author: JONES, J.

text:
    No. 10,547
    Orleans
    TAYLOR ET AL. v. PAILET
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    Alexis Brian, of New Orleans, attorney for plaintiffs, appellees.
    A. D. Danziger, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for $2,000.00 damages for trespass on a triangular lot of ground located on Metairie Road in Jefferson Parish, just above New Orleans. Petitioners, the widow in community and her children, forced heirs of Raphael E. Taylor, duly recognized by judgment of the Twenty-eighth Judicial District Court, after alleging the purchase by Taylor of the triangular lot in duly recorded authentic act from Mrs. Alice Bein, and the continuous actual physical possession thereof by him and his heirs, averred as follows:

(1) Defendant had removed fences and trees from said property and had placed a little gravel over parts of it in an attempt to dedicate it as a public park known as “Pailet’s Place,” for the benefit of an adjoining real estate development owned by defendant, which he had bought on October 18, 1923;

(2) As soon as plaintiffs learned of defendant’s trespass and attempted dedication, they wrote him on September 17, 1924, and again on September 24, that he was causing them damages by his trespassing, and that they intended to rebuild the inclosing fence at once, but on October 8, 1924, defendant ejected from the property plaintiff’s workmen, who were then building the enclosing fences;

(3) On October 16, 1924, defendant repeated his offense by again forcibly expelling plaintiff’s workmen from the property and tearing down at least two-thirds of the then completed fence.

Defendant answered, denying the trespass, but averring that he took possession as owner of the property on September 19, 1923, by clearing, filling and ditching it, and later published a plan of his adjoining property on which he showed this triangular lot as a public park called Pailet’s Place. Respondent further admitted receiving plaintiff’s letters claiming damages, the expulsion of plaintiff’s negro workmen from the property, and the removal of fences and material.

In the alternative, should his claim of legal possession be denied by the court, defendant claims registered title to the property by a long list of detailed acquisitions, set forth at the end of the answer. As the trial court gave judgment for plaintiff in the sum of $500, defendant appealed, and plaintiffs have answered the appeal, asking that the amount be in- ' creased $1,000.00.

The evidence shows the following facts:

R. E. Taylor bought lots 28 to 35, inclusive, in 1902, established his home thereon, and lived there until 1916. The northeast corner of lots 34 and 35 was cut diagonally by Metairie Road and the slough paralleling the road known as Metairie Bayou. Taylor found fences along both sides of Metairie Road. His residence was on the river side, and the triangular portions of lots 34 and 35 were on the lake side of the road. This triangular portion of the lake side was surrounded by a wire fence with one or more gates opening on the road opposite the residence property, and Taylor used this triangle as a pasture for his cattle from 1902 to 1916.

In 1916, Taylor sold his residence property, but retained the triangle. In the deed to Montgomery of his residence property, he established a servitude in favor of the residence property and against the triangle, so as to prohibit the use of the triangle for business purposes or by negroes.

Taylor and his family then moved to California, leaving the triangle fenced and continuing to pay the taxes on it, as he had done since his acquisition. In 1920 Taylor came to New Orleans and, while here, had the fence repaired. This fence was gradually worn out, but the old wires and signs of it on the trees remained until this suit was filed in 1924.

Taylor died in 1922, and a judgment was rendered in the District Court of Jefferson Parish sending his widow and heirs, plaintiffs here, into possession as owners of the triangle. The judgment was duly recorded.

In October, 1923, Pailet, defendant, bought the Daly tract consisting of one arpent, more or less, on Metairie Road by a depth extending to the lake, divided it into squares and lots, and placed the lots on the market. He ditched and leveled this arpent-front tract and dumped the surplus dirt into Metairie Bayou, some in front of his property, and some on the triangle belonging to the plaintiffs. He also partially constructed a gravel road in the triangle.

In March, 1924, defendant caused a lithographic plan of his Daly tract to be published, and on it he caused plaintiff’s triangle to be delineated as a public park called “Pailet’s Place,” and used the plan as an attraction for the sale of lots in his Daly tract.

Plaintiffs had placed the triangle with Mr. Dupas, local realtor, for sale. In September, 1924, Mrs. Taylor came to New Orleans to complete the sale, and was then informed of the trespass and attempted dedication of plaintiffs’ triangle by the defendant. She caused a letter to be written to defendant warning him against further trespass and later that she had decided to replace the ruined fence.

Instead of ceasing his acts of trespass, defendant tried to temporize and compromise; and, when Mrs. Taylor’s employees went upon the property to construct the fence, they were forcibly prevented from doing so, and the work already done was destroyed by defendant. This happened on two occasions in October, 1924.

The present suit was then filed. Without showing any valid title, defendant relied on adverse possession of the triangle for more than a year, and upon a supposed defect in the description of plaintiff’s title.

The judgment putting them in possession, after twenty years of continued possession under a title in their deceased husband and father, gives the description in minute detail and refers to a survey by F. H. Waddill showing the lines, angles and distances with precision. The title of their deceased husband and father had covered lots 34 and 35. The description in the deed by which Taylor acquired referred to a copy of a plan made by Zander to be used in a suit between other persons, which plan does not show lots 34 and 35 as extending across Metairie Road, but as stopping at the road. This was evidently a mistake which was corrected by the description itself, and also later by Waddill, who surveyed both the Taylor property and the Daly property, and in both of those surveys he showed the true extent of the lots.

Waddill’s testimony puts this point beyond question. His survey of the Daly tract now owned by defendant, as well as his survey of the Taylor tract, which are in the record, show that the triangle was no part of defendant’s property, but, on the contrary, that it was part of the Taylor tract.

The possession claimed by defendant consisted in clearing part of the' ground, filling part of the bayou, and making a gravel road through it.

Lanz, one of defendant’s employees, testified that on September 23, 1923, he began filling the property, cutting ditches, building levees and cutting down weeds, but he did not remember what he put in front of Pailet’s adjoining property, and when asked to point out the exact spot on the land that he had filled, he could not locate it. On cross-examination he admitted that he had built the levees in the rear thirteen or fourteen years before. This witness, Marsiglia, and Jackson all testify that they never saw any fence around this property, but they are so confused and involved in their statements on cross-examination that their testimony, which is negative at best, has little or no probative value. Harold Pailet, defendant, testified that he began to improve this property as soon as he agreed to buy the adjoining tract, but he could not remember when he dedicated the triangle to public use.

Fortunately, this lapse of memory is cured by copy of lithographic plan of the Pailet property, which was offered in evidence by plaintiff and shows this triangle marked Pallet’s Place to have been dedicated on March 26, 1924.

Elias Pailet, father of defendant, testified that he agreed to buy the adjoining property in September, 1923, and that he at once began to fill the bayou and clear the weeds off this property, the total expense therefor being $1,182.00. On cross-examination, when showed a copy of deed from Miller to Ricker of June 27, 1923, which contained a full description of the Daly tract, which he claims to have bought, he could not show any reference to this triangle, and the record does not contain any deed showing any title in defendant. He admits that he told plaintiffs’ employees to get off the land and pulled up the posts and removed the wire fence.

It is thus seen that defendants entirely failed to prove actual, continuous, physical possession as owner for one year prior to the suit, as required by law. That such desultory improvements are not sufficient is shown by the following authorities:

Lacroix vs. Crane, 133 La. 234, 62 So. 660:

“The occasional cutting and removal of timber from over-flowed land, and the payment of taxes thereon are insufficient to establish the" actual possession required as the basis of a prescriptive title.”

Crowell Co. vs. Duplessey, 130 La. 842, 58 So. 592:

“Plaintiff is well founded in contending that, in view of the fact that defendant is in possession without titile, his possession is bounded by his actual occupancy.”

Frederick vs. Goodbee, 120 La. 787, 45 So. 608:

“The occasional cutting and removal of t'imber from an isolated tract of forest land is not proof of actual possession as owners.”

On the other hand, the plaintiffs have shown not only a recorded title to the property in question, dated prior to 1902, but actual, physical possession beginning in 1902, continued by using the property as pasture up to 1916, and continued further by the fence surrounding said property until at least subsequent to 1920, and vestiges of possession remain on the property in the shape of fence wires and nails up to the time suit was filed.

It was held in Croom vs. Noel, 143 La. 189, 78 So. 442, that:

“* * * where possession has commenced with the corporeal detention of the thing, it may, if not interrupted in law or fact, be preserved by external signs by the continuance on the property of vestiges of works erected by the possessor, or by the continued, positive, and even negative intention to possess.”

In Jones vs. Goss, 115 La. 926, 40 So. 357:

“Actual possession, once begun, is continued by mere civil possession so long as not ousted by a counter actual possession of one year.”

In Sallier vs. Bartley, 113 La. 400, 37 So. 6:

“The plaintiffs * * * held the whole tract by the same title, their actual possession extended to every part thereof and the intention to possess preserved the civil possession of that part which was not convenient to use, whether these were enclosures or not, and is sufficient for the purposes of the present action.”

Although the record shows beyond question that defendant’s trespasses, depredations and admitted dedication caused plaintiff considerable damage, we think the amount allowed by the trial judge does substantial justice. On this point see the following authorities:

Gsrstner vs. Crescent City Ice Co., 8 Ct. of App. 209.

Perry vs. Junius Hart Piano House, 10 Ct. of App. 170.

For the reasons given above the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,500
    Orleans
    SUCCESSION OF EUGENE CONTEST OF BROWN v. CAMPBELL
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    Charles J. Mundy, of New Orleans, attorney for plaintiff, appellant.
    Joseph F. Monie, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a contest for appointment as administrator. The claimants are Walter Campbell, an alleged creditor, and Joseph Brown, who claims to be a brother of decedent, but who, according to Campbell’s contention, is not a brother, or, at best, is a natural brother.

The evidence shows, conclusively. to our minds, that Brown and decedent were sons of the same parents. There is room for doubt ■ as to whether decedent was born before or after the marriage of the parents, but there is no doubt that the parents did marry and that, whether or not decedent was born before that marriage, at the time-of his conception and at the time of his birth, there was no legal reason why they could not have married. It is also certain that after decedent’s birth he was, during the lives of all persons concerned, openly and universally acknowledged by the parents to be their son.

It is plain, then, that at worst he was a natural brother of Joseph Brown, one of the claimants for appointment.

In this situation we find that two articles of the Civil Code are applicable and that an application of these two articles determines this controversy. Civil Code, Article 923, reads as follows:

“If the father and mother of the natural child died before him, the estate of such natural child shall pass to his natural brothers and sisters, or to their descendants.”

In the absence, then, of father and mother, and also in the absence of other brothers or sisters, Brown is the heir of his deceased natural brother, Charles Eugene.

Civil Code, Article 1042, provides as follows:

“In the choice of the administrator the preference shall be given to the beneficiary heir over every other person, if he be of age and present in the State.”

It is manifest, then, that Brown is entitled to qualify as administrator since he is the natural brother and the heir of the decedent. The creditor, Campbell, is not entitled to the appointment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the cost of appellant.


text:
    No. 11,362
    Orleans
    HASSELBACK v. FREDERICK LEYLAND & CO., INC.
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    Woodville and Woodville, of New Orleans, attorneys for plaintiff, appellee.
    Wm. A. Porteous, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Negligence is admitted and the sole question is the amount plaintiff, driver of an ice wagon, should recover for serious injury to his back on November 16, 1926, when he was knocked from his seat to the floor of his ice wagon by a rear end collision.

The lower court allowed $2,000.00 damage and the defendant has appealed.

Poguenhem, a witness for plaintiff who came up just after the accident happened, testified that the plaintiff did not lose consciousness, but was suffering excruciating pain and was in such a cramped position that he could not be placed in his automobile to be carried to the Touro Infirmary, but had to be carried thither in a patrol wagdn which arrived shortly thereafter.

Plaintiff, a man of fifty-one years, who had for years been driving his ice wagon and delivering blocks of ice weighing fifty pounds, testified that when he reached the hospital he was given an anaesthetic and later on, after an X-ray had been taken, his whole back was placed in a plaster cast. He was a patient in the Touro Infirmary for eight weeks and wore the cast about eight weeks after he left there. He suffered a broken rib at the time and was told at the hospital that he had a broken back. At the time of the trial some fourteen months after the accident, he swore that he still suffered at times and that he was still unable to sit up straight; that he had been obliged to employ a young man to help him deliver the ice, as he could not carry heavy blocks, and that his income had fallen off from forty or fifty dollars a week before the accident to six or eight dollars a week thereafter, and he had had to borrow money to buy the clothes which he was wearing in court; he had trucked cotton and done heavy work since he had been twenty-one, and had always been strong and healthy before the accident.

None of the X-rays referred to in the evidence were introduced in court, nor was Dr. Spencer, who originally applied the plaster cast, produced, but Dr. Hatch, a distinguished bone specialist of this city, for whom Dr. Spencer was an assistant, testified that he had removed the cast from plaintiff’s back at the Touro clinic and had then instructed him to report for further treatment, if necessary; that he had concluded plaintiff must be well, as he had never seen him since. He added that a sprain to the back might cause a great deal of trouble, especially in an older man, and that it was always best to immobilize parts of the back by use of a cast, whether there was a fracture or not; that it was not necessary to have a fracture of the spine to incur serious injuries and suffer much pain.

Dr. Leo Mendel, a witness for defendant, who took an X-ray of the plaintiff’s back some six months after the accident, testified that the plate showed no positive signs of fracture, but that a small fracture might have occurred without any signs necessarily appearing on the X-ray plate, and later on, on cross-examination, he admitted that a sprain to the back would cause great suffering.

Dr. Ledbetter, witness for defendant, testified that he had gone to the Touro Infirmary shortly after plaintiff was injured and found him in a plaster cast; that he had then examined the charts and had seen no reference to any fracture of the spine. Both Dr. Ledbetter and another witness for defendant, Dr. C. G. Cole, a surgeon of this city, testified that they had examined the plaintiff on the day of the trial in the judge’s office and had found no signs of any permanent injury and that they did not believe plaintiff had suffered any, although plaintiff had claimed to suffer when certain vertebrae of his spine were touched, at one time placing the pain several inches from where he placed it at another time.

It is extremely difficult to estimate damages where the evidence is so conflicting and where the injuries are largely subjective. In the somewhat similar case of Moeller vs. M. L. & T. R. R. & S. S. Co., 7 La. App. 559, where the plaintiff had suffered a sprain of the sacro-iliac joint, this court allowed $1,000.00, although the evidence showed that he had worn a canvas belt for nine months and had, lost $300 in salary.

Although the testimony of Doctors Led-better and Cole, after their examination on the day of the trial, as to plaintiff’s complete recovery, and as to his claimed “movable injury” tends to show that he has exaggerated his injuries, undoubtedly the inconvenience and pain caused by-wearing of the plaster cast for sixteen weeks was very great, and plaintiff is entitled to substantial pecuniary compensa tion.

In view of his diminished income and his wearing this plaster east for sixteen weeks, during which period he suffered at times great pain, we think the judgment of the trial court does substantial justice, and it is, therefore, affirmed.


author: WESTERFIELD, J.

text:
    No. 11,538
    Orleans
    MARCUS v. CHECKER CAB CO., INC.
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)

      Fred S. Weis and Henry W. Robinson, of New Orleans, attorneys for plaintiff, appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff was a passenger in a taxicab, owned and operated by defendant corporation. She was injured as a result of a collision between the cab and an automobile belonging to one Bousauet, during the afternoon of December 18, 1926, at about 5:00 P. M., at the intersection of Loyola Avenue and Octavia Street.

It is alleged that the driver of the taxicab was driving at a dangerous rate of speed, failed to stop at the intersection and failed to give the right of way to the automobile, which was approaching from his right as required by the Traffic Ordinance.

The defendant avers that the accident was due entirely to the fault of the driver of Bousquet’s automobile and in no sense to the driver of the taxicab, who, it is claimed, complied with all traffic regulations.

It is also averred and proven that plaintiff settled her claim against Bousquet and it is contended that this settlement estopped her from bringing this suit. The trial court awarded plaintiff $540.50 and defendant has appealed.

The settlement with Bousquet contained a reservation of the right to recover against defendant. It is no bar to this suit. Orr & Lindsley vs. Hamilton, 36 La. Ann. 790; Rudison vs. Glover, 131 La. 381, 59 So. 817.

There is no question that plaintiff, a passenger in the taxicab has the right of recovery from either or both parties to the collision, upon proof of negligence on the part of either or both drivers. Whether Bousquet was negligent, or not, is immaterial, the sole question here being the negligence vel non of the driver of the taxicab. We, like the judge, a quo, are convinced that the speed of the taxicab was excessive; that the driver failed to sound his horn when approaching the intersection, and, that, the proper consideration was not given the Bousquet car, in view of the fact that it had the right of way under the traffic ordinance.

The amount awarded by the judgment does not appear excessive.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,846
    Orleans
    R. F. GRACE PRINTING & MFG. CO., LTD., v. ARNAUD’S DRUG STORES, INC.
    (April 1, 1929. Opinion and Decree.)

      Matthew A. Grace, of New Orleans, attorney for plaintiff, appellee.
    Gerald Netter, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff sued Arnaud’s Drug Stores, Inc., a Louisiana corporation, and Arthur B. Leopold and B. F. Brennan, jointly, severally and in solido, for $291.60, alleging that during January, February, March and April of 1927, plaintiff sold and delivered to Arnaud’s Drug Stores, Inc., merchandise amounting to $291.60, as per the itemized statement annexed to the petition.

He alleges that on September 2, 1927, plaintiff entered into an agreement with A. Arnaud, B. F. Brennan and Arthur B. Leopold, whereby they guaranteed the above account in consideration of a six months’ term of credit, declaring themselves jointly, severally and in solido liable for the payment of the said indebtedness. A copy of the guarantee, signed by defendants but not by plaintiff, is annexed to and made part of the petition.

Plaintiff further alleged that Arnaud, one of the signers of said agreement of guarantee, is a bankrupt.

Leopold and Brennan filed exceptions of non-joinder and mis-joinder, and an exception of no cause of action. Reserving the benefit of said exceptions, Leopold and Brennan admitted their signatures to the document sued upon, but denied the remaining allegations of the petition. Further answering, respondents averred that the purported guarantee annexed to the petition is void and of no effect for the reason that it is uncertain and indefinite as to amount, and for the further reason that there was no allegation of acceptance on the part of the plaintiff.

There was judgment in the lower court in favor of plaintiff and against Leopold and Brennan in solido, in the sum of $291.60, from which judgment said defendants have appealed devolutively.

The evidence shows that the goods were sold and delivered to Arnaud’s Drug Stores, Inc., during the months of January, February, March and April, 1927; that Brennan and Leopold were present on several occasions when orders for merchandise were given to William D. Grace, secretary and treasurer of plaintiff corporation, and that defendant was operating seven drug stores.

Defendants in this court only urge their exception of no cause of action, as they had no witnesses on the trial of the case.

They argue that the guarantee has no validity, because it was not accepted by plaintiff.

This contention is not sound, because plaintiff impliedly accepted the guarantee by acting thereunder, with the full knowledge and approval of Leopold and Brennan. On this point see Civil Code, Art. 1811; Blach vs. Young, 23 La. Ann. 272; Bodenheimer & Bro. vs. Mary Planting & Mfg. Co., 1 Orl. App. 13; Saunders vs. Bolden et al., 155 La. 136, 98 So. 867.

The contention is also made that the contract of guarantee is invalid because of uncertainty and vagueness.

As the testimony shows that the defendant, Arnaud. Drug Stores, Inc., was operating seven drug stores, we do not think that the amount claimed, namely, $291.60, is an excessive charge for printing material for four months. On the contrary, we think that such an amount is covered by a reasonable interpretation of the contract of guarantee. Furthermore, it would certainly have been more equitable and more consistent with fair play and justice for the defendants to have objected to the amount of the materials when furnished, if they expected to make such defense later on.

The evidence amply justifies the conclusion of the trial court and the judgment is therefore affirmed.


text:
    No. 10,581
    Orleans
    PYAETTE v. N. O. PUB. SERVICE, INC.
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    H. W. Kaiser and Martin H. Manion, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

On Saturday, October 10, 1925, at about 3.00 o’clock in the afternoon, plaintiff’s son, Warren, aged three years eleven months, was instantly killed by a street car of defendant company, near the corner of Magnolia and General Taylor Streets.

Plaintiff and his wife with their two boys—Warren, who .was killed, and Robert N., Jr., aged five years eight months —lived at 3801 Magnolia Street. This house was situated on the lake side of the street about' one hundred feet below the corner of General Taylor Street. On the other side of Magnolia at the lower corner of General Taylor there was a grocery store.

On Magnolia Street there are two car tracks of defendant company.

Plaintiff’s wife found herself in need of certain groceries and, as it was inconvenient for her to go to the store herself, she sent her two little hoys. In order to reach the store it was necessary for them to go to the corner, about one hundred feet or so from their front gate, and then to cross the two tracks of defendant.

Mrs. Pyaette, being fearful of the safety of her two children, intended to stand at the front of her house to watch them safely over the tracks and back. However, while they were making the trip she was called to the telephone, where she remained a few minutes, and she returned to the front porch only a moment before the happening of the accident which gave rise to this suit.

The street car which ran over the little boy was on its way uptown. It was traveling at about twenty or twenty-five miles an hour until it reached a point variously estimated at from eighteen to fifty feet of the spot at which the boy was struck.

The boy was crossing the tracks on his way back to his home. He was struck by the car at a point a few feet on the lower side of the pedestrian crossing and the car was brought to a stop with its front end just below the crossing. These facts would indicate that the boy was returning to his home not by the usual route, but in a line either direct to his home or, at any rate, at an angle across the street.

It is charged by plaintiff that the motorman was not keeping a proper lookout ahead and that he should have seen the little boy sooner than he did. Plaintiff also contends that the fender on the front of the car was not lowered and that, if it had been loweyed, the boy would have been caught in it and thus kept away from the wheels of the car.

Defendant claims that the motorman was keeping a proper lookout, that he saw the boy as soon as he could and that as soon as he saw him he did everything in his power to bring the car to a stop, but that the boy was running and that he came into- view so short a time before the accident and when the car was so close to him that there was nothing that could be done to avoid striking him.

The motorman explains that his failure to lower the fender resulted from the fact that after seeing the boy he had just sufficient time to cut off his power, to reverse his motor and put on his brakes. He says that these activities exhausted the second or two intervening and that there was no time left to lower the fender, but that even had the fender been lowered, the result would have been the same, because the boy was not struck by the front of the fender, but in fact ran into the side of it and then fell under the car between the fender and the wheels. According to the evidence the fender, in its normal position, is parallel to the ground and between twelve and eighteen inches above the ground. The fact that a can of pet cream, which had been in the hands of the little boy, was found in the fender, proves rather conclusively that he struck the side of the fender and that his momentum caused this can of cream to fall forward into the fender. He himself was so small that the height' of the fender from the ground was sufficient to prevent his falling into it.

Plaintiff attempts to show- that the little hoy was not running and that therefore there was ample time for the motorman to have seen him after he crossed the curb and entered the danger zone, had the motorman been more alert and diligent.

We are convinced that the boy was running when he struck the car and had been running at least from the time that he left the sidewalk. The disinterested witnesses testified to this and we are much impressed with their testimony, as well as with that, of the motorman.

At the point at which the accident happened the street is forty-one feet ten inches from curb to curb, and the distance from the curb which the boy left just before the accident to the track on which he was hit was twenty-three feet.

The motorman states that when he first saw the boy he was at a point which, according to actual measurement, is eight and one-half feet from the curb. In other words, he had already crossed eight and a half feet of the street and also ten feet of the sidewalk. It is conceded that when he reached this point it was no longer (possible for the motorman to avoid him, but it is argued that had the motorman seen him sooner, he would have applied the brakes sooner and thus might have averted the accident.

We believe that' plaintiff’s case on this theory hangs on too fine a thread. If the boy was running, as we feel sure he was, his speed must have been seven or eight miles an hour. Assuming that it was only seven miles an hour, he was moving a little more than ten feet a second. Plaintiff’s argument, then, requires us to hold that the motorman, in being about seven-eighths of a second too slow in seeing the boy, was negligent. To so hold would be to require a motorman to act with the mechanical precision and with the instantaneous reaction which are not possible of attainment by human beings:

“If he traversed the narrow space between the sidewalk and the track at a run, the time it took him to do it must have been so very brief as to have been approximately instantaneous, and certainly not sufficient to allow of the stopping of the car.”

Litolff vs. N. O. Ry. & Light Co., 124 La. 278, 50 So. 105.

Of course, if the actions of the boy while he was yet on th'e sidewalk were such as to indicate his intention of running across the street, then the motorman was under a duty, as soon as he saw the boy and realized the possibility of his running across the street, to take immediate steps to avoid striking him. This has been the jurisprudence of this State since Burvant vs. Wolfe, 126 La. 787, 52 So. 1025, 29 L. R. A. (N. S.) 677.

But even conceding that the boy’s actions were such as to give intimation of his intention to cross, this would have added only about one second more within which the motorman should have acted and, to have avoided the accident, would still have required more than human alertness and attentiveness.

But we do not believe that the boy’s actions, while on +he sidewalk, were suspicious. His brother testified that when they came out of the store they saw a ear coming and had to wait for it to pass. He, the elder boy, while waiting looked into the store window. The younger apparently stayed in safety on the''sidewalk while the other car passed and then suddenly ran out into the ■ street. The motorman’s delay of a fraction of a second in seeing him was not- negligence.

A motorman cannot he expected to see and to instantly appreciate the danger of each minute happening within the possible range of his vision. In general, he must keep his eyes to the front and must allow them to range from side to side, but to hold that he must at each instant have his eyes focused on every object on each side of the track, as well as on everything in front, is asking too much:

“A motorman of an electric street car who sees a child playing upon one of the sidewalks, and in the discharge of his duty to others, who, for aught he knows, may be in danger, turns his eyes in another direction, is guilty of no negligence in failing to see the child leave the sidewalk and run in the direction of the approaching car, and where it appears that he saw the child a moment afterwards running towards the track, but too late to enable him to stop the car, though he did all that could then be done to stop it, the blame for the resulting tragedy cannot be laid at his door.”

Cloud et ux vs. Alexandria Elec. Rys. Co., 121 La. 1061, 46 So. 1017, 18 L. R. A. (N. S.) 371.

On this phase of the matter we attach some importance to the fact that the car was approaching a curve and that this curve, upon being reached by the car, would take it towards the right. Not only instinct but also prudence requires that one, on approaching a curve, shall look into the direction into which the curve leads. It was proper, therefore, that the motorman’s eyes should have been turned slightly to the right, into which direction the curve would take his car, 'rather „han to the left, from which the child came.

As to the failure to lower the fender, we believe that the evidence establishes the fact that the child fell on the track behind the fender and not in front of it, and that therefore, even had it been lowered, the result would have been the same. Furthermore, we feel that in the emergency, which was not created by his negligence, the motorman did what any careful and prudent motorman would have done in directing all his energies to the stopping of the car.

Our conclusion is that the motorman did all that could be required of a careful, prudent and efficient operator. Feeling as we do, that there was no negligence on the part of the motorman, it is unnecessary to discuss the question of whether the mother’s action in sending her children into a place of obvious danger should bar a recovery by her or her husband.

We believe that this case, in .general, is governed by the principle announced by our Supreme Court in Miller vs. St. Charles St. R. Co. 114 La. 409, 38 So. 401, in which that court said:

“We do not think a motorman is obliged to check the speed of his car whenever there are persons on the sidewalk or at the corner, and if a child comes suddenly and unexpectedly from behind, or from among, such persons, and runs upon the track right in front of the car, so that it is impossible to stop the car in time to save it, we do not think the railway company is responsible.”

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the cost of appellant.


text:
    No. 11,814
    Orleans
    ORLEANS DISCOUNT CO., INC., v. CARTWRIGHT
    (April 1, 1929. Opinion and Decree.)
    Eiias Bowsky, of New Orleans, attorney for plaintiff, appellee.
    Thomas W. Dobbins, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff sues defendant for one hundred and fifty dollars ($150.00).

Defendant had borrowed from W. B. Wright, Jr., one hundred and fifty dollars ($150.00) and Wright, not being able to secure repayment, had, by written instrument, assigned his claim to plaintiff company.

In proving the debt, Wright testified that the assignment had been made so that the Discount Company might bring suit in its own name, and, that if it effected collection, the net amount recovered' was to be turned over to him.

Defendant has filed, in this Court, an exception of no cause of action, claiming that Wright’s testimony shows that the Orleans Discount Company is not really the assignee of the claim.

We see no merit in this contention whatever, and we are well convinced that this defense is not available to the borrower. We are referred to no decisions on this point and we feel that the failure of counsel to refer us to any results from the fact that there are none.

In making the loan, Wright gave Cartwright two checks, one for fifty 'dollars ($50.00), dated October 6, 1926, and one for one hundred dollars ($100.00), dated December 6, 1926. Interest at five per cent (5%) is claimed from dates of the respective checks.

Defendant contends that interest should not have been allowed from the respective dates on which the loans were made, but only from judicial demand, or, at any rate, only from the date on which repayment was due.

Since there was no special agreement with reference to the payment of interest, no interest was due until after the maturity of the obligation.

We find nothing in the record to show when the obligations matured, and, therefore, are of the opinion that interest is only due from judicial demand.

It is therefore ordered, adjudged and decreed that the judgment appealed from he amended, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff and against defendant in the sum of one hundred and fifty dollars ($150.00), with interest at the rate of five per per cent (5%) from judicial demand.

All costs to be paid by defendant.


text:
    No. 11,772
    Orleans
    WILLIAM P. ROSS, INC., v. CORCORAN
    (March 4, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    L. R. Hoover, of New Orleans, attorney for plaintiff, appellee.
    Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff’s president was driving its old Hupmobiie on the upper side of Melpomene Street towards the river. Defendant’s truck, in charge of a negro chauffeur, was being driven down Howard Street on the right side. The two vehicles met in collision at the corner of Melpomene and Howard Streets and piaintiff’s car was severely damaged. Defendant admits its driver was negligent in that he was driving at too fast a rate of speed, but contends that plaintiff’s car failed to accord to defendant’s truck the right of way, as it should have done under the city traffic ordinance. Under the ordinance Howard Street is given the right of way over all streets between Calliope Street and Napoleon Avenue. The ordinance provides, however, that boulevards are right of way streets. We do not believe that it was intended to classify Melpomene Street as a boulevard. It consists of two very narrow driveways, separated by a wide canal, and we see no reason why vehicles on it should be given the right of way over other streets.

It is Quite true that the mere fact that one car is entitled, to the light of way over another does not free the one having the right of way from all obligation to use care, and it is also true that, even if one has the right of way, it cannot on that ground escape responsibility for running headlong into another car already in the intersection. But the evidence here leaves us satisfied that both reached the intersection at about the same time, as the left front wheel of the truck struck the right front fender of the other car.

The admission of defendant’s president, who was driving the car, that he had slowed down to fifteen miles an hour, and the testimony as to long skidmarks leading to plaintiff's car after the collision indicate that defendant’s truck was not accorded the right of way to which it was entitled. Its driver, therefore, was at fault, and, since this fault was, a contributing cause of the accident, plaintiff cannot recover.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment dismissing plaintiff’s suit.


text:
    No. 11,764
    Orleans
    FITZPATRICK v. ZEDAIRD REALTY CO., INC.
    (April 1, 1929. Opinion and Decree.)
    A. T. Higgins, of New Orleans, attorney for plaintiff, appellant.
    E. M. Conzelmann and E. Scott Beer, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit against Mrs. R. Lorio and the ZedairdRealty Company, Inc., in solido, for damages said to have been caused by an alleged slander of plaintiff by Mrs. Lorio, the agent of the defendant corporation.

The sole defense relied upon consists in a denial of the fact that the alleged slanderous words were used by Mrs. Lorio.

Our appreciation of the evidence is in accord with plaintiff’s allegation, and we find, as a fact, that Mrs. Lorio, while acting as the agent of defendant corporation accused plaintiff, in his own home, in the presence of his wife and grandchild, of being “a dirty old man, a liar anti a thief.”

The words are slanderous, per se, and. plaintiff is entitled to damages.

The award can only be nominal, for the reason that the publication was limited to plaintiff’s grandchild, a thirteen-year-old boy, his wife’s hearing being so impaired that she could not have heard the slanderous words. We will allow one hundred dollars ($100.00).

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, William M. Fitzpatrick, and against the defendants, the Zedaird Realty Company, Inc., and Mrs. R. Lorio, in the sum of one hundred dollars ($100.00) with interest at five per cent per annum from judicial demand until paid, and all costs.


text:
    No. 11,720
    Orleans
    AUTOMOBILE SECURITY CORP. v. BURKE
    (March 4, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellee.
    A. Morgan Brian, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit brought in the First City Court of the City of New Orleans by an automobile finance company against the maker of a promissory note.

The only defense presented is by way of exception to the citation served upon defendant. The pertinent part of the citation is in the following words:

“You are hereby summoned, to comply with the demand contained in the petition of which copy accompanies this citation, or deliver your answer to the same in the office of the Clerk of the First City Court of the City of New Orleans, within three days after the service thereof.”

Defendant’s counsel argues that this citation should have notified defendant that he should file his answer w'ithin ten days instead of three and that it should also have notified him that he might add to this one day for each ten miles that his residence was distant from the courthouse, limited to a maximum of fifteen days.

It is contended that C. P., Art. 179, is controlling and that under it the delay of ten days plus an additional day for each ten miles should have been set forth in the citation instead of the three days as quoted.

Act 128 of 1921 reads in part as follows:

“Section 1—Be It Enacted by the Legislature of Louisiana, that the manner and form of proceedings before the City Courts, of this State in Cities having over one hundred thousand inhabitants, in cases where said Court has concurrent jurisdiction with District Courts of all suits for moneyed demands above one hundred dollars, and not exceeding three hundred dollars, shall be governed by the general laws regulating proceedings before the District Courts, provided that delays for answering shall be three days only, Sundays and holidays excluded.”

Counsel argues that Act 128 of 1921 is violative of the Constitution of the State of Louisiana and of the United States, in that persons living at a distance from the courthouse are denied the equal protection of the law. It seems to us that any hardship which may result' in the case of persons living at a distance from the courthouse is the result not of any denial of the equal protection of the laws, but of the voluntary choice by those persons of an inaccessible place to live.

We are quite convinced that there is in the Act nothing to which our attention has been called, which is violative of either the State or the Federal Constitution.

We agree with counsel for defendant that the citation should contain full information with regard to the delays allowed for answering, but we disagree with him in his view that this citation did not contain such information.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed.


text:
    No. 11,578
    Orleans
    GRISWOLD LUMBER CO., INC., v. MARYLAND CASUALTY CO., INC.
    (April 1, 1929. Opinion and Decree.)

      Spearing and Mabry, of New Orleans, attorneys for plaintiff, appellee.
    Flournoy C. Johnson, Jr., of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is an appeal from a judgment in favor of plaintiff against defendant in the sum of $204.00 with 8 per cent interest and 10 per cent attorney’s fees.

Appellee has answered the appeal and prayed for 10 per cent damages for frivolous appeal.

The suit was originally brought for the unpaid purchase price of certain lumber against defendant as surety on the bond of J. V. & R. T. Burkes, who had a duly recorded contract for the construction of the Pontchartrain Apartments in this city. The plaintiff alleges that the lumber was duly delivered to the contractors at the apartment building; that lien was duly filed in the mortgage office and surety was duly served with a 30-day notice of the claim, which entitled it to 10 per cent attorney’s fees under Act 225 of 1918.

The defense is that the lumber company, by accepting a note from the contractors, novated the debt and thereby released the surety.

On the trial of the case plaintiff’s attorneys objected to any testimony tending to prove the existence of a contract of novation on the ground that no facts showing a novation had been set up in the answer, and that merely a general conclusion of law had been pleaded. The objection was overruled and the evidence was admitted.

That the trial judge should have sustained the objection and excluded the testimony is clearly shown by the following excerpt from the opinion of the Supreme Court in the case of W. W. Carre Company vs. Stewart, 166 La. 317, 117 So. 238:

“The taking of a note may extinguish the original indebtedness and thereby novate the debt where such was the agreement of the parties. But no such agreement is urged here. The averments' of fact in the answer do not show novation. The averment that the acceptance of the note was a novation of the debt is an erroneous conclusion of law, in the absence of the averment showing that such was the agreement of the parties or of facts showing the novation did take place. Therefore there was no error in excluding the evidence insofar as relates to the defense of novation.”

However, the evidence does not sustain the contention of defendant. The president of the lumber company denied any intention to novate the debt. The record shows that he was thoroughly aware of the insolvent condition of the contractors, who later became bankrupt. Both he and the contractor were thoroughly familiar with the building laws of the state, and it seems improbable that he would have substituted an insolvent contractor’s note for the bond of a solvent surety company.

In the above quoted case the Supreme Court held that the taking of a note merely changed the form of the indebtedness but did not extinguish it.

In Gails vs. Schooner, 14 La. Ann. 54, the court, affirming Art. 2190 R. C. C., held that novation is never presumed, but must always be proved. See, also, Civil Code, Art. 2187, and U. S. Fidelity & Guaranty Co. vs. U. S. of America, 191 U. S. 416; Farmer’s Bank vs. Bell, 142 La. 539, 77 So. 144.

As the decision of Carre vs. Stewart, above referred to, was handed down on May 7, 1928, and as the judgment of the trial court in this case was rendered and signed on May 30, 1928, and as this decision settled finally the law on this dubious point, we do not think that this case is properly one for the allowance of damages for frivolous appeal.

For above reasons the judgment is affirmed.


author: "WESTERFIELD, J.

text:
    No. 11,597
    Orleans
    BAADER v. DRIVERLESS CARS, INC.
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Monroe and Lemann and Nicholas Callan, of New Orleans, attorneys for plaintiff, appellant.
    Alexis Brian, of New Orleans, attorney for defendant, appellee.
   "WESTERFIELD, J.

As its name signifies, the defendant corporation, is engaged in the business of renting automobiles without drivers. On November 1, 1925, it rented one of its cars to an individual by the name of William Jones, who’ ran into and injured the plaintiff, a lady of sixty-five years of age, under circumstances which clearly involved him with responsibility for the accident, and resulting damages.

Jones, however, is not before the Court, this suit being directed against defendant corporation alone. The liability of defendant is predicated upon its alleged negligence in renting an automobile to an incompetent driver, incompetent by reason of his condition at. the time, and, because he had not been licensed to drive an automobile in the City of New Orleans, as required by Ordinance C. C. S.

We have said that Jones was responsible for the accident which resulted in plaintiff’s injuries. The fact is so manifest that we will not indulge in an analysis of the testimony to that effect. Suffice it to say, that he drove the automobile along Canal Street, the busiest thoroughfare in the city, on a holiday, with reckless speed and abandon and indifference to the safety of other automobiles and of pedestrians. He collided with plaintiff at the corner of Canal and Carondelet Streets with great force, and continued on his heedless way until brought to a stop by the police. When arrested he was discovered to be in a maudlin state of intoxication, a condition very inadequately expressed by his modest admission, between sobs, that he had “a few beers.” This statement, in view of the benign reputation which this beverage enjoys, amounts to slander.

We have emphasized the condition of Jones, at the time of the accident because it had an important bearing upon the issue in this case, the liability of defendant for the result of his (Jones) misconduct, In other words, if Jones was drunk when he rented the automobile from defendant, or if his condition was such as to indicate that he was in fair way of getting drunk, he could hardly be considered competent to drive an automobile. The accident happened in the afternoon, the time being given by the witnesses, as 1:45 P. M., 2:00 P. M., and 2:15 P. M. Accepting the last mentioned time as correct, and comparing it with 2:00 P. M., the time that the car left defendant’s garage, as shown by the record, we find that just fifteen minutes had elapsed. Defendant placed on the stand several of its employees, who testified that Jones was perfectly sober when he entered defendant’s garage and rented the car; that the automobile was returned to the garage at 2:40 P. M., having been driven back by one of defendant’s employees, who was sent to the scene of the accident about seven squares away, and that the speedometer indicated that it had travelled twelve miles while in the possession of Jones.

The fact that the automobile had been out of the garage for forty minutes being explained by the delay incident to its return in the confusion which ensued after the accident, but the distance it is said to have been traveled cannot be explained upon any theory consistent with the facts as developed by either side. To suppose that within forty minutes a perfectly sober man could rent an automobile at two o’clock, drive it twelve miles, imbibe sufficiently to reach one of the final states of intoxication, injure a pedestrian, become involved with the police, abandon the automobile seven blocks away from the garage, while he was being taken to jail, and there be sufficient time left for the' car to be sent for and driven back to the garage, is to stretch the imagination to the breaking point.

The inevitable conclusion is that the speedometer was wrong, and that Jones was either drunk at 2:00 P. M., when he hired the car, or so near it as to give palpable evidence^ that he was in an advanced state of progressive intoxication. Fifteen minutes, the time between the hiring of the car and the accident, is entirely too brief for a sober man to drive seven blocks, much less twelve miles, and drink as much liquor as Jones must have drank to get in the state he was at the time of the accident.

Counsel in their brief profess their inability to discover any Louisiana case directly in point and we are not aware of any. The cases of Lanauze vs. Baldwin & Company, 2 La. App. 349, and Vance vs. Poree, 5 La. App. 109, may be said to inferentially touch upon the question involved. Act 78 of 1924 makes it unlawful to operate a motor vehicle while in an intoxicated condition. See the Encyclopedia of Automobile Law, Volume 2, page 1375. See also Berry on Automobiles, Art. 1144; Mitchell et al. vs. Churches, 119 Wash. 547, 206 Pac. 6, 36 A. L .R. 1132.

In the Churches case it was held that if Churches loaned his automobile "with the intention, or understanding, that Col-bard was to drive it, and with the knowledge that Colbard was likely to become under the influence of intoxicating liquors, and if, with that knowledge, he intrusted the automobile to Colbard under such circumstances as would produce in the mind of a reasonable man reasonable grounds for belief that the driver of an automobile might become intoxicated then, and in that event, if Colbard is liable, Churches would be liable. See also Barker vs. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87.

We have no hesitancy in concluding, without the aid of any direct authority of this jurisdiction before us, that the owner of an automobile who rents it to a drunken driver or to a' driver approaching that condition is negligent and responsible in damages for injuries sustained by a pedestrian due to the negligence of the driver, upon the principle that one who entrusts to incompetent hands a dangerous agency, is responsible l'or the mischief due to the incompetent operation of the machine. To do otherwise would be to encourage those engaged’ in a business like defendant, to launch upon the city streets numbers of death dealing instrumentalities, which no amount of caution would circumvent, and add to the ever increasing peril which confronts the pedestrian.

Ordinance 8639 C. C. S. provides that:

“It shall be unlawful for any person to loan or permit the use of a motor vehicle to a non-licensed operator or driver or to a driver whose license has been suspended or revoked.”

Defendant made no inquiry of Jones concerning the possession of a license as required by the ordinance and it is established that he had none.

It may be, as defendant contends, that the absence of a license, had nothing to do with the accident, and since a drunken driver would be just as drunk with a license, perhaps that is true, but on the other hand the failure to inquire whether a prospective customer had complied with a city ordinance, designed for the protection of the public, and to secure its safety upon the public streets is persuasive of carelessness or at least indifference to salutory municipal regulations in the pub-lie interest and affecting the very business carried on by defendant.

Defendant pleads contributory negligence. Plaintiff is alleged to have been negligent in that she walked across the street against the signal controlling traffic at that intersection. But the clear weight of the evidence is to the contrary. Even if she did, the driver of the automobile, Jones, had ample opportunity to see her in time to avoid running her down and could easily have avoided the accident, as there was but few, if any, automobiles moving in his direction at the time.

Dill vs. Colley, 3 La. App. 305.

Gouzien vs. Feraci, 2 La. App. 115.

Encyclopedia of Automobile Law, page 1262.

Mrs. O’Neill estimates her financial loss and expenses resulting from the accident, including hospital charges, drugs, medical service, destruction of eye glasses and wearing apparel, etc., at . $434.50. She remained in the hospital 13 days. Her arm was lacerated, requiring some forty stitches, she was cut on the forehead and bruised about the side. However, she suffered no permanent injury. We believe an allowance for all items of damage claimed of $1250.00, to be proper under the circumstances.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of Mrs. Louise Baader O’Neill, and against the defendant Driverless Cars, Inc., in the full sum of $1,250.00, with legal interest thereon from judicial demand, and all COStS;


text:
    No. 11,488
    Orleans
    WEINFIELD v. YELLOW CAB CO., INC.
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      A. D. Danziger and P. H. Stern, of New Orleans, attorneys for plaintiff, appellee.
    John P. Sullivan and David Sessler, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit for $5,239.50, damages for personal injuries alleged to have been caused to plaintiff by the negligent driving of defendant’s chauffeur on the night of January 14, 1926, at 7:45, at the intersection of St. Mary and Prytania Streets, in this city. The defense is contributory negligence.

Before trial, plaintiff died and his widow and heirs have been made parties plaintiff. From a judgment based on the jury’s verdict for $2,739.00 defendant has ’appealed.

Although there is some dispute as to the exact spot in the intersection at which plaintiff crossed, as to the exact direction in which plaintiff was going when strucj¡, and as to his speed at the time, and also as to the speed of the cab, the main facts may be briefly stated as follows:

On the night of the accident plaintiff, who was about 55 years old, but active and in good physical condition, was walking on St. Mary Street towards St. Charles, from the river, and the streets in this vicinity were greatly crowded and congested with automobiles, as a miniature carnival parade, given for the benefit of the Fruit Growers Convention, was passing at the time on St. Charles Avenue one block away. The two streets there cross at right angles, Prytania being thirty-nine feet, six inches (39' 6") wide and St. Mary, twenty-six feet, six inches (26' 6") wide. The adjacent sidewalks on each street are twelve and one-half (12%') feet in width and there are buildings on all four corners. On Prytania Street there are two street car tracks. The one on the river side is known as the downtown track and the other as the uptown track. The distance between the two tracks is four feet five and one-half inches (4' 5%").

As the downtown car track was filled with standing automobiles, which were only able to move a few feet at a time on account of the congestion of traffic, plaintiff, when he reached Prytania Street, had to cross between two autos in the intersection of St. Mary- Street, nearer the center of the street than the uptown sidewalk, on which he alleges he had been walking as he came up. After crossing hurriedly between two cars, about two or three feet apart, plaintiff looked downtown to see if anything was approaching on the uptown track and, seeing nothing, started to cross that track in a slightly diagonal direction, and when he was almost over the outside rail, was struck by the left fender of the taxicab, which had been coming down Prytania Street, straddling the street car rail next St. Charles Street. The taxi driver (who had been driving a yellow cab at the time for about a year, and had had no accidents up to the trial), along with all of the other automobiles, had been coming down Prytania Street in the regular line of traffic, as required by the city ordinance, and about three-fourths of a block away from St. Mary Street, after seeing that nothing was ahead of him on the uptown track, turned to the left and came down towards St. Mary at a fast speed, until he was within a few feet of plaintiff.

Though he had no speedometer, the chauffeur says that he was going at the rate of fifteen or eighteen miles per hour when he approached St. Mary Street and that he did not see plaintiff until he was right on him, coming from between two stationary automobiles, about five or six feet below the uptown crossing in a diagonal direction toward his cab; he then blew his horn, jammed on his foot-brakes and veered as much as possible to the right to avoid the accident, but plaintiff, when he heard the horn and saw the oncoming cab, hopped twice towards St. Charles Avenue, right in the front of his car.

At the time of the accident, Mr. and Mrs. Charles W. King, of Cincinnati, who were temporarily in the city, were passengers in the taxicab, and the testimony of King was taken under special orders of the court on January 26th, a few days after the accident. King, who impresses us as a frank and fair witness and certainly must have recalled the accident vividly, testifies as follows:

He was seated on the right hand side of the cab and therefore had a good view of the accident; the chauffeur had been coming down Prytania Street, at a speed of at least' twenty-five miles per hour, until he almost reached the uptown crossing of St. Mary Street, when Weinfield came out of the line of traffic about fifteen or twenty feet in front of the cab, and chauffeur applied his brakes and started to sound the horn; plaintiff then looked around and, when he saw the car coming down on him, made two hops towards St. Charles Avenue and was struck by the left fender of the car; he had felt uneasy when the chauffeur turned our. of the downtown traffic line, because he felt it was a dangerous procedure, as traffic might come out St. Mary Street and turn up Prytania, and there would be no way to' escape; when the cab struck plaintiff he was knocked forward about ten feet.

On cross-examination he says that the accident occurred on the uptown side of St. Mary Street. He thought chauffeur was driving a little too fast when he approached the intersection at a speed of at least twenty-five miles per hour with all the congestion then existing.

The statements of King as to speed are confirmed in a measure by Yarnado, who was driving the car in front of which plaintiff passed when he crossed over the downtown car track. This witness says that he did not see the accident, but he heard the brakes grinding immediately after plaintiff passed in front of him, and when he turned his head he saw the form of a person “hurtled through the air.”

Defendant, both in his oral argument and his able brief, contends most strenuously that the judgment of the lower court should be reversed because plaintiff was guilty of contributory negligence in trying to cross in front of the cab when he might have saved himself by stepping back two or three feet. In support of his argument he has quoted many decisions and authorities, which undoubtedly are good law, but we do not think applicable here. If we accept the statement of defendant’s chauffeur, his only witness, that plaintiff ran through the downtown traffic diagonally right into his cab, and that he did not see him until he was right on him, not more than four or five feet away, we hardly think that plaintiff could have stopped in time to avoid the accident and step back.

On this point we think the evidence of King is more probable and more consistent with the facts when he says plaintiff was coming at a rate of twenty-five miles per hour until he was within fifteen or twenty feet of plaintiff, when he suddenly began to blow his horn, slam on his brakes and veer his car to the right. Under such circumstances a pedestrian can hardly be considered guilty of contributory negligence, although the course he selects results in injury which he might have escaped had he acted otherwise. This principle has been repeatedly upheld by both this court and the Supreme Court.

In Isaac D. Stone vs. N. O. Public Service Inc., No. 10,460, Court of Appeal 119 So. 757 (not yet [officially] reported), 45 C. J. 962, the Court said:

“Conduct which might otherwise constitute negligence may not be so considered where the acts and omissions of the person injured occurred in the presence or under a reasonably well founded apprehension of impending danger, or in an emergency which is calculated to produce fright, excitement or bewilderment and affect the judgment.
“The rule is well established that, when one is required to act suddenly and in the face of imminent danger, he is not required to act as if he had time for deliberation and the full exercise of his judgment and reasoning faculties.” (Navailles vs. Deilmann, 124 La. 421, 50 So. 449; 134 American State Reports 508). 45 Corpus Juris, pages 963 et seq., also
“Ordinary care to avoid injury is all that is required.
“The test is did he act as a reasonably prudent man would have acted under the same or similar circumstances.
“He will not he held guilty of contributory negligence merely because he failed to exercise the care a prudent person would have exercised under ordinary circumstances.
“When a person exercises the care and caution in an emergency which an ordinary prudent person would have exercised under the same or similar circumstances, he is not negligent merely because he fails to exercise the, best judgment * * *; or in attempting to escape the danger under such circumstances put himself in a more dangerous position.
“So also where by the negligence • of another, one is compelled to choose instantly between two hazards he will not be guilty of contributory negligence, although the one he selects results in injury and he might have escaped had he chosen the other, or had he done nothing at all.” 45 Cyc. 963 et al.

This principle of law has been followed by decisions of this Court. In the case of Johnson vs. Boyle, 5 La. App. page 362, the decision of Navailles vs. Deilmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508, cited supra, is quoted with approval.

The opinion also quotes with approval the- case of Thiess vs. Thomas, 77 N. Y. Supp. 276, holding in part:

“If an automobile comes upon a boy under circumstances calculated to produce fright or terror, and such fright causes an error in judgment, by which he runs in front of an automobile, he is not guilty of contributory negligence.”

The driver was guilty of negligence in leaving the slow-moving line of traffic and driving down the wrong side of the street at the speed of twenty-five miles an hour, in violation of the traffic ordinance, when all the streets in that neighborhood were congested with traffic on account of the proximity of a carnival parade, and we think' that this negligence was the proximate cause of the accident.

In the case of LeBlanc vs. Checker Cab Co., 8 La. App. 472, where the plaintiff was injured by one of the cabs of defendant company in returning from a carnival parade, also down on Prytania Street, this court used the following language:

“A 'taxicab driver should regulate the speed of his cab to conform to traffic conditions. On a carnival night when the streets are crowded with automobiles and pedestrians, unusual care must be observed by the driver of a taxicab, and his cab should be at all times under control and its speed such as to permit a complete stop at a short distance.”

On this point see, also, the following authorities :

Gonzales vs. Allen, 7 La. App. 550.

Green vs. Hamilton, 3 La. App. 120.

Gouzien vs. Feraci, 2 La. App. 115.

Tolliver vs. Checker Cab Co., 3 La. App. 278.

Dill vs. Colley, 3 La. App. 305.

Roy and Wife vs. Israel, 3 La. App. 311.

Wall vs. Donahue, 8 La. App. 335.

Navailles vs. Deilmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508.

Shields vs. Fairchild, 130 La. 648, 58 So. 497.

Kelly vs. Schmidt et al., 142 La. 91, 76 So. 250.

Southall vs. Smith, 151 La. Ann. 967, 92 So. 402, 27 A. L. R. 1194.

Dr. Magruder, plaintiff’s physician, testified humerus in plaintiff’s right arm was broken just at the point of the shoul der; that he had brush burns on his face, nose and chin, • and that two of his front teeth were broken, and there were bruises on one of his arms, on one of his legs and on both hands; that he was in bed about a week and that his arm was immobilized for over a month, and that he continued to suffer some pain for some time thereafter. As the doctor, druggist and dentist bills were proved to amount to $239.00, the amount allowed for actual pain and suffering and consequent discomfort was $2,500.00.

We think that the amount allowed does substantial justice and for this reason the judgment is affirmed.


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    No. 11,698
    Orleans
    OVERTON v. NORDYKE
    (February 11, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Claude W. Duke, of New Orleans, attorney for plaintiff, appellee.
    James G. Schillin, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit by a physician against a husband for professional services rendered to a wife.

The husband refuses to pay, claiming that the wife deserted him and left the matrimonial domicile, returning to Hammond, Louisiana, to live with her mother. He also contends that as the juvenile court in New Orleans has ordered him to pay a fixed monthly allowance to his wife, the amount of that allowance is the limit of his obligation to his wife directly or for her necessities and that this is particularly true in the case of the present plaintiff as he had full knowledge of the alimony proceedings, having, by interrogatories, testified therein. Lastly defendant contends that the suit should be dismissed because the petition is addressed to “The First City Court for the Parish of Orleans” instead of to the “First City Court for the City of New Orleans” which latter is its correct title.

Defendant’s last contention, if well founded, would effect the peremptory dismissal of the suit and we, therefore, feel that it should be disposed of before we go into a discussion of the other questions involved.

Defendant cites three cases on which he relies for a dismissal of this suit: Lukis vs. Allen, 45 Ann. 1447, 14 So. 186; Watson vs. Pierce, 6 Martin (N. S.) 417, and Wadsworth vs. Harris, 1 Rob. 96; all of these cases as well as the case of Sam Kunnes vs. Kogos, 10 La. App. 602, 119 So. 451, decided by this Court Jan. 7, 1929, are based on Art. 171 C. P. which required, among other things, that the petition must mention the “name and title of the court to which it is addressed.”

It is quite true that a petition does not contain the name and title of the court to which it is addressed or which is addressed to one court and filed in another is fatally defective, but we do not feel that the doctrine of the cases cited should be- extended so as to include cases in which the name of the court is incorrectly given in an inconsequential detail. Particularly is the error here of no importance because the geographical limits of the city of New Orleans are the same as those of the Parish of Orleans. In other words, to all intents and purposes the city of New Orleans is the Parish of Orleans and we feel that it would be in effect to abandon the substance for the shadow to dismiss this suit for so harmless an error as appears in the petition.

Defendant contends that as his wife was not living with him there could be no presumption that he authorized her to employ a physician. He cites Fabacher vs. Rouprich, 2 La. App. 138. We do not think that case is in point. There the wife was engaged in the operation of a dairy. Here the question involved is the liability of the husband to furnish to his wife, wherever she may be, the necessities of life. The liability of a husband to one who furnishes to a wife necessaries, and we know of nothing more necessary to' a sick wife than medical attention, results from an implied agency in the wife to contract for and on behalf of the husband, and, wherever the wife may be, so far as the general public is concerned, she has this implied authority unless he, the husband, can show that he, himself, did furnish or was ready and willing to furnish such things as, according 'to his income and station in life, were necessaries, and to furnish them at the proper time and in the proper place.

That defendant deserted his wife we have no doubt whatever after reading the evidence. Being convinced of this, we are likewise convinced that she was justified in returning to her mother in Hammond, Louisiana. That was the best and cheapest place for her. Alone and in a boarding house and in a tubercular condition, she would soon have been on the mercy of the public and she was fully justified in going home.

It is manifest that whatever medical services her husband had arranged for her in New Orleans were of no use to her after reaching Hammond and she was therefore justified in obtaining medical help there and the doctor who rendered the service was justified in assuming that she was still her husband’s agent for the purpose of contracting for such service.

If then, on reaching Hammond she was presumed to be her husband’s agent for the purpose of contracting for necessaries, this presumption would continue until the happening of some event which would have the effect o.f changing the legal situation and the burden of proving the happening of such an event is manifestly on the husband. He claims that it was terminated, if it ever existed, by the alimony proceeding in the Juvenile court. We do not feel that the proceedings in the Juvenile Court of themselves terminated the presumption that the wife had the authority to bind the husband for necessaries. The judgment rendered by that Court instead of showing that a termination of that agency was intended, on the contrary fixed the amount of the alimony at a smaller sum than the Judge believed was justified by the husband’s income because the husband claimed that he had a large amount of doctor’s bills to pay. We believe it is a fair assumption that these were among the very bills the husband had in mind when he made the plea referred to for a small alimony Judgment.

The amount sued for was $119.00, but plaintiff included in that amount one item of $18.00 for a trip to Covington and he now admits that this should not have been included and he therefore asks for only $101.00. The amount of his charges, considering the services rendered seems to us to be most reasonable.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at the cost, of appellant.


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    No. 10,623
    Orleans
    SMITH ET AL. v. HEREFORD
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing -Refused.)

      Leon Levitan, of New Orleans, attorney for plaintiffs, appellees.
    W. J. Waguespack, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a promissory note in the principal sum of $500.00, dated December 9, 1922, and stipulating for interest at the rate of 7 per cent from date and 10 per cent attorney’s fees. The note matured June 9, 1925, and this suit was filed July 11, 1925.

The defendant pleaded want of consideration and fraud, and, by way of reconventional demand, asked judgment for $4,-553.01. There was judgment for plaintiff as prayed for and against defendant dismissing his reconventional demand. Defendant has appealed.

It appears that plaintiff and her husband, Herbert K. Smith, were engaged in the retail jewelry business at No. 611 Canal Street under the corporate name of “Herbert K. Smith, Inc.”, the charter of the corporation having been executed in June, 1921. A public accountant by the name of G. R. Green, for whom the defendant, Hereford', worked, was employed as an auditor. Through his connection with Green, Hereford became acquainted with the affairs of the Smith corporation and with the Smiths. He concluded to interest himself in the business and acquired fifty-five shares of the capital stock, and was elected secretary of the company at a salary of $50.00 per week. As secretary, he was in complete charge of the company’s finances, kept the books, paid the bills, made deposits and signed the checks. In December, 1922, Hereford bought the interest of the Smiths in the business, acquiring their stock on a basis of $100.00 per share, its par value. He paid $2,900.00 in cash and for the remainder of the purchase price executed seven notes, one of which matured every six months, the note sued on in this case being the fifth of the series. A condition of the sale of the stock required the Smiths to refrain from going into the jewelry business for a period of ten years. At the conclusion of the sale the Smiths left for California. Hereford, after his acquisition of the Smith stock, obtained additional capital, changed the name of the corporation to “Hereford, Inc.” and proceeded to conduct the business. He was unsuccessful and on July 24, 1925, instituted proceedings in liquidation in the Civil District Court for the Parish of Orleans. The note of defendant having in the meantime become due, demand was made upon Hereford, without avail, and this suit followed.

It is alleged that the note is without consideration because given in payment of stock which, at the time of sale, was represented by the plaintiff and her husband to be worth par, or $100.00 per share, whereas, as a matter of fact, the book value of the stock at that time was only $27.73: The charge of fraud is based upon certain alleged false entries and other irregularities which are claimed to have resulted in a fictitious surplus, whereas, as a matter of fact, there was a deficit.

Assuming that the averments of fact in the answer have been proven, the most favorable aspect in which defendant’s case • may be considered, plaintiff is nevertheless entitled to recover. Hereford had exceptional opportunity for discovering the true condition of the affairs of the corporation. As previously stated, he was, as an employee of the accountant Green, its first bookkeeper; he thereafter became its secretary and, in that capacity, received and disbursed its income, kept its books and knew or should have known every essential fact concerning its affairs. If Mr. or Mrs. Smith misrepresented anything, or practiced any deception, the least vigilance or industry would have revealed the fraud. Article 1847, Revised Civil Code, paragraph 5, reads as follows:

“A false assertion as to the value of that which is the object of the contract, is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary attention have detected the falsehood, he shall then be supposed to have been influenced by his own judgment than the assertion of the other.”
“Mere commendations, or false representations as to value, where the buyer has an opportunity to ascertain its value by ordinary diligence and inquiry, does not constitute actionable fraud, even when made with intent to deceive.”

German National Bank’s Receiver vs. Nagel, 26 Ky. L. Rep. 748, 82 S. W. 433.

Federal-Farwell vs. Colonial Trust Co., (C. C. A.) 147 Fed. 480.

“To warrant a rescission or the recovery of damages, the representations must have been of such a character the complaining party had a right to rely upon them. Where the parties deal at arm’s length and stand on the same plane, and the means of knowledge are at hand, a party to a contract for the sale of stock must use due diligence to ascertain the truth.”

Fletcher on Corporations, Sec. 3876,- Vol. 6, page 6543.

Judge Story, in his great work on Equity Jurisprudence, in Volume I, page 221, says:

“Equity is a practical system, although, it will not aid immorality, does not affect to enforce mere moral duties; but its policy is to administer relief to the vigilant and put all parties upon the exercise of a searching diligence.”

Moreover, whatever fraud was practiced, or whatever irregularity existed concerning the corporate affairs at the time that defendant bought the stock, was known to the defendant, Hereford, in January, 1923, about one month after his purchase of the Smith stock. From that time until the filing of his answer in this suit, July 22, 1925, no complaint and no offer of restitution was made to the Smiths. Defendant was, therefore, guilty of laches, and may not now be heard to complain.

“Parties to a contract discovering that they have been deceived or defrauded therein, must, in order to avail themselves of the fraud, so soon as the vice comes to their knowledge, repudiate the entire agreement.
“If instead of so doing, they advisedly continue to carry out the contract, objection is waived.”

Marshal vs. Sims, 1 McGloin 223.

“In all actions of rescission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract. An offer of restitution must be alleged and (proved by the plaintiff as an indispensable preliminary in an action to rescind a commutative contract.”

Walden vs. City Bank of New Orleans, 2 Rob. 165, 166;

Heitt vs. Bridewell, 3 Rob. 279;

Tippett vs. Jett, 3 Rob. 313;

Jones vs. Sidle, 5 Rob. 65;

Sewell vs. Willeox, 5 Rob. 87;

Gorham vs. Hayden, 6 Rob. 450;

Merriman vs. Kemper, 9 Rob. 68;

Bonnafe vs. Lane, 5 La. Ann. 225, 229;

Jamison vs. Duncan, 12 La. Ann. 785;

Matta vs. Henderson, 14 La. Ann. 473;

Stewart vs. Presley, 22 La. Ann. 514.

"Before a party can annul his contract, he must restore what he has received under the contract, and place the other parties in interest in the position they occupied previous to the contract.”

Blake vs. Nelson, 29 La. Ann. 245.

Caddo Oil Co. vs. Producer’s Oil Co., 134 La. 701, 64 So. 684.

“A person cannot rescind a contract for the purchase or sale of stock for fraud, either at law or in equity, if he has been guilty of laches or unreasonable delay either in discovering the fraud or in repudiating the contract after its discovery.”

Fletcher on Corporations Sec. 3881, Vol. VI.

“A purchaser of stock who with knowledge of the fraud, elects to receive the benefits of the contract, or who uses the stock as his, or who by his acts, recognizes the contract as being in existence, thereby affirms the contract, and cannot subsequently rescind it.”

Fletcher on Corporations, Sec. 3882, Vol. VI.

For the reasons assigned, the judgment appealed from is affirmed.


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    No. 11,446
    Orleans
    CHISHOLM v. JAHNCKE DRY DOCKS, INC.
    (April 1, 1929. Opinion and Decree.)
    O. H. Dabezies, of New Orleans, attorney for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit under the Compensation Law. The sole question presented is whether plaintiff, an employee of defendant, was “seriously permanently disfigured about the face” within the meaning of clause 16 of paragraph (d) subsection 1, section 8 of Act 85 of 1926.

Plaintiff’s alleged disfigurement consists of a scar three centimeters in length and one-third of a centimeter in width, running diagonally along the left side of his face in the region of the chin, which according to the medical testimony in the record, will gradually bleach out and narrow, become ies.s apparent, and eventually be difficult of observation.

In holding that plaintiff was disfigured within the meaning of the section of the Compensation Law referred to, the trial judge based his conclusion upon the case of Dickson vs. U. S. Glass Co., 3 La. App. 83, where it was held that “a scar extending from the upper border of the right eye-brow around the exterior arching of the eye down to about one-quarter of an inch above the middle of the cheek” was such disfigurement as was contemplated by the statute. In that case the scar was two and one-half inches long and one-half inch wide, while in the instant case the scar is considerably shorter and narrower (one and one-half by one-sixth inches); moreover, the same court (Court of Appeal for the Second Circuit) subsequently held in DeSoto vs. Magnolia Pipe Line Co., 119 Sou. Rep., 889 (9 La. App. 205), that a scar one and one-half inches long above the right eye was a slight, and not a serious disfigurement.

In addition to the photograph of plaintiff, and the medical testimony in the record, the plaintiff himself, appeared in this Court by consent of both counsel and afforded us an opportunity to see and examine the scar and form our own opinion as to the extent of disfigurement involved by first-hand impression, an unusual opportunity for an appellate court.

Our conclusion is that the defendant is not seriously disfigured by the scar; his physical appearance is but slightly marred and likely to be less so in the course jf time.

We can think of no form of activity, social, political or economic, in which plaintiff might indulge, and be subject to any embarrassment by the presence of this small scar.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant, Jahncke Dry Docks, Inc., and against M. F. Chisholm, dismissing plaintiff’s suit.


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    No. 11,169
    Orleans
    LAROSA v. N. O. PUBLIC SERVICE, INC.
    (April 1, 1929. Opinion and Decree.)

      Bond, Curtis, Hall & Poster, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff sues for $2,249.00 damages for personal injuries, loss of time, etc., alleged to have, been caused by the negligence of the defendant company. The basis of his charge of negligence is that the car was started without warning, just as he was about to step from the rear platform to the ground, and he was precipitated unknowingly into a trench, or hole, about ten feet long, three feet wide and more than six feet deep, which had just been dug by defendant company alongside of the track. He further alleges that the hole had no barricade and that he suffered two broken ribs and minor injuries.

The defendant denied all allegations of negligence and averred that plaintiff’s injuries, if any, were caused by his own carelessness in alighting from the car.

There was judgment for defendant and plaintiff has appealed.

The evidence shows the following:

The gas department' of the defendant company, under a.general permit from the city, on the afternoon of December 11, 1926, about 2:30 p. m., were laying a gas pipe at the corner of Dumaine and South Carrollton Avenue, in this city; that they had just dug a trench about ten feet long. five feet deep and three feet ■ wide at the downtown river corner of Dumaine and Carrollton, the said trench beginning about the river property line on Carrollton and extending out Dumaine toward the lake about ten feet, at a distance about eighteen inches from the car track. The car, which was going out Dumaine Street towards the lake, stopped a little short of its usual place, about 35 or 38 feet on the river side of the hole, where two passengers alighted without trouble. When the car started forward, plaintiff, who was seated in the rear, heard the two signal bells for starting and s.uddenly realized that he was passing his corner. He went quickly to the rear platform, carrying a paper, an umbrella and a package in his hand, and stepped off the car, although warned by the conductor to watch his step; he stepped either into the hole or so close to the edge that he was necessarily carried into it.

He fell on a negro wh was working in the hole at the time and broke two of his ribs and suffered other minor injuries; Peter Farrell and Ike Washington were working in the hole at the time and Cassebonne, the foreman of the gang, was standing on the downtown side of the trench, about the middle; Dave Johnson was flagging traffic about near the river end of the hole and John Williams was receiving the dirt as it was thrown out on the downtown side.

It is apparent from the above findings that plaintiff, having become immersed in reading his paper, or in something else, failed to notice when the car stopped and, when he heard the starting bell, suddenly realized that he was about to pass his corner; that he then hurried to the platform and jumped off the car, in spite of the conductor’s warning, without paying any attention to what was immediately in front of him.

Plaintiff contends that it was negligence for the railroad company to permit him to descend from the car without a special notice or warning of the existence of the trench, which had heen dug by the side of the track. In support of this doctrine, he cites two cases: Leverett vs. Shreveport Belt Railway Co., 110 La. 399, 34 So. 579, and Gates vs. Railway Co., 141 La. 946, 75 So. 1002.

• The first case cited tends to support the position taken by defendant under the facts found above, for paragraph 3 of the syllabus reads as follows:

“Even should a railway company be under no direct obligation to repair ox-keep ixx good condition the bridges ox-streets along its line of way, it should avoid stopping its cars at places where it is not safe for passengers to embark or alight. It should 'either stop its cars short, or pass them beyond the danger points.”

Here, the car was purposely stopped short of the danger in a safe place.

The Gates case has no application, as the court found that the iron stake leaned inward, over the car step, and struck the plaintiff as he stood on the platform.

In Gibson vs. Shreveport Traction Co., 142 La. 497, 77 So. 129, the Supreme Court said:

“A male passenger 60 years old, apparently in full possession of his physical and mental faculties, who steps from a street car, just as its motion is slowed down before it reaches and within a few feet of its stopping place, assumes the risk of a danger, which is apparent to him as to the conductor, and it is not negligence on the part of the street railroad company to permit him so to do.”

In Boulden vs. Shreveport Rwys. Co., 145 La. 976, 83 So. 211, the Court said:

“Where a lady passenger upon a street car, through preoccupation, unmindful of the attempt of the conductor to warn her of the danger, attempts to alight from the car while the car is in motion, she is not entitled to recover from the company operating the car, damages for the injuries sustained.”

Here, the conductor testifies that he was not aware of the hole, as this was his first trip that Jay; that he was standing on the extreme rear platform, about the middle; that the man came out v§ry rapidly and stepped off in spite of his warning, before anybody could realize what he was going to do.

There is clearly no responsibility on the part of defendant and the judgment, must, therefore, be affirmed!