in this case, that the evidence absolves Chapman of any negligence and, therefore, the case against the defendant should have been dismissed.

We concede that the finding of fact of the trial judge must be seriously considered and that if it is not manifestly erroneous, the judgment should be affirmed, but we strongly disagree therewith.

For these reasons assigned, the judgment appealed from is annulled, reversed, and set aside. It is now ordered that there be judgment in favor of the defendant and against plaintiff, dismissing her suit at her costs.


author: McBride, judge.

text:
    WEBER v. KIECKHEFER CONTAINER CO. et al.
    No. 19342.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.
    See also, La.App., 42 So.2d 103.

      Connolly & Simoneaux, New Orleans, for plaintiff and appellant.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for defendants and appellees.
   McBride, judge.

This appeal was perfected by plaintiff, Ernest Weber, from a judgment dismissing his suit against his employer, Kieck-hefer Container Company, and its liability insurance carrier, American Mutual Liability Insurance Company, for workman’s compensation for 400 weeks at $20 per week (less 100 weeks compensation already paid). Plaintiff suffered an accident in the plant of Kieckhefer Container Company on or about August 19, 1946, which resulted in the loss of the sight of his left eye, and he claims that he is totally, permanently disabled from doing work of any reasonable character, within ■ the contemplation of the Workmen’s Compensation Act.

In their answer, defendants deny that plaintiff is totally, permanently disabled. They aver that he was paid compensation ■at the rate of $20 per week for 100 weeks for the loss of an eye, under Section 8, Subsection 1, Paragraph (d), Subpara-graph (9) of the Act, as amended by Act No. 242 of 1928, p. 357, and that he is entitled to no further compensation. The answer alleges that plaintiff has returned to his former employment as general maintenance mechanic in the plant of Kieckhefer Container Company, and has been working continuously at that job, up to the time of the filing of the answer, at a higher rate of pay than he received at the time of the accident.

Weber was hired as a maintenance mechanic, and as such he adjusted machines about the plant, built a tool room, a die room, and a shop, which work lasted for about six weeks; thereafter, Weber did general repair work in the plant. If a machine was out of adjustment, he tried to adjust it; if there was a breakdown, the work would be sent out to be done. Weber did some brazing and welding work on small adjusting rods, but when any part of a machine broke, it would be sent out to an independent machine shop. Weber did this class of work up until the accident, which occurred while he was chipping silica glue from a cylinder. A piece of the dry glue became lodged in his left eye.

Plaintiff was under the care of Dr. J. Henry Larose, an eye specialist, for a period of approximately ten months. 'Dr. Larose and Dr. Kotz Allen, also an eye specialist, who made a subsequent examination of plaintiff, testified that Weber has completely lost the usefulness of his left eye, except for the preception of light. Both physicians agree that a person with only one eye does not 'possess normal depth perception, and would labor under a handicap in performing precision work. Dr. Allen stated he would not recommend that Weber assume the duties of a maintenance man, as that kind of work would entail danger to himself and those working with him.

The payroll record of Weber shows that on the date of the accident he was classified as “maintenance” at a rate of -pay of $1.05 per hour. After the accident, he continued to work for a period of three weeks. He did not again work until the week ending May 11, 1947, -during which week he put in forty hours at a rate of pay of $1.13 per hour. He was then off the job until September, 1947, when he returned to work and was classified, as “clerical” at 680 per hour during the first week, and at 780 per hour during, the three succeeding weeks. Weber was then given back his old job, and was classified as “maintenance” at a rate of, pay, for .the week ending October 19, 1947, of $1.06 per hour, and thereafter, through the week ending October 17, 1948, he received $1.23 per hour. Since then, and up to the date of the trial below, he was still classified as “maintenance” with a rate of pay of $1.30 per hour.

It is the plaintiffs contention that he is totally disabled to reasonably perform the duties he performed prior to the accident, but that if the court should find he is reasonably able to perform such duties, nevertheless, he is to be considered as permanently and totally disabled, because he cannot perform the duties of his' occupation without grave and serious danger to himself and his fellow employees.

The point whether Weber presently performs the same type of work he was 'engaged in prior to the accident is disputed. He maintains that he has done no mechanical maintenance work on the machinery since the injury, and that his services have been confined to performing “piddling odds and ends jobs like painting.” When asked on cross examination if he was doing the work satisfactorily, Weber answered: “Well, that would be up to the superintendent to answer for that.”

Robert F. Loving, day foreman of Kieck-hefer Container Company, testified that Weber worked under him; that-when he came back to work in September, 1947, the Kieckhefer Container Company plant had been moved from New Orleans to the Parish of Jefferson; that when Weber first came back, he was given clerical work, for about one month, and thereafter he was assigned to his old job at the maintenance pay rate, and ■ did the same kind of w-ork -that he performed prior to his injury, such as making adjustments and repairs on machines ; he repaired a Hooper Printer Slot-ter, made gear adjustments on the timing of the truck; built a house on the outside and a waiting room for the employees. He also made shelves for the storeroom, and did tow motor repair work. Loving further testified that after the plant had been moved to Jefferson Parish, Weber did no welding or brazing, but that he did the same character of work around the machines that he had done before; that the plant now maintains a full machine shop where mechanical breakdowns are repaired, and that any welding or brazing work which the machines may require is now done in the machine shop.

The office manager, Rene Labruyere, testified that he has seen Weber working around the machines in the plant every" day as often as necessary.

John Gilbert, the resident manager of Kieckhefer Container Company for about fifteen years, téstified that Weber was originally employed to do all of the small jobs that might be required in.the plant.

There is some testimony in the record by Thomas A. Russell, an affiliate of Weber’s labor union, to the effect that when Weber went back seeking his old job, a Mr. Johnson, who was superintendent of the plant at the time, refused to give it to him, stating as the reason that Weber, because of impaired vision, might further injure himself. When Johnson refused to rehire him, Weber promptly lodged a grievance report with .the union, which is filed in evidence. This report makes no mention that Johnson would not take Weber back because of any fear that he could not do the work, but the report is to the effect that when Weber reported for work he was told that there were too many mechanics, and, therefore, his services could not be used, in the plant.

Johnson, who .was working for another concern at the time, of .the trial, was not produced as a witness by defendants, and plaintiff’s counsel, argue that a'n inference unfavorable to defendants should .be drawn from this circumstance., We do not attach any importance to the failure to produce Johnson as a witness. Even if it be accepted as a fact that Johnson refused to employ Weber because he, felt that W.eber was incapable of holding down his jo'b, such, fact would be unimportant,, for other officials of the Kieckhefer Container Company, were also skeptical regarding Weber’s ability to do maintenance work.

Gilbert testified that when Weber made the complaint to the union, he, Gilbert, felt that Weber might not be able to work back into his original job. He was first given clerical work so that he could gradually "find himself” and prove to both himself arid to his employer that he would not injure himself or others, and that his superiors, after a time, were satisfied with his work, increased his pay, and in about two months felt that he was ■ entitled to be restored to his former rating, and that he was put back at the same work he did prior to the accident, with the same classification, “maintenance” mechanic. ;

The evidence of defendants’ three witnesses impressed the trial judge and prompted the conclusions reached .in the case, for we find that the judge, in his written reasons for judgment,, commented favorably upon their testimony. There is no doubt in our minds that plaintiff is- fully capable of performing, and is performing, substantially and efficiently, the duties of’a maintenance mechanic to the, full satisfaction of his employer. In the nineteen or twenty months since . Weber has -been back on his job, any fears that his superiors may have entertained that he could not do the work, or might injure himself or some other employee, have been entirely dissipated. The plant officials seem sincere in their statements that Weber is competent,, and that they believe he is doing as good, or better, a job than he did before, and. that they are entirely satisfied with him and expect him to continue to do his full line of duties.

We think, under the circumstances, that whatever claim Weber has arises under the specific loss clause of the act Section ';8, Subsection. 1, Paragraph (d), Subparagraph (9)..

It is well settled jurisprudence that where a workman loses 1 a: member of his body by amputation, and is thereby rendered incapable of doing work of any reasonable character, his compensation is ¡controlled by Section 8, Subsection 1, Paragraphs (a), (b), arid (c) of the act, and not by Paragraph (d) of that Section, which applies regardless of the workman’s capacity to perform work, and without reference to the duration of the’ disability. Custer v. New Orleans Paper Box Factory, La.App., 170 So. 388; Ingram v. Meridian Lumber Co., La.App., 178 So. 187; Jones v. International Paper Co., La.App., 11 So.2d 555; Pourciau v. Board of Commissioners of Port of New Orleans, La.App., 12 So.2d 36; Mitchell v. T. J. Moss Tie Co. et al., La.App., 27. So.2d 385; Washington v. Independent Ice & Cold Storage Co. et al., 211 La. 690, 30 So.2d 758.

In McCain v. Fohs Oil Co., La.App., 6 So.2d 197, 198, the Court'of Appeal, First •Circuit, said: “What the Court is concerned with principálly in a case of this kind is the type of work the injured erriployee was -performing at the time' of the accident causing his injury, and, is that the only kind of work which, by virtue of his education, his status in life, his training and experience, he is able to do. If the type or kind of work is such that because of the loss of one'eye he can no longer perform his du■’ties or can only perform them With danger to' himself, he is entitled to recover compensation for total, permanent disability under the general disability provision of the statute. Section 8, Subsection 1, Paragraph (b) of Act No. 20 of 1914, as amended by Act No. 242 of 1928. .If, on the other hand, .the work is of such character that it can be satisfactorily performed by him with the vision from the remaining eye, and without risk, he is entitled to recover compensation under the specific provisions of the act which limits the recovery, to 100 weeks for the loss of an eye. Section 8, Subsection 1, Paragraph (d), Subparagraph (9) of Act No. 242 of 1928. In other words, for the loss of an eye, even though there be no resulting disability, the injured employee is ipso facto entitled, under the specific provisions of the Act, to 100 weeks compensation, which, in effect, is a sort of offset for what he might have recovered in a tort action, the right to pursue which he has been deprived of by the statute. But if the loss of the eye produces disability, he can recover compensation under the general provisions of the statute, during such disability, depending of course upon its nature and duration. The distinction herein made applies not only to the loss of or injury to an eye but to any of the various members of the body enumerated under Paragraph (d), Subsection 1, Section 8 of Act 242 of 1928. See Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185.”

The courts have literally construed the words “work of a reasonable character,” as used in the disability provisions of the act, to mean that class of work for which the claimant is fitted by education, training, and status, and' such as he was performing or was accustomed to perform before the occurrence of his injury. McQueen v. Union Indemnity Co., 18 La.App. 612, 136 So. 761; Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9; Custer v. New Orleans Paper Box Factory, supra; Stieffel v. Valentine Sugars, Inc., et al., 188 La. 1091, 179 So. 6; Hibbard v. Blaine et al., La.App., 183 So. 39; Anderson v. May, La.App., 195 So. 783; Sumrall v. E. I. DuPont de Nemours & Co., La.App., 1 So.2d 430; McKenzie v. Standard Motor Car Co. et al., La.App., 15 So.2d 115; Henry v. Higgins Industries, Inc., La.App., 24 So.2d 402.

The instant case is analogous to Falgoust v. Maryland Casualty Co. et al., La.App., 22 So.2d 312, 315, decided by this court. There a carpenter suffered a permanent, partial loss of the use and function of his left arm to the extent of 37% but was successful in securing employment as a skilled carpenter with another employer. Claiming that he was totally and permanently disabled from doing work of any reasonable character, he instituted suit seeking the recovery of 'compensation for 400 weeks. The evidence showed-that while the plaintiff was a good carpenter and particularly useful in finishing work, he was unable to perform all of the duties required of a journeyman carpenter, such as climbing scaffolds, etc. In • holding that plaintiff’s claim was limited to the specific loss clause, we said: “ * * * Here, the evidence shows that plaintiff is employed as a carpenter and is earning the same wage which he received prior to the accident. Therefore, it cannot be said that his .injury has been such as to deprive him of engaging in his usual trade or occupation. The Employers’ Liability Act authorizes the courts to award compensation for permanent total disability only where the employee (by reason of his injury) is unable to do work of any reasonable character which means, according to liberal judicial interpretation, work of the same or similar nature for which the workman is fitted by education and previous experience. Can it be said that plaintiff is not doing work of the same or similar character merely because he and his foreman express doubt that he can perform all of the duties -required of a journeyman carpenter when he is actually doing the work required of him as a carpenter in his present employment to the satisfaction of his employer? We think not. '

In Boulanger v. Liberty Mutual Ins. Co., La.App., 31 So.2d 888, 889, (certiorari denied) a glass cutter, who had lost an arm, sued his employer’s insurer, claiming compensation for permanent, total disability, notwithstanding that he was still working for the same employer as a glass cutter. The record disclosed that while plaintiff could perform the work, it was necessary for him to have some assistance in his duties, and that without help he was unable to adjust his glass cutting tool. The court said: “In all of the cited cases wherein workmen with amputations were allowed permanent disability benefits, the evidence showed that the claimants were unable to return to duties similar to those that they performed when injured. But in the present case the record abundantly shows, beyond any doubt, that Boulanger is capable of carrying on substantially and efficiently the duties of a glass cutter, and is performing his work in a satisfactory manner. Since he has sustained the loss of a member of 'his body unaccompanied by inability to perform the duties of his employment, the claim against the defendant arises under the specific loss clause, which provides for payment of two hundred weeks compensation for loss of an arm. * * * ”

It is contended that Weber is at the mercy of his employer, and his counsel express the belief that Kieckhefer Container Company will dismiss Weber when this case is finally decided, and that in that event he will be unable to obtain other employment. Counsel state that the employer’s unwillingness to reemploy Weber after the accident fortifies that opinion. They maintain that had it not been for the coercion brought to bear upon the employer by the intervention and solicitation of the labor union’s grievance committee, Weber would not have been accepted for reemployment by the company.

It is self-evident that a man having only one eye cannot see as well as a person hav-> ing two normal eyes, and that if Weber’s services should be terminated by the Kieck-hefer Container Company for any reason, it may well be that he will encounter sturdy competition from able-bodied workmen when seeking other employment. But, in a case of this kind, that is not the test. Our only concern is whether Weber can do the work of his particular calling. Moreover, ■counsel’s opinion is based upon pure speculation, as there is nothing whatever in the record tending to show, or even remotely indicating, that Weber’s employer has any ■intention of discharging him because of his physical condition. On the contrary, the plant officials were unanimous in saying that they are fully satisfied with his work.

But, at any rate, the evidence in the case overwhelmingly demonstrates that Weber, with his one eye, can now do his work substantially and as efficiently as before the injury, and, after a careful study of the •matter, by no stretch of reasoning can we be led to the conclusion that he should be characterized as being a totally and permanently disabled workman.

The judgment appealed from is affirmed.

.Affirmed.