author: McGREGOR, J.

text:
    No. 4121
    Second Circuit
    HICKS v. GULF REFINING CO. OF LA.
    (November 18, 1931. Opinion and Decree.)
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, attorneys for plaintiff, appellant.
    J. S. Atkinson and F. E. Greer, of Shreveport, attorneys for defendant, appellee.
   McGREGOR, J.

This is a 'suit brought by the plaintiff under the Employers’ Liability Act (Act No. 20 of 1914, as amended) to recover compensation for total permanent disability. The plaintiff alleges that prior to September 14, 1929, he had been continuously employed as a pumper in the operation of a certain oil lease by the defendant in Red River parish; that during this time he developed varicose veins in both legs; that in the discharge of his' duties as pumper it was necessary for him to “kick off” the engine by the use of his hands and feet; that ordinarily this is done with the left foot, and that through this constant use of his left foot varicose veins were developed upon his left leg, which resulted in the permanent total loss of the use of that member; that upon the loss of the use of his left leg he continued in the same employment by using his hands and right foot; that this use of his right foot then resulted in varicose veins developing to the extent of the full length of his right leg; that, while he was “kicking off’’ an engine upon the defendant’s lease after midnight of September 14, 1929, the varicose veins inside the right knee were ruptured from the shock and strain caused by the impact and force applied with his right foot upon the starting device of the engine. He then alleges that this rupturing of the varicose veins of his right leg constituted an accidental injury, which instantly caused the total permanent loss of the use of that member.

Plaintiff says that he worked the rest of that night, not knowing how serious his injury was. He is positive that he did not work the next night, and, in fact, that he never returned to work until October 22, 1929. The defendant’s records, however, show that he was. on duty and réceived full pay for the 15th, 16th, and 17th of September, and that he was out on account of the injury thirty-four days, during which period he received compensation at the usual rate allowed by law. It is admitted that he returned to work on October 22, 1929, and worked on the same job that he had always held and remained there until May 3, 1930, when he was discharged for having permitted a bearing on his engine to be burned.

On July 9, 1930, this suit was filed. The trial resulted in a judgment for the defendant, and plaintiff has appealed.

OPINION

On account of whatever happened to plaintiff some time after midnight on September 14, 1929, he went to Dr. L. S. Huckaby at Harmon in Red River parish. Dr. Huckaby found that a blood vessel had been ruptured on the inner side of his right leg, back of his knee. He found an inflamed place about the size of an egg, and made an incision to drain the blood, and applied the necessary bandages to prevent any further hemorrhage. A day or two thereafter, on September 20, 1929, the plaintiff was conveyed to the Highland Sanitarium in Shreveport, where he received treatment at the hands of Dr. J. A. Hendricks. He remained in the sanitarium nine days, and was discharged .on September 29th. The place of the incision was completely healed, and it was necessary that plaintiff have complete rest for a few days. After a sufficient period of rest as prescribed, the plaintiff reported back for duty on his same job on October 22, 1929, and continued to work as usual until May 3, 1930, as stated above. All expenses incurred on account of the alleged accident were paid by the defendant, and in addition thereto the usual workmen’s compensation was paid for a period of thirty-four days, the time lost by the plaintiff.

The first disputed question is as to whether the plaintiff suffered an accidental injury within the meaning of the law. It is evident that’ something happened to him at about the time he states. He is the only witness on this point, and says, it happened while he was pushing on the flywheel on his engine with his right foot in an effort to start it. Instead of happening this way, it could easily have happened in due course as he was walking or using his leg in a natural way. He says it occurred about 4 o’clock a. m., but in this he must be in error, for R. L. Bell, a fellow worker, says he found him in a disabled condition at about 1:30 a. m., and assisted him in the starting of the engine at that hour.

In plaintiff’s petition it is alleged that he was suffering from varicose veins in both legs, and in counsel’s, brief it is admitted that at the time of, and for some considerable time prior to, the alleged accident, the plaintiff had varicose veins in his right leg, as well as in his left, but in his own testimony throughout the case, in order to try to convince the court that the alleged injury was received while he was in the act of using his right leg and foot in an effort to start his engine, he vigorously asserts over and over again that his right leg was perfectly sound and fit for the use to which he says he was putting it. As a matter of fact, his allegation on that point in his petition is correct, for it is conclusively proved by impartial testimony that his right leg was seriously affected with varicose veins long prior to September 14, 1929. His eagerness to create a different impression on the court seriously impairs his credibility as a witness when he testifies that the ruptured blood vessel was the result of an accident while he was trying to start the engine. Where one has varicose veins as bad as plaintiff is shown to have had in both legs, a rupture of this kind' may be expected at any time( without any accident or outside force. There is abundant testimony to the effect that for some time prior to September 14, 1929, the plaintiff never used his right leg in. starting his engine; that whenever his engine stopped, which was not often, he always called in help to start it, and that he never used either of his feet, but that he invariably did his part by pulling up on the wheel with his hands. So it is extremely doubtful as to whether plaintiff’s blood vessel was ruptured by his effort to start his engine with his foot, as he claims hé did.

But, be that as it may, it is an admitted fact that the wound caused by the incision was completely healed by October 22, 1929, and that plaintiff went back on the same job and held it until May 3, 1930, when he was discharged. There is no evidence going to show that- plaintiff’s varicose veins were made worse by the rupture or by the incision. There was no complaint as to the manner in which he did his work, but the cause of the discharge was his alleged carelessness in letting a bearing burn in his engine. Whether the discharge was unjust or not, it had no connection whatever with his physical condition. If he had not been found to be careless in the care of his engine, he would have been kept on the job indefinitely. So that it cannot be said that on May 3, 1930, nearly eight months after the alleged accident, he was suffering any disability whatever which prevented him from earning the •same amount that he had earned before.

■ But plaintiff claims- that after he went back to work he . always had to have help tp start his engine, whereas before the alleged accident he was able to do this alone and without assistance. The preponderance of testimony is against him on this proposition. Outside of his own testimony, there is not a single witness that swears that he ever saw him actually start his engine with his foot alone. R. L. Bell, one of his witnesses, says he could do it, but he never says that he ever saw him do it. Hugh Jones, the only other witness produced by plaintiff on this point, says that he never did see him start his engine with his foot. He states that he worked for eight or nine months on this job with plaintiff, and often helped him start the engine,' that he himself always used his left foot, and that plaintiff pulled up with his hands. Jones’ employment by the defendant was ended in June, 1929. So, for at least a year prior to the accident and for eight or nine months Jones helped plaintiff, and never saw him use his foot on this job. Now, if plaintiff was using his right foot or leg in, this kind of work on the night. of September 14, 1929, it seems reasonable that some time during a period of eight or nine months prior to June, 1929, when Jones was helping him start his engine, he would have used his foot instead of-uniformly using his hands. This testimony is rather convincing that he did not use his foot or leg on the night of September 14, 1929, and that whatever happened to him in his right leg occurred in the course of his walking, as an expected result and natural consequence as often happens in varicose veins.

It may well be that at the time of the trial of this case, January 22, 1931, plaintiff’s. condition was such that it would have been painful for him to undertake to do any kind of manual labor, but it has not been proved that that condition was brought on or hastened or aggravated by anything that happened on September 14, 1929, either accidentally or otherwise. One suffering from varicose veins grows worse continually from, the nature of the disease itself. Plaintiff has been suffering from varicose veins in both leg's for several years, and his condition has been getting worse all the time. At various times in the past different witnesses had occasion to see the condition of both legs. On April 15, 1927, Dr. W. W. Agnew examined him and found varicose veins in both legs. On May 29, 1928, Dr. R. L. Cherry examined him and found large varicose veins in both legs, especially the inner side of each knee. This latter report would indicate a much worse condition than was found in the first report. Therefore, it is not surprising that, with this serious condition in May, 1928, or a year prior to the alleged accident, three years thereafter the plaintiff’s condition was such that he could not work without pain. From the evidence in the case we find that this condition is the expected result and natural consequence of the ordinary course of the disease from which he is suffering; that it was not caused, aggravated, or hastened by an accidental injury received in the course of his employment. Whatever happened to him, either accidentally or otherwise, on September 14, 1929, was cured, and he worked on the same job for the same money, performing the same duties in the same manner as before.

For the reasons, assigned, the judgment appealed from is, affirmed; the plaintiff to pay the costs of both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 4120
    8econd Circuit
    BANFIELD v. LOUISIANA RY. & NAV. CO. ET AL.
    (November 18, 1931. Opinion and Decree.)

      Harry V. Booth and John G. Gibbs, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendants, appellants.
   McGREGOR, J.

On July 6, 1927, the plaintiff, James A. Banfield, was traveling from a few miles south of Lutcher, Louisiana, in a northerly direction to the city of Baton Rouge in an automobile owned and operated by one E. B. Bennett. He was employed by Ford, Bacon & Davis as a line foreman in the construction of a telephone line between Monroe and New Orleans, and Bennett was working under him as a lineman. The plaintiff’s immediate superior was A. J. Harrison, superintendent of construction, whose office or headquarters was at that time in the city of Baton Rouge. There were two trucks in the plaintiff’s charge at all times which were used for the transportation of men and materials from place to place as the occasion demanded. There was also a general understanding between Superintendent Harrison, Banfield and Bennett that whenever it was necessary for the plaintiff tq go anywhere on business for the company, Bennett would take him in his car at the expense of the company. Several trips of this kind were made and in each case Bennett was subject to the orders and directions of the plaintiff. On this particular day it became necessary for the plaintiff to go tQ Baton Rouge, a distance of between fifty and sixty miles, to see Superintendent Harrison in regard to matters concerning the work under construction. They quit work and left on the trip at about 5 o’clock p. m., and on the way stopped several minutes at Lutcher for gas and oil and proceeded at a rather rapid rate of speed on their way to Baton Rouge. They were in somewhat of a hurry as it was their plan to return the same night. When they had reached a point about three miles from Baton Rouge, the highway crossed the defendant’s railroad at a point known and referred to throughout the testimony as the 68 crossing. As they were in the act of crossing the railroad at this point, going in- a westerly direction, there was a collision < between the automobile in which they were riding and the defendant’s southbound passenger train at exactly fifty minutes after 6 o’clock p. m. The result was that the automobile was hurled several feet down the track on the west side. Plaintiff was knocked out of the car and fell some distance from it, while Bennett stayed in it and was extricated therefrom by members of the train crew, who came to the assistance of the men. The two men were put on the train and carried back to Baton Rouge to be placed in the sanitarium for medical atten-' tion. Bennett’s injuries proved to be rather slight, while plaintiff’s were more serious, and this suit has been brought by him against Bennett and the Louisiana Railway & Navigation Company, in solido, for $32,-877 damages.

In his petition the plaintiff alleges that his injuries and the resultant damages were caused by the combined fault, negligence, wantonness, lack of care, and gross carelessness of the two defendants. The injuries are described as a fracture of tbe left femur bone and bruises about the body, cuts, scars and lacerations all oyer bis body. It is specially alleged that tbe fracture of tbe femur has caused a permanent shortening of his left leg to tbe extent of approximately one inch. Tbe damages claimed are itemized as follows: .

(a) Loss of earnings from date of accident at $7.50 per day, being tbe wages plaintiff was earning____________$10,000

(b)' Medical expenses • expended and to be expended-.*_______________________________ 250

(c) Sanitarium expense_____________________ 127

(d) Fracture of femur, causing shortening of left leg, resulting in permanent disability -----------------------------: 10,000

(e) Pain and suffering,- distress and shock ....................................................... . 7,500

(f) Injury to bis back caused by bruises in tbe region of tbe kidneys and by being thrown a distance of eighty feet when struck by tbe train___________________________________ 5,000

$32,377

Tbe negligence charged to tbe defendant, Louisiana Railway & Navigation Company, is:

(1) That its train approached tbe crossing at an excessive and high rate of speed.

(2) That no signal indicating its approach to tbe crossing was given.

(3) That tbe approach to the crossing was too steep and constructed in an improper manner, so that it was conducive to such accidents as occurred to him.

(4) That weeds and brush bad grown on both sides of tbe right-of-way to such an extent as to obscure its trains and render this crossing extremely perilous.

No particular act of negligence on tbe part of Bennett is alleged in tbe petition, but in bis testimony the plaintiff says, that Bennett’s negligence, consisted of driving on tbe railroad in front -of tbe train and getting bit.

Service of tbe suit was not made' on Bennett in time for tbe trial.

In its answer the defendant, Louisiana Railway & Navigation Company, admitted tbe fact of tbe collision and injuries, but denied that they w.ere caused by any negligence on -the part of its employees. It is alleged that tbe proximate cause qf tbe accident was tbe negligence of tbe plaintiff and Bennett, tbe driver of tbe automobile, as follows:

(1) That they were both under tbe influence of whiskey, which prevented .them from having control of tbe car in a proper and prudent manner.

(2) That they failed to take necessary precautions, to ascertain tbe approach of the train before attempting to go upon tbe crossing.

(3) That they failed to heed warnings and alarms signaling tbe approach of the train.

(4) That they went upon tbe crossing when tbe train was in such close proximity thereto as to make it impossible for tbe engineer in charge thereof to - avoid the accident.

In tbe alternative the defendant pleaded that tbe intoxicated condition of tbe driver and bis lack of proper control of tbe car should have been known to tbe plaintiff, if they were not, but met with no protest from him; that tbe plaintiff himself failed to take any precaution’ to observe tbe approach of tbe train, notwithstanding that be bad ample opportunity to do so, and that all this constituted contributory negligence which bars the plaintiff from recovery of any damages for bis injuries.

The case was tried by a jury and by a vote of nine to three the plaintiff was awarded judgment in the sum of $12,377. The defendant, Louisiana Railway & Navigation Company, has appealed.

OPINION

In their brief counsel for plaintiff have confined their charge of negligence against the defendant to the following specifications :

(1) That the railroad crew failed to give the required signal or warning of its approach.

(2) That grass and weeds along the railroad right-of-way obstructed the view of the approaching train.

(3) That the condition of the approach to the crossing was hazardous and perilous.

In addition to these three counts of negligence, counsel urge that under the doctrine of the last clear chance plaintiff should recover for the reason that defendant’s engineer did not apply the air brakes as soon as he should have done. The charge that defendant’s train was being. operated at an excessive rate of speed is abandoned.

With reference to plaintiff’s contention that the train crew failed to give the required signals and warnings we find as follows: In his testimony as a witness in his own behalf the plaintiff stated that Bennett, the owner and operator of the automobile in which he was riding, stopped a few feet from the railroad track and listened to see if a train was approaching; that they neither heard nor saw the train and that they heard no whistle blow or bell ring; that they then proceeded to cross the railroad in low gear, traveling at a slow rate of speed. On this same point Bennett, the other defendant, but whose case was not tried, testified that no stop was made; that they did not slow down on account of .the crossing. He states that he was driving at the rate of 45 miles as he approached the crossing and gave no thought to the possible approach of a train; that when he was within 12 feet of the track he suddenly saw the train coming from the right. It was then too late to -try to stop so. he says: “I seen I couldn’t stop at that time and I just shot the juice to her and tried to make it.” In answer to a question as to whether he looked to see whether a train was coming, he said: “No, sir, I wasn’t looking nor listening.” He states that he heard no whistle or bell. The plaintiff and Bennett are the only witnesses who testified in the case for the plaintiff on the subject of the signals the train creasy gave for the crossing, and they both said that they heard no bell or whistle. The plaintiff says he listened and Bennett says he did not. On the other hand the defendant produced a number of witnesses who testified that the engineer blew the whistle and the fireman rang the bell. Mr. Dalton Reymond lived at the time of the accident near the railroad, about one and one-fourth miles north of the crossing where the accident occurred. He testified that he heard such an unusual amount of whistling at the scene of the accident that he got in his car and drove down there to see what had happene'd. A. M. Hickman, a resident of Baton Rouge, stated that at the time of the accident he was traveling in his automobile with his family on the paved highway parallel with the defendant’s railroad in the same direction as defendant’s train was traveling; that he heard the train whistle blow behind him; that when the train passed him at a distance of about 1,000 feet from the crossing it was still blowing and continued to blow as it approached the crossing. Mrs. J. L. Francies lives on the highway about one-fourth mile north of the crossing where the accident occurred. She heard the whistle blow as it passed her house and paid particular attention to it and was distressed because of the fact that she knew her little boy was in close proximity of the track. She ran out to see if he was in danger and as he got out _ in front of her house she saw that an accident had occurred at the crossing. J. L. Stephens, his wife and son were on this same highway traveling in an automobile just a short distance ahead of Mr. Hickman.' They all testified that they heard the train whistle before it passed them at a point about one hundred yards or less from the crossing and that it continued to blow until it reached the crossing and hit the automobile in which plaintiff was riding. Anthony Davis, a negro living in a house that was on the west side of the railroad, facing it and a short distance below the crossing, was an eye-witness to the accident and testified that the train whistle blew at the usual “whistling place” and “continued a good while. Most up until she got to the crossing.” His stepson, Leon Burris, had gone across the railroad for his cows and his fear that the boy might be in danger caused him to be more alert and to pay closer attention to the whistling and to remember the incident more distinctly. Leon Burris, the stepson of Anthony Davis, just referred to, testified that he was on the same side of the railroad that the plaintiff was just before the accident, about two hundred feet from the railroad; that he heard the train whistle, beginning near the house of Mr. Baylis, who lived several hundred feet from the crossing, and that it “blowed until it hit the car.” Ed Black, a white porter or flagman on the train, testified that the engineer blew the regulation crossing whistle, that the bell was ringing and that suddenly the air brakes were applied tq the train. Alex Patterson, the fireman, testified that he commenced ringing the bell at the regular whistling post and continued to ring it until the crossing was reached; that the engineer blew the whistle at the usual place, that he suddenly discovered the automobile and warned the engineer to apply the air brakes at once. He testified that the whistle was blowing just before and at the crossing and that the air brakes were applied before the crossing was reached. C. B. Brandon, the engineer, testified that he blew the whistle at the usual place and then again at about the distance of two telephone poles he blew another crossing signal and held the last signal until the engine was on the crossing; that that method of whistling is used at all crossings. He testified further that just before reaching the crossing the fireman warned him that an automobile was approaching from the east as though it were going to cross ahead of him and that he instantly applied his air brakes, stopping the train in two train lengths, which carried him beyond the crossing a distance of one train length.

In their brief counsel for plaintiff say:

“Without discussing the testimony of each of these witnesses in detail, it will be particularly observed that not a single witness, either the train crew or supposed bystanders, testified that the train either blew its whistle or rang its gong for a distance of three hundred yards from the crossing continuously. In fact, it is quite apparent that the crew did neither ring its bell nor blow its whistle continuously during this distance.”

We read the testimony differently. Every witness that testified on this point for the defendant except the co-defendant, Bennett, testified that the whistling began at the usual whistling place, a distance of 1,000 feet or more from the crossing, and continued practically continuously until the crossing was reached. In another place in their brief counsel for plaintiff say:

“Not a single witness testified that the warning given by the train was such as complied with Act 12 of 1924.”

The provision referred to reads as follows:

“That every railroad company shall cause each locomotive engine run by It to be provided with a bell of at least thirty pounds weight and a steam whistle which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or municipal street, and the bell shall be kept ringing or the whistle shall be kept blowing continuously until said crossing is passed.” Section 1.

It will be noted that the requirement of the law is fully met if either the bell- is kept ringing or the whistle is kept blowing. There is overwhelming testimony that this provision of the law was fully complied with in that the bell rang continuously over three hundred yards. In addition to that the whistle blew over 1,000 feet from the crossing and then again from a distance of two telephone poles continuously until the crossing was reached and the accident had occurred. According to the great preponderance of the testimony the defendant was guilty of no negligence whatever in the manner of giving signals by whistle and bell in accordance with the provision of Act No. 12 of 1924.

The second and third charges of negligence urged by plaintiff may be considered together as plaintiff’s counsel have done in their brief. Honorable Howell Morgan, former state treasurer and state banking commissioner, testified ’ that he was familiar with this 68 crossing at about the time of the accident involved herein. He is very positive that it was in a bad condition. The gist of his testimony is covered by the following quotation from it:

“A. In going to Baton Rouge you went down an incline into a cup-like hollow that the water rushed into from the railroad tracks from the lefthand side and didn’t always get out. It was quite a mud hole there at times, so much so that in driving through it you had to put your gear in second and go up rather fast. You went up a steep bank on to the railroad tracks and did not see those tracks until you got practically on them, until you got up that incline. Then the railroad itself to the right which was towards Baton Rouge, was hidden from view not only by grass and shrubbery but by some little trees that were there.
“Q. All right, as to weeds and brush, Mr. Morgan?
“A. All right. Now when it comes to the right-of-way itself I don’t know just exactly the distance from the road that it extends but I know that as you went down into this ditch or hollow that upon the right-hand side there was grass. Sometimes the grass was old and brown, other times it was growing. There was considerable brush all along there and I know, that before you got into that ditch that you could not see a train coming from Baton Rouge. Now whether that brush was on the right-of-way itself, I do not know.”
“A. I would say it is between ten feet and fifteen feet high from the bottom of that ditch to the railroad track.”
# $ * # $ * *
“A. Why the grass itself was very high. It looked like Johnson grass. I do not know whether it was but it was very high. I do not know just how high. I know that the grass and weeds and the brush obscured the view to the right of the railroad altogether and you could not have seen a train any distance at all down that track.”

Mr. Morgan, appears to be very positive in Ms opinion of the condition of the crossing both as to its steepness and the height of the weeds and brush on the right side of highway that he says obscured the view of a motorist traveling toward the city of Baton Rouge. In this opinion he is corroborated to a certain extent in some particulars by S. R. Barman, B. B. Riley, and G. P. Van Dussen. It will be noted that Mr. Morgan states that between the end of the graveled highway on the east side of the railroad and the railroad tracks there was at the time of the accident a “cup-like hollow,” into which water rushed when it rained and did not always get out, thus causing a mud hole. He states further that it was necessary to go into low gear in order to go upon the crossing and that the crossing was between ten and fifteen feet above the bottom of this so-called mud hole. He states further that if one proceeds to cross the railroad at this place one could not see the tracks until practically upon them and that the view up the railroad on the right side toward Baton Rouge was obscured by grass and weeds and shrubbery. S. R. Barman took a kodak picture of the crossing a few days before the trial, which he says differs from the appearance of the crossing at the time of the accident on’ July 6, 1927, in only two particulars, namely: (1) The level of the approach to the crossing is just a few inches higher in the picture than it was at the time of the accident, and (2) that the weeds and grass at the time were not as high as they would be on July 6, the date of the accident. The kodak was 370 feet from the crossing on the east side. His testimony is that at the time the picture was made one could see a train 150 to 200 feet from a position 70 to 100 feet from the crossing on the east side. The picture itself shows an unobscured view of the track for some distance toward Baton Rouge, and it was taken from a point 370 feet from the crossing, which would place it beyond the curve where the road straightens toward New Orleans. Barman states that the incline from the so-called mud hole has been raised a few inches. There is no semblance of a bad place in the road shown in the picture, as is described by Mr. Morgan. Mr. B. B. Riley of Baton Rouge was called to the scene of the wreck to remove plaintiff’s car. It is his testimony that the elevation of the railroad above the highway at its lowest point on the east side is about eight feet and that the weeds and high grass grow six feet tall within fifteen feet of the railroad tracks. He states that one could stop one’s car thirty or forty feet east of the track and see a train fifty or seventy-five feet up the track toward Baton Rouge at the time of the accident. Mr. Van Dussen, another witness for the plaintiff, testified that the approach to the crossing on the east side was about eight feet high, but he testified practically nothing about the alleged weeds and grass. The plaintiff himself testified that the automobile in which he was riding came to a complete stop twenty-five or thirty feet from the track and that from that point he could see thirty or forty feet up the track toward Baton Rouge. Certainly as he proceeded toward the track from that point the distance he could see up the track increased rapidly.

Opposed to this testimony of the plaintiff there was an overwhelming preponderance of testimony introduced by the defendant to the effect that there was ample opportunity to see a train coming- from Baton Rouge as plaintiff approached the crossing from the east side. So that we hold that no negligence on the part of the defendant with reference to the approach to the crossing or with reference to the weeds and grass which are alleged to have obscured the view up the track has been shown.

Since we find that the defendant was free of negligence in the case; that it complied strictly with the law in the matter of giving the required signals, and that neither the steepness of the crossing nor the weeds and grass on the right-of-way contributed to the accident, it is not necessary to go further in the case to discuss in detail the question of plaintiff’s and Bennett’s negligence. We have made a very thorough study of the entire record and have devoted unusual amount of time to it. It is established by a clear preponderance of evidence that Bennett did not pretend to decrease the speed of his car as he approached the railroad crossing; he was traveling at the rate of forty-five miles an hour as he approached and reached the crossing, and gave no thought whatever to the possible approach of a railroad train at that point. Furthermore, plaintiff never uttered a word of protest of any kind at any time. He not only was a passenger in the automobile, sitting on the right side of Bennett on the side next to the approaching train with every opportunity to see it, but Bennett was under his control at the time, subject to his every order. At different times during the trip he had urged Bennett to hurry and to step on the gas. The accident was clearly and undoubtedly the result of the gross carelessness and negligence of Bennett, the owner and driver of the automobile. The plaintiff had every opportunity to see and avoid the danger from the approaching train, but did nothing and said nothing. Under the circumstances he was guilty of negligence whether considered in the light of a simple passenger or as being in charge and control of the movements of Bennett.

If the version of Bennett is accepted there can be no doubt of his negligence, as well as that of the plaintiff, for he says he rushed toward and over the crossing at the rate of forty-five miles an hour without giving it any attention whatever. If plaintiff’s version is correct — that the car came to a complete stop several feet from the crossing and .went into low gear in order to climb the steep approach — there was ample opportunity both to see and hear the approaching train in time to stop before going upon the track. The failure to see or hear the train under these circumstances would indicate an extreme lack of attention on the part both of Bennett and the plaintiff. According to either version, the car was driven upon the track in front of the train in a heedless and reckless manner. It was a danger that plaintiff was well aware of and he uttered not one word of protest and did nothing to try to avoid the accident. The fact of the presence of the railroad crossing was a warning to Bennett and plaintiff to beware of danger. It spoke to them in thundering tones. If the view was obscured as plaintiff claims it was, his duty to approach this crossing with care and caution was all the greater. In addition to their personal knowledge that they were approaching a crossing that plaintiff seeks to establish was perilous and hazardous, there was a railroad sign warning them to stop, look and listen, one hundred feet or more from the crossing. Then as they approached still nearer, there was the Louisiana law stop sign. All these warnings were unheeded by both. In the case of Baltimore & Ohio Railway Company v. Dora Goodman, Administratrix, 275 U. S. 66-70, 48 S. Ct. 24, 25, 72 L. Ed. 168, 56 A.L.R. 645, Mr. Justice Holmes said:

“When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop, and get out of his vehicle, although obviously he will not often be’required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk.”

The doctrine of the last clear chance can have no part in the decision of this case. The fireman did see the plaintiff in time for the train to have slowed down and to have avoided the collision, but he had a right to think that since he could see the car, the driver of the car could and would see the train and would stop before reaching the crossing. It is a matter of common knowledge that many motorists drive just as rapidly and as close as possible before stopping both at railroads and highway crossings. The fireman knew that he was ringing the bell and that the engineer was blowing the whistle at that very moment and that the driver of. the car should hear them. For these reasons he did not warn the engineer of the approaching automobile as soon as he saw it. But as soon as it appeared that the driver of the automobile was trying to cross ahead of the train, he did give the necessary signals to the engineer and every effort was made instantly to avert the disaster. The judgment in favor of the plaintiff is clearly erroneous and should be reversed.

For the reasons assigned the judgment appealed from is hereby annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the defendant, the Louisiana Railway & Navigation Company, dismissing plaintiff’s suit against it, at his cost.


author: WESTERFIELD, J.

text:
    No. 11,489
    Orleans
    BAGERT v. MAESTRI ET AL.
    (November 13, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)

      Daly & Hamlin, of New Orleans, attorneys for plaintiff, appellee.
    Solomon S. Goldman, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This suit results, from a collision of automobiles at the intersection of DeSoto and Dupre Streets. Plaintiff claims $217.20 as' damages to his automobile, occasioned by the collision, and was awarded a judgment for that amount below. Defendant has appealed.

Plaintiff’s car, a Dodge, at the time of the accident, was being driven by his nephew, Milton Bagert. He testifies that, at about 20 minutes to 9, in the morning, he was driving out DeSoto street toward the river, and that, as he neared Dupre street, proceeding at a speed of about eighteen or twenty miles an nour, and when almost across the intersection, his car was struck near the left rear fender by the Peerless car driven by defendant; that, as he approached Dupre street, and when within fifteen feet of the intersection, he looked in the- direction from which the defendant’s autumobile was approaching and saw defendant’s car when about half a.block away. If plaintiff’s car was within fifteen feet of the intersection when defendant’s car was a half block away, there would have been no collision. Consequently, the statement is incorrect, particularly in view of the speed at which the defendant’s car was approaching.

Mrs. Francis Maestri, defendant herein, who was driving the Peerless car, testified that she was in second speed and approaching DeSoto street very slowly, and, just as the hood of her car entered the intersection, she was struck by plaintiff’s Dodge car.

Plaintiff, in his petition, alleged that the accident was caused by the excessive speed of defendant’s car. This contention, however, seems to have been abandoned, for there is no proof to that effect in the record, and the point was not made in this court. Plaintiff’s legal position, as presented to us, is a reliance upon his right of way under the circumstances prevailing. This right of way is claimed as two-fold;

First, under section 7(c) of the Traffic Ordinance, which reads as follows:

“On all other streets and at intersections of right-of-way streets with one another, all vehicles approaching intersecting streets from the left shall give right-cf-way to vehicles approaching from the right.”

Second, the Dodge, having first entered the intersection, was entitled to proceed.

The record is not very clear as to which automobile entered the intersection first, but, under the section of the ordinance referred to, it must be conceded that plaintiff’s car had the right of way, from which it follows that defendant was negligent in entering the- intersection under the circumstances. But a right of way is not a right of pre-emption. All automobiles driven upon city streets, whether given the right of way, or otherwise, should be operated with due regard of the rights of other automobiles to use the public streets. The city streets are not speedways or race courses.

The record before us conclusively establishes the fact that plaintiff’s car, at the time of the accident, was being driven wi-th dangerous and reckless rapidity, as shown by the action of the car after the impact. The driver himself admits that his car “made a couple of turn-overs, it first hit the curbing and bounced around and over.” Other witnesses say that the car made a “somersault.” Mrs. Maestri, the defendant, said:

“Before you know it I saw an automobile like a flash o'f lightning before me turning over about twenty feet from me, and went back on its wheels and stopped.”

It is difficult to understand, in view • of the conceded action of the Dodge car, after the impact, in turning completely over— whether once as testified by some witnesses, or twice, as the driver of plaintiff’s car claims — how the driver escaped serious injury or death. Whatever ma'- r,- -''planation of his fortunate escape from physical disaster, it is quite evident that he was guilty of gross negligence, which contributed to the accident and must prevent his recovery.

In the case of Giardina v. Massaro et al., 3 La. App. 221, we said:

“Where a Ford automobile collides with another Ford automobile at a street crossing and after the impact jumps the curbing, proceeds along the sidewalk, knocking the door of a grocery store off the hinges, injuring a pedestrian, and is finally brought to rest by steps on the sidewalk, the circumstances are so persuasive of excessive speed as to require strong proof to establish the contrary.”

In the case before us, the action of plaintiff’s car after the impact is, similar to that of the Ford in the cited case, with the distinction, perhaps, that the evidence in the case at bar indicates a greater speed, because the Dodge car in this case executed at least one complete somersault.

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


author: HIGGINS, J. JANVIER, J. PER CURIAM.

text:
    No. 13,724
    Orleans
    BACON v. N. O. PUBLIC SERVICE, INC., ET AL.
    (October 19, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)

      Milling, Godchaux, Saal & Milling, M. Truman Woodward, Jr., and Lawrence K. Benson, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff brings this suit in his own behalf and on behalf of his minor son against the New Orleans Public Service, Inc., and Archie J. Lejeune In solido for damages alleged to have resulted from a collision between a Ford truck belonging to Lejeune and a street car operated by the New Orleans Public Service, Inc. The accident occurred at the corner of Dumaine street and Carrollton avenue, on Mardi Gras Day, February 16, 1926, at 3:30 p. m.

The plaintiff claims that the accident was, caused through the joint and concurrent negligence of the defendants, and that they are liable on the following grounds: First, because the street car did not come to a full stop upon reaching the intersection of Carrollton avenue, and that it did not accord tne truck the right of way as required' by the traffic ordinance of the city; second, because the motorman was guilty of negligence in running the car at an excessive rate of speed and in not keeping a proper lookout; third, because the motorman permitted the - right front door of the vestibule of the street car to remain open in violation of Act 16 of 1914; fourth, because the driver of the truck was at fault in operating his truck at an excessive rate of -speed, without efficient brakes, and in failing to keep a proper lookout.

The street car company admitted the accident and injury to plaintiff’s son, who was a passenger, but denied that the motorman was guilty of any negligence, averring that the collision was, caused entirely by the fault of the truck driver in operating the truck with defective brakes, and further that the plaintiff’s son was guilty of contributory negligence in riding on the step or platform of the car in violation of the motorman’s and the conductor’s orders to ride inside the car.

The driver and owner of the truck failed to answer, and judgment by default was rendered against him in the sum of $5,-091.50 by one of the judges. of the civil district court on, April 12, 1927. The ease-was then tried on its merits as against the railway company before a jury in another division of the same court, resulting on-November 25, 1930, in a verdict in favor of plaintiff for the sum of $10,000, three jurors dissenting. The railway company applied for a new trial, which was refused by the judge, who stated, in his written reasons, for doing so, that the refusal was not to be construed as expressing an opinion of approval of the verdict, but, as the record was fully made up, he preferred to let the appellate court review it. The railway company then obtained a suspensive appeal; none of the parties having appealed from the judgment rendered by default. 1

The undisputed facts of the case may be stated as follows:

The plaintiff’s, minor son, aged fourteen years nine months, together with four other young men, were passengers on one of the defendant’s street cars. The car was of the small type, having about eight or nine cross-seats and two side seats at each end. The brakes were operated by hand and also the doors of the vestibule. The doors on the left side of the car were closed, but the right front and the right rear door were open for the purpose of receiving and discharging passengers. The car was on Dumaine street, proceeding toward the lake, or City Park. Dumaine street is a paved thoroughfare 32 feet 5 inches in width, with double street car tracks, in its center, the downtown tracks being used by cars going in the direction of the lake and the uptown tracks by those going toward the river. This street crosses at right angles Carrollton avenue, which is a boulevard with a neutral ground in the center 61 feet 1 inch in width. On both sides thereof are paved roadways, each 24 feet 5 inches wide, vehicles moving downtown using the riverside thoroughfare and those going toward Canal street occupying the lakeside roadway. The street car had crossed the riverside thoroughfare and the neutral ground of Carrollton avenue, and was about in the center of the lakeside roadway of the avenue, when the Ford truck, proceeding toward Canal street, collided with it, the left front part of the truck striking the right front step of the car, demolishing the step. The impact derailed the street car, and its momentum caused it to • cross the uptown tracks on Dumaine street, traverse the street, surmount a 6y2-inch gutter curb, and finally come to rest 7% feet upon the uptown sidewalk of Dumaine street. The truck stopped on Dumaine street on the street car tracks. Plaintiff’s son, who was riding either on the right side of the front platform, or on the right, front step, sustained three fractures of the right leg, and was removed to the Charity Hospital at once for attention.

It is first argued on behalf of plaintiff that the motorman failed to observe paragraph (a), subsection 7, article X, section 1, of the traffic ordinance to the effect that Carrollton avenue is a right of way street, and that vehicles approaching Carrollton avenue from intersecting streets “shall, before crossing or turning into same, come to a full stop,’’ and paragraph (c) subsection 7, article X, section 1, of the traffic ordinance to the effect that at intersections of right of way streets with one another all vehicles approaching from the left shall give the right of way to vehicles approaching from the right. The street car was approaching from the left, and plaintiff contends that this, also gave the motortruck the right of way under the latter provision of the ordinance.

Counsel for defendant railway company argues that the provisions of the traffic ordinance referred to do not apply to street cars, because a street car cannot be said to be a vehicle within the meaning of the traffic ordinance, and that to so hold would be to seriously impede and hamper the movement of street cars and to inconvenience the public in the enjoyment of their use.

We do not believe it is necessary to consider whether or not the provisions of the ordinance apply to street ears, and therefore express no opinion on that point. It is sufficient to say that, if the ordinance is applicable, the truck had the right of way, and, if inapplicable, then the defendant has not offered in evidence any ordinance, franchise, or statute which gives it the right of way at the intersection, and therefore the case falls under the general law which grants to both motor vehicles and street cars equal rights at street crossings. The rule is stated in Huddy’s Cyc. of Automobile Law, vol. 7-8, p. 143, as follows:

“At intersecting streets, the general rule is that a street car crossing in one direction and an automobile approaching at right angles have equal right to the use of the crossing. Each must exercise reasonable care to avoid a collision, and neither can heedlessly continue his course on the assumption that the other will give way.”

Ruling Case Law, vol. 25, verbo “Street Railways,” sec. 98, states the law in the following language:

“The preferential right generally accorded to street cars over other vehicles between street crossings does not, by the great weight of authority, prevail at street crossings, and the courts are generally agreed that the drivers of vehicles, pedestrians and street cars have equal rights at those crossings, and that neither has a superior right to the other, but that each must exercise ordinary care in crossing, and each is bound to use equal diligence to avoid collision.”

See, also, Booth on “Street Railways” (2d Ed.) 490.

We next consider the question of the speed of the street car and the failure of the motorman to keep a proper lookout. In discussing this point, it must be borne in mind that the defendant company is a carrier for hire, and that the boy was injured while a passenger on its street car. Consequently, the company owed him the duty of using, net only ordinary care to avoid injuring him, but the highest degree of care commensurate with human foresight. Hopkins v. N. O. Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362; Shally v. N. O. Public Service, Inc., 1 La. App. 770; Id., 159 La. 519, 105 So. 606; Lancon v. M. L. & T. R. R. & S. S. Co., 127 La. 1, 53 So. 365; LeBlanc v. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Patton v. Pickles, 50 La. Ann. 857, 864, 24 So. 290; Brisolara v. Caddo Tr. & Warehouse Co., 13 La. App. 27, 127 So. 57.

Our courts have also held that, where a passenger brings suit against a carrier to recover damages for personal injuries, all he need prove is that'he was a passenger on the car and that he was injured. It is then incumbent oh the carrier, in order to relieve itself of liability, to prove either that it was not negligent, or that the passenger was contributorily negligent. Cusimano v. N. O. Public Service, Inc., 170 La. 95, 127 So. 376; Hopkins v. N. O. Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362; LeBlanc v. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Baptiste v. N. O. Public Service, Inc., 13 La. App. 625, 127 So. 655.

Plaintiff and his three companions, ranging in age from about 15 to 16 years, all testified that the street car did not stop at the intersection, but proceeded across at a rapid, rate of speed. Their testimony on this point is contradicted by the evidence of the motorman and the conductor, the driver of the truck, and a disinterested witness, Carriere, each of whom said that the street car did stop and that it then proceeded across the intersection at a speed of about 10 miles an hour. Lejeune, the driver of the truck, a witness for the railway company, stated that once the street car entered the intersection it never slowed down, but kept going at a speed which he estimated to be about 10 miles an hour. The motorman testified that he stopped at Carrollton avenue to permit passengers to alight; that, after they were discharged, the car started across the intersection (an unusually wide one), reaching a speed of about 10 miles an hour at the point of collision; that, when he started across the first roadway, he saw the truck coming down the street at a distance of about 300 feet from the intersection of Dumaine street; that, after seeing the' truck at this distance his attention was directed to an automobile which came around the street car on the left-hand side and went out Dumaine street in the same direction as. the street car; that he did not again see the truck until it was “right on me”; that he applied his brakes, but before they were effective the truck collided with his car; that he did not know how fast the truck was coming but says “It was coming fast, though— I judge — from the force that he hit the street car.”

Mr. Byrd, another witness for the company, stated that the crossing was. a dangerous one, and .that all motormen were ordered by the company to come to a full stop, that they were further directed to cross street intersections cautiously, and that, as it was Mardi Gras Day, with heavy traffic and large crowds on the streets, the motormen were particularly instructed . to be very careful on account of this enhanced danger.

The evidence shows that the collision took place about midway of the lake roadway of Carrollton avenue, and that the street car ran some 57 feet, with the front wheels of the car passing over a 6%-inch gutter curbing on the uptown lake corner of Dumaine street.

We do not believe it essential to a determination of the issues involved in the case to decide whether or not the street car stopped at Carrollton avenue. Even if the car did stop, there was sufficient opportunity for it to speed up before reaching the lake thoroughfare. The conflict in the testimony concerning the speed of the street car must be resolved in favor of plaintiff, for the action of the street car after the accident can be explained in no way consistent with moderate', much less cautious, crossing of the intersection.

Jackson, the motorman, admits that it was only after seeing the truck 15 or 20 feet away from him that he applied his brakes, and could not stop in timé to avoid •the collision. His failure to keep the truck under surveillance, knowing it must cross, his path, was negligence, and inconsistent with the high degree of care due a passenger by a carrier. If it was necessary for Jackson to watch the automobile that, passed to his left and impossible to keep both vehicles under observation at the same time, he should have either slowed down, or stopped. His statement that, when he saw -the truck 300 feet away, he believed he had sufficient time to cross' before it would reach the intersection, and therefore gave it no further consideration, convicts him of carelessness, for, at that .distance, he could not determine with any degree of accuracy whether his conclusion to beat the truck across was prudent or otherwise. He should' have kept a proper lookout. One look was not enough. Daull v. N. O. Ry. & Light Co., 147 La. 1012, 86 So. 477; Shields v. Fairchild, 130 La. 648, 58 So. 497; Marston et al. v. Shreveport Traction Co., 140 La. 18, 72 So. 794; Roder v. Legendre et al., 147 La. 295, 84 So. 787; Boylan v. N. O. Ry. & Light Co., 139 La. 185, 71 So. 360; Neville v. Postal Telegraph-Cable Co., 13 La. App. 76, 126 So. 720, 722; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194; LeBlanc v. Checker Cab Co., 8 La. App. 472; Gaspard v. Malochee et al., 16 La. App. 527, 133 So. 409.

Defendant’s counsel, conceding arguendo the negligence of the motorman, nevertheless contends" that his negligence in no wise contributed to the accident, the responsibility for which is imputed exclusively to Lejeune, the driver of the motor-truck, whose brakes, when applied, admittedly failed to function; in other words, the motorman had a right to assume that the truck was equipped with brakes which were in good order. We have no doubt that the failure of Lejeune to cheek the speed of the truck contributed to the accident, and the trial court has so found. Moreover, we are also of opinion that the truck was going faster than it should have been in approaching the intersection, a fact which would have been evident to Jackson, the motorman, if he had been keeping a proper lookout. But he paid no attention to the truck, which he knew was. approaching the intersection and was at no time in a position to avoid the danger of collision, which its negligent operation might threaten. He did not rely upon the brakes functioning properly, and, for all he knew, the truck might have been out of control for a considerable distance from the intersection.

We can find no distinction in principle between this case and that of Daull v. N. O. Railway & Light Co., 147 La. 1012, 86 So. 477, 478, where the facts are strikingly similar. In that case Daull was driving his automobile on Nashville avenue and approaching Coliseum street, on which a street car was being operated. He did not see the street car until within 8 or 10 feet of the intersection of Coliseum street and Nashville avenue, when it was too late to stop his car. In endeavoring to beat the street car across, he collided with it and injured a guest in his automobile. Daull and Miss. Cuneo, the guest, sued the street railway company, and the court at first held that neither plaintiff could recover on account of the negligence of Daull, the driver of the automobile, because, though tne motorman was guilty of negligence, Daull was also at fault, and his negligence contributed proximately to the result, in that he failed to keep a proper lookout for the street car, not having again looked in its direction— after failing to see it 150 feet away — until within 8 ,or 10 feet of the crossing. The court held that the accident could have been avoided if either the driver of the automobile or the motorman had exercised reasonable care. On rehearing Miss Cuneo was allowed to recover because she “was a guest in the automobile, not charged with its management, and therefore not participating in' the negligence of the driver.” The position of the motorman in the case at bar is the same as that of Daull, the driver of the automobile, in the Daull case, only in the instant case the motorman did see the motortruck when 300 feet distant and failed to look for it again until it was ‘‘right on me,” or within 15 or 20 feet, too late to avoid the accident. The holding in the Daull case appears to us conclusive and controlling here.

However, the other authorities mentioned by us are also in point. For example, in the case of Neville v. Postal Tel.-Cable Co., which was a suit by a pedestrian tor damages for injuries sustained as a result of being run into by a motorcycle, this court held that the plaintiff could not recover because, after starting to cross the street and observing the motorcycle about 150 feet distant, she took no furcner notice of it, and kept her eyes in front of her without taking another glance in the direction from which the motorcycle was approaching. We- said in that case:

"A pedestrian must be expected to act with ordinary care and prudence, and when stepping into a street and seeing an automobile, it is not sufficient to thereafter ignore its presence and depend upon the accuracy of one’s judgment in estimating its speed and distance, without assuming the risk involved.”

See, also, Roder v. Legendre et al., 147 La. 295, 84 So. 787.

We now pass to a consideration of the defendant's plea of contributory negligence. Defendant contends that the boy was on the step of the car in violation of instructions to ride inside, while it is the contention of plaintiff that the street car was crowded, and that the boy was on the front platform owing to the crowded condition of the car, and that it was not negligence for him to be there under those circumstances. The motorman, the conductor, Lejeune, the truck driver, and Carriere were the only witnesses, to the accident produced' by the defendant. The conductor admits that he did not see where the boy was at the time he was injured. Carriere was not asked if he observed the boy on the step of the car. The motorman and Lejeune are the only witnesses who testified that he • was on the step. Plaintiff and his three boy companions, testified that he was on the right side of the front platform, adjacent to the vestibule door, and that, as the truck struck the car, the impact caused him to lose his balance and his right leg protruded from the platform and was injured between the ear and the truck. They further testified that the street car was crowded, .necessitating passengers standing on the front platform. Their testimony in this respect is also in conflict with that of the motorman and conductor and the testimony of three other witnesses, one of whom had gotten off the car several blocks before the accident and two of whom had gotten off two blocks before the accident. These three witnesses testified .that there was room inside of the car for passengers. The defendant witness Lejeune did not state whether the car was crowded or not. The defendant witness Carriere, who was entirely disinterested, testified that he saw people standing in the aisle inside the car and on both the front and the rear platforms, thereby corroborating the testimony of plaintiff’s son and his witnesses. It would appear to us that, if the boy had been standing on the step, the evidence having established .that that step was completely demolished by the terrific impact, his injuries would have been much greater.

We are of the opinion that the preponderance of the evidence shows that the street car was crowded, and that the boy was on the front platform at the time of the accident. Our courts have uniformly held that a passenger cannot be charged with contributory negligence in merely being upon the platform of a street car when he is compelled to stand there because of the crowded condition of the car. McMahon v. N. O. Ry. & Light Co., 127 La. 544, 53 So. 857, 32 L. R. A. (N. S.) 346; Lancon v. M. L. & T. R. R. & S. S. Co., 127 La. 1, 53 So. 365; Landix v. N. O. Ry. & Light Co., 140 La. 529, 73 So. 668; Shally v. N. O. Public Service, Inc., 1 La. App. 770, Id., 159 La. 519, 105 So. 606; Matthews v. N. O. Public Service, Inc., 8 La. App. 463; Basey v. L. R. & N. Co., 137 La. 451, 68 So. 824, L. R. A. 1915E, 964; Sibley v. Railroad, 49 La. Ann. 588, 21 So. 850.

The plea of contributory negligence must therefore fail.

In view of the abové findings, it is un-. necessary to pass upon the question of the closing of the doors to the vestibule of the street car.

As to the quantum, the plaintiff’s son suffered a fracture of the femur and a compound fracture of the tibia and fibula of the right leg. A surgical operation under a general anaesthetic was performed on the thigh and fractured femur treated by open reduction; the broken bones being brought together by steel plates and fastened with screws. The compound fractures of the tibia and fibula were treated by skeletal traction, i. e., pulling the bones in place with instruments called tongs, and, after setting them, placing the leg in a plaster of Paris cast to maintain position. The whole operation required about an hour. The boy was in the hospital from February 15 to June 15, 1926. He was confined .to his bed and home, off and on, for about a year, during which period of time he was; frequently treated at the hospital, and he was required to use crutches for 2 years. The injured leg is five-eighths of an inch shorter than the uninjured one, causing a tiffing of the pelvis and a compensatory curvature of the spine, which renders him more susceptible .to sacroiliac strain in doing laborious, work than an ordinary person would be, but his doctor states that the injury would not render him incapable of doing laborious work. The arch of his right foot is three-eighths of an inch smaller in circumference than the left one. The impairment in flexion of the knee is 33^ per cent. He has a permanent 10-ineh. scar on the anterior surface of the thigh caused from the operation, and on the lower leg the scarred tissue caused by the protruding bones is sensitive and more susceptible to irritation than ordinary flesh. The duration and full extent of his disability is problematical, his doctor .testifying that, because of his youthfulness, the healing process of nature would lessen the gravity of the injury, and, further, that a very fine recovery had been accomplished.

At the time of the accident the boy was fourteen years and nine months of age, and was earning $6 a week.

In the light of .the jurisprudence of this state, we believe the sum of $10,000 awarded plaintiff is excessive, and should be reduced to the sum of $6,000. Herbert v. Kingston Lumber Co., 126 La. 775, 52 So. 1021; White v. Nutriline Milling Co., 133 La. 870, 63 So. 385; Adams, v. Bolinger, 141 La. 493, 75 So. 218; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194.

The amount of $91.50 expended by the father is also allowed.

For the reasons assigned, it is ordered, adjudged, and decreed that .the judgment appealed from be amended by reducing it from the sum of $10,000 to the sum of $6,091.50, with legal interest from judicial demand until paid, and, as thus amended, the judgment is affirmed.

JANVIER, J.

(concurring). The important question is whether the inattention of the motorman contributed to the subsequent catastrophe because, if that inattention had no causal connection with the collision, if, regardless of that carelessness, the accident would nevertheless have happened, it could not be said ' that the fault of the motorman was the proximate cause thereof, and it would follow that the carrier could not be held liable.

That the motorman was inattentive there can be no doubt, since he, having seen the autotruck approaching the street car track at right angles, and about 300 feet away, should not have allowed it to traverse practically all of the intervening space without again directing his attention toward it. His statement shows that he did not do this.

Had he looked, the excessive speed of the truck would have indicated to him that, whatever may have been the intention of the chauffeur thereof, a complete stop could not be effected. It would have been the duty of the motorman in such an emergency, regardless of whether or not the right of way ordinance favored his vehicle, to bring that vehicle to a stop, or to reduce its speed sufficiently to prevent a collision. That the speed of the truck was excessive is shown by the fact that it knocked the street car from the tracks and also from the resulting damage to both vehicles.

Had the truck been approaching at a normal speed, and had the chauffeur indicated either by signal or -by other action that it was his purpose to stop and accord to the street car the right of way, then the motorman’s action in permitting the street car to continue on its course without slackening its speed would not have been negligence. The. sole cause would have been the defective brakes of the truck.

Thus, had that been the situation, the failure of the motorman to again glance toward the approaching truck, although it would have been negligence, would have been of no importance, because, had he glanced toward it, he would have seen a truck approaching, at a normal speed and giving evidence of intention of its driver to stop, and the dictates of prudence would not have required the street car to stop or reduce its speed.

Here, however, as I have said, a glance would have called his attention to the speed of the truck and would have indicated to him the necessity for stopping the street car.

I concur in the decree.

ON APPLICATION FOR REHEARING

PER CURIAM.

Counsel for defendant insists that we were in error in holding that the boy, on whose behalf this suit was brought, was not contributorily negligent in riding on the front platform of defendant’s street car at the time of the accident.

Conceding that the boy was negligent, a violent assumption, nevertheless his presence .on the platform, even though negligent, had no causal connection with the accident, which . we have found to be due entirely to the joint negligence of the motorman of the street car and the truck driver. Stout v. Lewis, 11 La. App. 503, 123 So. 346.

Plaintiff has asked for an increase in the award, and, after due consideration and for the reasons expressed in our original opinion, we have concluded not to disturb the original amount allowed.

For these reasons both applications for rehearing are denied.


author: HIGGINS, J.

text:
    No. 13,743
    Orleans
    CAROLINA PORTLAND CEMENT CO. v. UNITED STATES FIDELITY & GUARANTY CO. ET AL.
    (November 3, 1931. Opinion and Decree.)
    (November 16, 1931. Rehearing Refused.)
    (January 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    Sanders, Baldwin, Viosca & Haspel and Robert Weinstein, of New Orleans, attorneys for defendant-appellee, United States Fidelity & Guaranty Company.
    Bond, Curtis, Hall & Foster, of New Orleans, attorneys for defendant-appellee, John McGrath.
   HIGGINS, J.

This is a suit by a furnisher of materials against a subcontractor and the surety on the general contractor’s bond, in solido, to recover the sum of $277.95 for building material sold and delivered.

The subcontractor pleaded payment. The surety called the general contractor in warranty, averring that in the application for the bond the contractor agreed to indemnify the surety against any loss as a result of signing the building contract as surety. The defenses of the surety and the general contractor are:

(1) That the claim was paid because, where the furnisher of building materials keeps separate accounts of materials furnished for each job, and knows, or should have known when payment is made, that the money in question came from a particular job, he is held to have knowledge of the source of'the money, and cannot impute payment to another account.

(2) In the alternative, that the debt in question was paid because, at the time of the last payment of $500 by the subcontractor, the claim sued upon was the oldest and most onerous, and the $500 payment should have been imputed to it under the provisions of article 2166 of the Revised Civil Code.

(3) That, where the parties to a contract have followed a custom for a long time, this custom will be construed as an implied condition of the contract, and is binding on the parties, and that, as the plaintiff breached this implied condition, it is not entitled to recover.

(4) That, where one, by his words or conduct, causes another to believe in the existence of a certain state of things and induces him to act- on that belief, so as to alter his own previous position, the former is precluded from averring against the latter a different state of things existing at the same time, and that therefore plaintiff is estopped.

The judge a quo rendered' judgment dismissing the plaintiff’s suit, and also the call in warranty, and the plaintiff alone has appealed.

The record shows that John McGrath had been buying building materials from the plaintiff, which is engaged in that business. The New Orleans Construction Company, one of the defendants, is in the contracting business and had dealings with the plaintiff for some fifteen years. It was the practice or custom between them that, where the New Orleans Construction Company had a contract for constructing buildings, or improvements, and the plaintiff was the furnisher of the materials, plaintiff would send to the New Orleans Construction Company invoices covering materials furnished to subcontractors and the construction company would - deduct from the amounts due the subcontractors the claim of the plaintiff for materials furnished and remit direct. The purpose of the arrangement was to insure payment of the bills. It appears that the plaintiff recommended McGrath as a reliable and trustworthy subcontractor, and the construction company intrusted three jobs to him. In none of these instances did the plaintiff send the invoices to the construction company because the officers of the plaintiff company were well satisfied with the honesty of McGrath, who was a good customer of the plaintiff. McGrath had purchased materials for several jobs before he subcontracted with the New Orleans Construction Company, and left balances due on these respective accounts. All of these accounts, together with the three jobs that McGrath undertook for the construction company, were kept separate by the plaintiff company. After the- completion of .the first job in Nerón place, McGrath failed to pay for all the materials used. He then entered upon the second job at Audubon boulevard, which he completed without paying for all of the material furnished to him. He commenced work upon the third job at Fontainebleau drive, and, as this job was nearing completion, the construction company, while still owing McGrath $450, was notified for the first time by -the plaintiff that McGrath owed plaintiff for material on the other jobs. The officer of the construction company then inquired of the manager of the plaintiff company if he should withhold the payment and remit direct, and the answer was in the negative,. with the explanation that the plaintiff valued McGrath’s patronage and did not wish to offend him. The money was then paid to McGrath, who, in turn, remitted to the plaintiff, and this money was imputed to the payment of the material furnished' to the Fontainebleau drive job.

Taking up the defenses in the above order, McGrath testified that, while working on the Audubon boulevard job, the representative of the plaintiff company called on him and solicited orders for other material and, at the same time, requested payment on account of the materials already furnished; that he told plaintiff’s representative that he would see Mr. Jones of the New Orleans Construction Company and obtain some money that was due him to apply on tlie Audubon boulevard job and would send it to tbe plaintiff; tbat on or about August 20, 1929, he obtained $300 from Mr. Jones for the purpose of paying for the materials furnished for the Audubon street job and mailed it to the plaintiff. It is undisputed that this check was received, and, as the. check was unaccom'panied by any explanation as to what account it would be applied to, the bookkeeper imputed it as follows: $8 to State street work, $31.64 to St. Charles street job, and $260.36 to Nerón place job.

The plaintiff contends that, as the check was not accompanied by any invoice or letter of instruction as to what account the money should be applied to, it had a right to impute payment to the other accounts.

The defendants contend that, since Mc-Grath, the debtor, told the salesman or representative of the company, who called upon him on the Audubon street job for payment, from what source he would obtain the money to pay the Audubon boulevard account, and, as the officers of the plaintiff company were apprised at that time on what job McGrath was working, they knew or should have known the source of the funds and imputed it to the payment of the Audubon boulevard job.

We note that the salesman or representative of the plaintiff who called upon Mc-Grath to sell him more material and to collect for merchandise previously sold was not placed on the stand, and no excuse was offered for having failed to do so. There is nothing in the record to show that he was unavailable as a witness. The testimony of McGrath, therefore, stands uncontradicted. From the testimony of Mr. Jones of the New Orleans Construction Company, and Mr. Bowers, who was formerly the vice-president and traffic manager of the New Orleans office of the plaintiff company and, at the time of the trial, while not in its employment, was still a stockholder (both defendant witnesses who are also uncontradicted), we are convinced that the plaintiff officers kept themselves informed as to the respective jobs that McGrath was working on and from which, of course, he received the money to pay for the materials. We feel certain that the officers of the plaintiff company knew that the remittance of $300 was from the funds furnished by Mr. Jones in connection with the Audubon boulevard contract and was, intended to be applied against the claim for materials furnished for that improvement.

In the case of Roca v. Caruso, 7 Orl. App. 451 (1910), the court considered a case practically the same as the instant one, and said:

“And it is equally unfair for a furnisher of material, knowingly to receive of a contractor money paid to the latter under one contract, and impute the same to some other account whilst the debt incurred in connection with the contract remains unpaid. By that simple system any furnisher of materials would have it in his power to prejudice of the rights of one surety or owner to the advantage of another, as his pleasure or interest might suggest. He might even recoup losses due to his own negligence or laches, by imputing such payments to some worthless account, and in due course falling on a new surety or owner for the whole amount of the new account.”

In Hortman-Salmen Co., Inc., v. Naquin et al., 12 La. App. 491, 126 So. 453, 455 (1930), we said:

“The correct rule, then, is that, if the creditor in such a case as is presented here has knowledge, actual or constructive, that the funds given him by his debtor were derived from a particular source, the payment in question cannot be imputed in accordance with the article of the code, nor by agreement between debtor and creditor, if such’ imputation would be prejudicial to the interest of che third person from whom the funds were obtained.”

In the case of Shreveport Long Leaf Lbr. Co., Inc., v. Meeks et al., 169 La. 1020, 126 So. 513, the lumber company brought suit against the contractor and the surety on his bond to recover for material sold. The court said:

“We do not consider it necessary to review the testimony further than to say that J. N. Meeks testified that he instructed the plaintiff to impute the payment of $2,000 made on September 27, 1926, in its entirety, on the job erected under contract with Mrs. Emma B. Gras, in connection with which the Union Indemnity Company was surety upon his bond. Plaintiff admits the payment, but its witnesses testified that, in their prior dealings with Meeks, it had been their custom to apply payments made by him to his debts of longest standing, and that custom was followed in reference to the payment of September 27, 1926.
“We concur in the conclusion reached by the trial judge that the burden of proof was upon the plaintiff to sustain its contention that the aforesaid payment was properly imputed, and also in his conclusion that plaintiff has failed to establisn that fact by a preponderance of the testimony.”

The learned trial judge found that the payment was improperly imputed, and sustained the plea of payment. We believe that his finding is correct.

Counsel for the plaintiff has referred us to Grand Lodge, B. K. of A. v. Murphy Const. Co., 152 La. 125, 92 So. 757; Wm. B. Thompson & Co. v. Sporl et al., 160 La. 352, 107 So. 135; State v. Miller et al., 169 La. 914, 126 So. 422; Hortman-Salmen Co., Inc., v. Continental Casualty Co., 170 La. 879, 129 So. 515.

We do not find these authorities in point, because, in each case, the court found that the debtor remitted to the creditor and that the creditor had no knowledge! of the source of the money and that the debtor, after being apprised of the manner of imputation, did not object.

In view of the conclusion that we have . reached on the plea of payment, it is unnecessary to consider the other defenses.

For the reasons assigned, the judgment is affirmed.


text:
    No. 13,744
    Orleans
    MALONEY v. CENTRAL FINANCE CO., INC., ET AL.
    (November 3, 1931. Opinion and Decree.)
    (November 16, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, plaintiff in reconvention and appellee.
   WESTERFIELD, J.

Plaintiff, Paul W. Maloney, brings this suit against the Louisiana Marmon Company, Inc., and the Central Finance Company, Inc., claiming substantially that on May 4, 1929, he purchased from the Marmon Company, a “Roosevelt Automobile” and that the Central Finance Company took over the agreement from the Marmon Company; that the price of the automobile was $1,280, of which amount $301 was paid in cash, and $125 by allowance of a credit for a Chevrolet automobile traded in, thus leaving a balance due of $854, which was secured by a chattel mortgage; that he paid $843.40 of this balance to the Central Finance Company “acting for and in behalf of the said Louisiana Marmon Company, Inc.,’’ and offered to pay the remaining $10.55 ($10.60), which was refused, the Central Finance Company, Inc., claiming $168.09 to be still due; that he signed the agreement to buy the automobile, chattel mortgage, and notes, in blank, the amounts being inserted thereafter in his absence. Plaintiff prayed for the annulment of the chattel mortgage which had been executed to secure the balance due on the; purchase price and for judgment ordering the defendants to accept the sum of $10.55 in full payment of the balance due.

The Marmon Company was not cited. The Central Finance Company, Inc., answered admitting that plaintiff had paid $843.40 on the credit portion of the sale, but denied that it acted for the Marmon Company or that the Marmon Company acted for it in the transaction, and, assuming the character of plaintiff in reconvention, averred that it was the holder in due course of a promissory note executed by plaintiff in the sum of $1,012.14, payable in eighteen' monthly installments of $56.23 each, bearing 8 per cent interest from maturity and payable to the Louisiana Marmon Company, Inc., and indorsed by that company to its order; that there is a balance due on said note amounting to $168.69, for which it asked judgment in reconvention.

There was judgment below in favor of plaintiff on the main demand, ordering the cancellation of the inscription of the act of chattel mortgage in the mortgage office, it having been shown upon the trial that the mortgage had been voluntarily canceled, and in all other respects dismissing plaintiff’s demands, and further ordering that there be judgment in favor of the Central Finance Company,’ Inc., and against the plaintiff, Paul W. Maloney, in the sum prayed for. Plaintiff has appealed.

There is no real dispute about the facts in the case. Plaintiff, desiring to purchase an automobile from the Marmot Company, agreed upon a price of $1,280, giving his check for $301 and trading in an old car for $125, thus leaving a balance of $854. He obtained a receipt in which it was stated that the unpaid balance of the purchase price was to be financed. The Marmon Company then brought the original of the agreement of sale which had been reduced to writing together with a note, both of which hadi been signed in blank by Mr. Maloney, to the Central Finance Company, Inc., presumably to obtain cash for the note. The finance company declined to accept the note which had been signed in blank, stating that it was against their policy to do so, and filled out another note for the sum of $1,012.14; the difference between the balance of $854 and the face of this note being represented by the interest anil commission of the finance company. The note with the increased amount was then presented to Mr. Maloney, who signed it. 11

There is considerable controversy over whether the face of the note originally stated that it was to be paid in 15 or 18 installments and, as a matter of fact, it was recorded in the mortgage office as 15, though the face value of the note is correctly given. Since it is admitted that the amount of the monthly installments was $56.23, we do not consider it important to determine whether the note mentioned 15 or 18 as the number of installments, because it takes 18 payments of $56.23 to equal $1,012.14 and not 15.

Plaintiff strenuously denies that he had agreed to pay for the financing of his deferred payments, and seeks to prove that the finance company and the Marmon Company were practically the same, the one acting for the other when occasion arose, and that since the salesman of the Marmon Company priced the car to him at $1,280, the finance company must be bound by that figure and not $1,448.69, the amount which he would be compelled to pay if held liable for the finance charges. We find nothing in the record to indicate the agency of the Marmon Company for the finance company, or vice versa, and, if any mistake has occurred, we must attribute it to plaintiff’s carelessness in signing a promissory note and chattel mortgage in blank, a practice calculated to result in misunderstanding and sometimes in financial disaster as would seem to be obvious to any one, particularly an attorney at law, which is plaintiff’s profession. Hippier v. Argus, 16 La. App. 80, 133 So. 179.

Defendant being a holder in due course of the note sued on, even if it had been increased by the vendor of the automobile to an amount in excess of that agreed on, the note having been signed in blank, defendant’s right to enforce it as written is absolute. Section 14 of Act No. 64 of 1904, the Negotiable Instruments Law.

Our conclusion is that the judgment appealed from is correct, and it is, therefore, affirmed.