author: JANVIER, J. HIGGINS, J.

text:
    No. 13,728
    Orleans
    CAZEAUX v. NEW ORLEANS PUBLIC SERVICE, INC.
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)

      Alex W. Swords, of New Orleans, attorney for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff seeks to recover from the local street car company for damage sustained by her through the death of her husband, which she alleges was caused by the negligent operation of a street car by a motorman employed by said company.

The court below, after hearing the evidence, rendered judgment dismissing plaintiff’s suit, and from that judgment plaintiff has appealed. The matter was before us once before on appeal from a judgment of the trial court sustaining exceptions of no cause of action. On that appeal we reversed the judgment of the trial court and held that the allegations of the petition, if true, did disclose a cause of action. See Cazeaux v. N. O. Public Service, Inc., 14 La. App. 320, 124 So. 685.

The accident occurred in St. Peter street very near to the upper river corner of the intersection of that street with Broad street. Broad street is very wide, has a neutral ground in the center with a paved driveway on, each side, and on the neutral ground is located a street car track of defendant company. St. Peter street crosses Broad, and the street car track at that corner turns from the neutral ground of Broad into St. Peter. A street car going up Broad street must turn to its left at St. Peter and continue on its course in St. Peter street towards the Mississippi river. This makes it necessary that a street car pursuing such a course, which was the course which was being followed by the car involved in the accident with which we are now concerned, must cross the river side driveway of Broad street before entering St. Peter.

Cazeaux, the deceased, evidently intended boarding the street car, and for that purpose had stepped from the sidewalk on the upper side of St. Peter street .a few feet into the roadway, so that, when the car should complete the turn into St. Peter street and come to a stop, he might be sufficiently near to board it.

As the car on its uptown course neared the St. Peter street turn, there were at least four automobiles proceeding downtown on the river side driveway of Broad street, and it was thus necessary that these stop for the car, or that the car stop and allow them to pass. The first of the automobiles was a Ford coupe, which was being .driven about four feet from the neutral ground of Broad street. Behind it and a little to the right was a truck driven by one Albert Bazile. Behind these two vehicles were two others.

As the street car commenced to turn from Broad into St. Peter street, apparently there was some danger of a collision between it and the approaching Ford coupe, as the attention of most of those who later testified in the case was attracted by the ringing of the gong of the street car.

The Ford came to a stop after slightly turning to the right, and the street car then, at a speed of from four to five miles an hour, continued to cross the Broad street driveway and was just entering St. Peter street, when the truck, which had been following the Ford, and which was being driven at a speed approximating twenty miles an, hour, was swerved by its driver to the right into the same direction as that in which the street car was then proceeding, the chauffeur thereof evidently realizing that he could not bring it to a stop and apparently hoping to avoid a collision with the street car by driving alongside it into St. Peter street.

Unfortunately, however, Mr. Cazeaux was standing directly in the path of the oncoming truck, which struck him, knocked him to the ground, and then crashed into the right side of the street car.,

Both vehicles came to a stop a few feet beyond the spot at which .the unfortunate man had been standing.

In her petition plaintiff charges that her husband had been standing in Broad street and not in St. Peter street, and that this was made necessary by the bad condition of the surface of the latter street, which she charges was so muddy that a prospective passenger could not stand thereon. The evidence, however, overwhelmingly rehuts her allegations on this point and leaves no room for doubt that the actual facts were as we have outlined them. It is charged that the motorman of the street car was negligent in permitting the car to continue on its course across the Broad street driveway without affording to vehicles on that driveway time to cross ahead of it, or to come to a stop, and that he was also at fault in that, even if the driver of the truck was negligent, nevertheless he (the motorman), by exercising caution, could have brought his slow moving street car to a stop, which would have afforded Cazeaux an opportunity to. step out of the path of the on-coming truck by jumping on to the tracks ahead of the street car.

Defendant maintains that deceased was guilty of negligence on his own part in standing in the street when it was not necessary for him to do so, and also that the motorman was in no way at fault in as.suming that the truck could dd as the automobiles had done and could stop without the necessity of turning into St. Peter street.

There is one very important fact which is scarcely in dispute, and that is that the brakes on the truck in question were so defective as to be almost worthless. The evidence shows that tests made immediately after the accident disclosed that the brake pedal could be> depressed entirely, with little, if any, noticeable effect.

The questions presented for our determination are. the following:

First. "Was the motorman at fault in creating or in contributing to the dangerous situation?

Second. After the danger was apparent, was there an opportunity for the motorman to avoid the accident?

Of course, if the motorman was at fault in creating or in contributing to the danger of the situation, the question of whether he had or had not the last clear chance to avoid the accident would. be of no importance, because where there are joint tort-feasors, as a result of the negligence of two or more of whom another person is injured, neither of the joint tort-feasors can be heard to say, in defense of an action by the injured party,- that .the other negligent party had the last clear chance to avoid it. If both contributed to the ultimate result, both would be liable to the third party. Shield v. F. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080. In order, therefore, for defendant to defeat the action by plaintiff in this case, it is necessary that defendant show either that its motorman was not at fault at all and did not contribute to the accident, or that, after the dangerous situation had come into existence and .after there was no longer an opportunity for the motorman to avoid it, the deceased Cazeaux could have done so by the exercise of due care on his part. We first will consider the question of whether thg motorman was guilty of negligence.

We cannot lose sight of the fact that the leading car, the Ford coupe, was. brought to a stop without collision with the street car. If it had crashed into the street car, or if the truck following the coupe had crashed into it, as a result of the necessity of coming to a sudden stop, and if that necessity had been caused by the carelessness of the motorman in running his car across the thoroughfare in the face of approaching traffic, then it would be reasonable to assume that the motorman’s negligence was the cause of the collision. But here we find that the Ford at the head of the line of traffic stopped. The truck followiñg did not crash into it, but succeeded in passing around it. It did not continue on its. course down Broad street and did not crash into the street car from that direction, but turned to its right, proceeded across the remaining width of Broad street, and did not strike the street car until it had traveled some 25 or 30 feet more than the Ford traveled. The motorman, even if he did not display due regard for the rights of the Ford, was certainly justified in assuming that, as the Ford was. able to stop, the vehicles following could do so, since they had considerably more available space than had the Ford. He could not be charged with knowledge of the defective condition of the brakes of the truck. He was justified in. assuming that those brakes were in reasonably good condition, and it is very evident that, had the brakes been in good condition, the driver of the truck would have stopped it and would not have found 'it necessary to turn into St. Peter street. The motorman, ‘then, did not, by continuing across the street, create or contribute to the danger of a collision with the truck, which danger was caused, as we have said, solely by the negligent operation and defective condition of the truck.

However, even though the danger came into existence solely as the result of the negligence of some one else, still the defendant company would be liable for the resulting damage, if, after the danger was imminent and apparent, the motorman still had an opportunity to prevent the fatal result, for it is the duty of an employee toward a prospective patron of his employer to do all that is reasonably possible to assist in extricating the patron from danger, even though the danger may not have been created by the employee. Grennon v. N. O. Public Service, Inc., 10 La. App. 641, 120 So. 801.

But the evidence here shows that when the truck, going at a rather high speed, turned to its right in an effort to pass alongside the slow moving car, the front end of the car had already entered St. Peter street, so that the truck must have approached the street car to some extent from its rear, or, at least, from a position which would have prevented the motorman seeing it, unless he was facing almost towards the rear of the car, as there was no reason for him to do, since, while it is true that a motorman must see such occurrences as take place either in front of the car or within a reasonable distance away from the track (Payette v. N. O. Public Service, Inc., 10 La. App. 300, 120 So. 483), surely he need not look to his rear to see that no fast moving vehicle coming from that direction crashes into his. ear.

That the truck approached the street car more or less from its rear and after it had almost completed the turn is also shown by the testimony of the motorman, who states that, when he first noticed; the truck, the front end of the street car “was about two feet past the gutter of the river side” of Broad street and the truck was. “about 20 feet from the intersection.”

There is no doubt at, all that the street car stopped almost immediately and that it did not strike -the deceased. Therefore, when it became apparent that the truck was unable to be stopped, the front end of the street car was already practically abreast of deceased, and it stopped immediately thereafter. Nothing the motorman could have done would have been effective in preventing the tragedy which followed.

Since we find that the motorman was not at fault either in creating or contributing to the dangerous situation, or in failing to avoid the accident after the danger of it became apparent to him, it is, of course, unnecessary that we discuss the question of whether or not the deceased himself was guilty of negligence on his own part.

The judgment appealed from is affirmed.

HIGGINS, J.

(dissenting). My views are not in accord with the majority opinion, and I shall state the case as I see it.

A widow brings this action to recover damages from the defendant for the death of her husband, alleged to have resulted through the negligence of its employee in running him down at the intersection of Broad and St. Peter streets, this city, on August 16, 1926, at 1:30 o’clock p. m.

The petition alleges, in substance, that after the motorman on the street car was. apprised of the deceased’s perilous and dangerous position, and had an opportunity of avoiding the accident by stopping the ear, he negligently and carelessly continued on his course, causing the deceased t$ be knocked down and crushed so badly that he died instantly.

The defenses are that the motorman was free from any fault, and that the deceased was knocked down and killed by the truck of one Albert Bazille, and, in the alternative, a plea of contributory negligence.

There was judgment dismissing plaintiff’s suit, and she has appealed.

The trial court originally dismissed the suit on an exception of no cause of action, and we reversed that judgment and remanded the case for trial on its merits. Cazeaux v. N. O. Public Service, Inc., 14 La. App. 320, 124 So. 685.

The record shows that defendant’s street car was proceeding on Broad street in the direction of Canal street. Broad street has a neutral ground in the center with paved roadways, on each side, traffic moving towards Canal street using the lakeside thoroughfare and vehicles going in the direction of the Industrial Canal using the river side roadway. Broad street intersects St. Peter street at right angles, and the latter street is unpaved. The street car tracks on which the car in question was traveling turned from off the neutral ground of Broad street across the riverside roadway of Broad street into St. Peter street in the direction of the river. The deceased had been waiting on the uptown river sidewalk for the purpose of boarding the street car, add, as it approached the intersection of the two streets, and started to turn into St. Peter street, he walked out on the river roadway of Broad street several feet, preparatory to hoarding the car. As he did so, four automobiles approached from his left rear side on the river side thoroughfare of Broad street, moving toward the Industrial Canal. When, the motorman of the street car saw these automobiles approaching, apparently apprehending that there was danger, he sounded his - gong loudly and rapidly; in fact, to .such an extent that several of the passengers in the street car became alarmed and stood up. The first, automobile was a Ford coupe, and the driver of it brought it to a sudden stop, in Timé to avoid colliding with the street car, but it was necessary, in doing so, to slightly turn it to the right. The driver of the truck, which was a little to the right of the Ford coupe, apparently believing he was unable to stop in time to avoid a collision with the street car, swerved the truck into St. Peter street, toward the river. The speed of the truck at that time was estimated at 20 or 25 miles an hour. The street car was going about five miles an hour. The motorman did not attempt to stop the street car until he was within two feet of the river sidewalk curb. The left front huh cap of the truck struck the right front step of the- street car, both being carried by the momentum into St. Peter street, the truck coming to a stop with the left front wheel jammed against the right front step of the car and its right rear wheel against the sidewalk curb on the river uptown corner. The car stopped with its rear 3 or 4 feet in the river roadway of Broad street. It appears that the truck first struck the deceased and knocked him down and that both vehicles carried his body into St. Peter street. He was removed to the sidewalk and died instantly.

The riverside thoroughfare of Broad' street is about 21 feet wide, and the street car is about 31 feet in length, so that, as the street car turned at the intersection, it blocked the roadway completely.

The evidence' of the plaintiff’s witnesses and defendant’s witnesses is hopelessly in conflict. The two eyewitnesses of the plaintiff testified that the deceased had walked from the sidewalk into the river roadway of Broad street several feet, and that, as the street car and the automobiles and truck came in close proximity, the motorman began shouting: “Hey! Hey!” with the result that the deceased became confused and stepped back into the path of the on-coming truck. They further testified that the body of the deceased was under the front of the street car, facing down, with the left side against the right front wheel, but that it had not passed over the body. It also appears from their testimony that the street car was about approaching the center of the riverside thoroughfare of Broad street at the time the motorman began to shout, and that, as -the street car was going very slowly, he could have stopped the car immediately, but that he did not do so and continued on his course.

The defendant’s witnesses’ version of the accident is that the deceased was standing on the sidewalk waiting for the street car to approach, and, as it started to turn into St. Peter street from Broad, he stepped off the sidewalk and approached the tracks, evidently with the view of hoarding the car; that'he was about adjacent to the sidewalk curb in the mouth of St. Peter street; that the truck approached at a rapid rate of .speed and ran down the deceased, carrying his - body in front of the truck into St. Peter street, that -the left front wheel of the truck struck the right front step and fender of the street car, and that the truck came to rest with its left front wheel on the deceased’s body, with the right rear end jammed against the uptown river sidewalk curb.

The evidence of the defendant’s witnesses is conflicting as to how far the street car had proceeded into the river roadway of Broad street at the time that it was apparent -that the truck was not going to stop. The motorman testified that, when the front part of' the car'was 4 feet past the gutter curb in St. Peter street, he realized that the truck was not going to stop, and that he then applied' his brakes. He is corroborated by some of the defendant’s other eyewitnesses; but Joseph Eads, a bridge tender in the service of the defendant, testified as follows:

“Q. Tell what you saw?
“A. I was sitting in the third seat on the right hand side of the Broad car and when it turned into St. Peter street from Broad, I heard the gong ringing unusually more than it does and the two ladies sitting in front of me jumped up and I sat still and I saw this truck 10 or 12 feet away coming towards the car. If it had come straight it would have hit the car, but it turned into St. Peter street and the truck hit -the car on an angle and the back trucks were against the gutter curb on the river side and his front wheel was against the car fender. When I saw the man the truck was knocking him down and he was fighting off the truck with his right hand and hollering -to beat the band and the car ran up against him and stopped on top of him. That is, the truck. * * *
“Q. When you first saw the truck 10 or 12 feet away, was it going uptown or downtown?
“A. Downtown.
“Q. On what side of Broad street?
“A. The river side.
“Q. Where was the front end of -the ca.r where the conductor stands?
“A. Half way across the driveway. It had not straightened out yet. It had not gotten on straight track yet. *' * *
“A. I heard the gong ringing unusually more than it does and the two ladies sitting in front of me jumped up and I sat still, and I saw this truck 10 or 12 feet away coming toward the car. * * *
“A. The front end of the car where the conductor (motorman) stands was half way across the driveway.”

The defense witness Fury testified as follows :

“Q. Where were you when you saw the accident—between what blocks?
“A. Between St. Peter and Toulouse.
' ‘‘Q. Is Toulouse below or above St. Peter?
“A. Above, towards Canal street.
“Q. What did you first see?
‘‘A. I was driving down Broad stréet and there was a machine in front of me and then there was a truck and another car in front of the truck and as w,e approached Broad and St. Peter, the street car was making the turn and the Ford ahead had to face out St. Peter to let the car go -by, and the truck that was in front of the Ford turned with the car into St. Peter, and I pulled my machine to the gutter and the accident happened and I got out of my machine and' ran to the corner and as I ran to the corner I saw a man laying under the front wheel of this- b:g truck and I helped shove the -truck back and move the man to the sidewalk and he •died two minutes after we moved him to the sidewalk. * * *
“Q. You say the truck passed an automobile?
“A. No, sir, I did not say it passed it. I said -there was an automobile in front of the truck and the automobile in front of the truck had to turn its face to St. Peter street not to strike the car, and this truck that was behind it, not to strike the street car turned into St. Peter street.”

Andrew Jolly, the conductor of the car, corroborates the defense witness, Eads, about the time of the ringing of the bell. He says:

“Q. What first attracted your attention that something unusual was happening?
“A. I heard some people hollering and heard the motorman hitting his gong pretty rapidly and at that time I was punching transfers.
“Q. You heard the gong?
‘‘A. Yes, sir.
“Q. Was ih ringing ordinarily or unusual?
“A. A little faster than usual attracted my attention.
“Q. Do you know whether the motorman was sounding his bell or not sounding it, as he left Broad street and started around this curve?
“A. He was sounding it fast. That is what attracted my attention.”

The testimony of this witness clearly shows negligence on the part of defendant’s motorman. He was bound to have seen the on-coming vehicles, and while it is conceded that a street car’has a right to turn off a neutral ground and cross a roadway of a right of way street, such as Broad street, it must do so, in such a manner as not to endanger the life and property of motorists or pedestrians by obliging motor-is’ts using that highway to make sudden stops and swerve their vehicles in order to avoid collision.

It appears , that it would have been impossible for the street car to have been 4‘ feet past the river sidewalk curb into the mouth of St. Peter street at the time that the truck ran into the car, as stated by the motorman, because both the plaintiff’s and defendant’s witnesses all agree that the left front wheel of the truck came into collision with the right front step of the street car, and that the right rear wheel of the truck was jammed against the uptown river sidewalk ' curb.

Accepting the version of the accident as given by either the plaintiff’s witnesses, or the defendant’s witnesses, or both of them, it seems to me that the deceased had placed himself in a position where both the motorman and the driver of the truck did see, or should have plainly seen, him; that both of these parties unquestionably saw the truck and street car, respectively; that both of them realized, or should have realized that, if they continued on their respective courses, a collision between these vehicles would be 'inevitable; that the deceased was in a position of imminent danger of being seriously injured and probably killed. It was, or should have been apparent to them, that the deceased was in a perilous position, without any opportunity of extricating himself, if both vehicles continued on their courses. The motorman knew that the street car was going directly across the path of the on-coming automobiles and that its length of 31 feet would completely block the 21-foot street. In spite of this fact, with an obvious dangerous situation before him, he elected to continue across. The Ford coupe blocked the truck from turning to the left. The driver of the truck had one of two alternatives—either to crash into the side, of the street car, or turn into St. Peter street toward the river —in order to avoid a collision.

I am of opinion that both the truck driver and the motorman were guilty of carelessness and negligence. It was through their joint and concurrent negligence that the deceased was killed. Conceding that the deceased was guilty of negligence -in going into, the street, I believe that the motormán had the last clear chance of avoiding the accident by stopping his car when he was 10 or 12 feet from the river side sidewalk of Broad street, which would have allowed ample space for the truck to have proceeded on its course. Johnson v. Boyle, 5 La. App. 362; Kelly v. Ludlum, 9 La. App. 57, 118 So. 781; Gouzien v. Feraci, 2 La. App. 115; Martin v. Zatarain, 7 La. App. 629; Greer v. Hamilton, 3 La. App. 120; Parlongue v. Leon, 6 La. App. 18; Thornhill v. Yellow Cab Co. of Monroe, 6 La. App. 787; Green v. Moore, 4 La. App. 495; Kelly v. Schmidt & Zeigler, Ltd., 142 La. 91, 76 So. 250; Hodges v. Davis, 7 La. App. 327; Reed v. Sievers, 146 La. 391, 83 So. 685; Hogan v. N. O. Public Service, Inc., 16 La. App. 637, 131 So. 756; Santos v. Duvic, Court of Appeal, Par. of Orleans, decided March 23, 1931, 133 So. 399, not yet reported (in State reports); Shield v. Johnson & Son Co. et al., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080.

But, says counsel for defendant, the proximate cause of the accident was the defective brakes on the truck, and the motorman had a right to assume that its brakes were good. This contention is accepted as sound by my associates. The evidence does show that the brakes on the truck were defective, and I so find that as a matter of fact; but the defective brakes of the truck, while contributing to the accident, were not the sole proximate cause thereof, because it appears from the record that the motorman was guilty of negligence in driving the street car across the path of the on-coming truck, without any regard for the safety of the deceased, who was plainly in a position of danger. The motorman could have stopped the car after he apprehended the danger and failed to do so.. Under the circumstances I am of ■the opinion that the defendant is liable, and I therefore respeetfully dissent.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,818
    Orleans
    CYRUS v. TUNG
    (May 25, 1931. Opinion and Decree.)
    Paul W. Maloney, of New Orleans,' attorney for plaintiff, appellee.
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit to recover damages for. personal injuries resulting from an automobile accident. The defendant admits that he is liable but contends that the amount of $700 awarded by the lower court is excessive.

The record shows that on July 16, 1929, while plaintiff had her left arm extended out of the window of her parked automobile the defendant’s truck backed into it crushing her arm between the rear of the truck and the side of her car. She was immediately taken to the Charity Hospital where her arm was x-rayed and (placed in splints. Her doctor testified that the x-ray picture showed “a fractured radius, the middle half, and the position was excellent.” The medical testimony also shows that the pain lasted for a few days and that plaintiff was discharged as completely cured on August 21, 1929. Her recovery was uneventful- and without any complications. She was not confined to the bed or house at any time. The sole claim for damages is for pain and suffering.

The court below allowed the sum of $700. We believe that the -sum of $500 would be adequate compensation in. view of the opinions expressed in Gardiner v. DeSalles, 13 La. App. 83, 126 So. 739; Johnson v. L. R. & N. Co., 151 La. 1075, 92 So. 704; T. Q. Greer v. J. F. Hamilton, 3 La. App. 120.

For the reasons assigned it is ordered, adjudged and decreed that the' judgment appealed from is amended by reducing the amount awarded plaintiff to $500, and as thus amended it is affirmed.


text:
    No. 13,656
    Orleans
    ERNESTO v. GUTIERREZ
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    M. T. Woodward, Jr., of New Orleans, attorney for plaintiff, appellee.

      N. A. Armstrong, Jr., of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit to recover property damages alleged to have resulted from an automobile collision on the public highway in St. Bernard parish on May 11, 1929, about 4 o’clock p. m., between the plaintiff’s DeSoto sedan car and the defendant’s Essex automobile.

The petition alleges that the defendant was guilty of negligence in operating his car at an excessive rate of speed and in suddenly swerving from the right to the left-hand side of the road, where he came into collision with the plaintiff’s automobile.

Defendant in his answer avers that he attempted to stop his automobile and due to the fact that the paved highway was slippery from rain and mud, his car skidded from "the • right side to the left side of the road when he attempted to apply his brakes, but that the plaintiff was at a sufficient distance away at the time to have brought his automobile to a stop, after having seen that the defendant’s car was beyond control;- and that, therefore, plaintiff was guilty of contributory negligence.

There was judgment in favor of the plaintiff as ©rayed for and defendant has appealed.

The record shows that the plaintiff was driving on the paved public highway in St. Bernard parish away from the city of New Orleans. The defendant wás proceeding on the same highway towards the city. The road was straight and the accident occurred about 4 o’clock- in the afternoon. It appears that it had been raining and that there was some sand or mud on the paved portion of the highway. The' paved roadway is between 20 and 24 feet wide, with a gravel shoulder on both sides of about four feet. There was a truck about a hundred feet in front of defendant’s car going in the same direction. As the defendant attempted to go around the truck, the plaintiff’s car, which was coming from the opposite direction, was apparently in such close proximity that the defendant deemed it unwise to continue and attempted to apply his brakes, with the result that his car skidded to the left side of the road. The plaintiff,- seeing the danger, .drove his car to the extreme right side of the road, so that its right wheels were 'off the pavement and on the gravel shoulder of the highway. He had almost come to a stop when the front of the defendant’s car struck the left front side of plaintiff’s car, and, from the momentum and force of the impact, turned and also came into collision with the rear end of plaintiff’s car, causing it to turn over on its right side in the ditch adjacent to the road.

We are of the opinion that the plaintiff has shown by a preponderance of the evidence that the defendant was. guilty of negligence.

We do not believe the plea of contributory negligence is well founded, because after carefully reviewing the record we feel that the plaintiff did not have an opportunity to bring his car to a stop after ascertaining that defendant had lost control of his car because • of • skidding.

The evidence clearly establishes that the damages to the plaintiff’s car was $115, which sum he spent to have the car properly repaired.

For the reasons assigned the judgment is affirmed at appellant’s cost.


author: JANVIER, J.

text:
    No. 13,720
    Orleans
    MOAK v. CALLO
    (May 25, 1931. Opinion and Decree.)
    Chas. E. de la Vergne, of New Orleans, attorney for plaintiff, appellant.
    St. Clair Adams, Jr., of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff seeks to recover for personal injuries to himself and for damage caused to the Ford automobile he was driving when it was run into at the corner of. Tulane and Carrollton avenues by a large motor truck operated by defendant. For personal injuries the sum of $9,000 is claimed and for the damage to the automobile the sum of $400 is asked. Plaintiff was not the owner of the automobile but he has purchased from the owner the right to claim damages therefor and all rights of the owner have been assigned to him.

The Ford was on Tulane avenue. The truck was approaching on Carrollton avenue from plaintiff’s left.

The collision took place when the Ford was approximately in the center of the downtown driveway of Carrollton avenue and there is no doubt that the truck struck the Ford.

The evidence shows that the truck had approached at a speed of about 20 miles per hour; that the driver thereof was not looking and that he drove across the street railway tracks without stopping or reducing his speed. In all these respects then he was guilty of negligence, , as we have already held in Rumpf v. Callo et al., 16 La. App. 12, 132 So. 763, which litigation grew out of- this same accident and, in which Rumpf, plaintiff, was a passenger in the car driven by Moak.

However, in spite of the negligence of Callo we are of the opinion that the district judge was correct in his conclusion that plaintiff should not be permitted to recover for the reason that he, himself, was con-tributorily negligent and that but for his negligence there would have been no accident.'

Moak states that he saw the truck approaching the intersection when it was still about a quarter of a block away; that he continued to watch it as it aproached and that it did not slacken its speed as it reached the street car tracks. Under these circumstances, whatever may have been the fault of the other driver, it was Moak’s duty to take proper precautions for his own safety. He could not, merely because he was entitled to the right of way under the traffic ordinance of the city (No. 7490 C. C. S.) drive directly in front of an approaching vehicle and then be permitted to recover for injuries sustained.

Furthermore, it seems reasonably certain that he was aware of the fact that the driver of the truck was unmindful of the approach of the Ford. In his testimony given on the witness stand Moak states that he did not know which way the other driver was looking but, .in a statement made shortly after the accident, he had previously said, “I could see the truck driver looking in the other direction.” Whether he really saw the truck driver or not is of no great importance because from his own statement and from the testimony of his witnesses it appears to have been quite apparent that the truck driver was oblivious of the danger .and had no intention of stopping. Therefore, Moak should, himself, have stopped if necessary to avoid a collision. His own negligence prevents recovery.

It is evident that only questions of fact are involved and it is equally apparent that the trial judge was not manifestly in error when, in his reasons for judgment, he said:

“Under the circumstances the Court finds Moak to blame in part for the accident.”

The judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,745
    Orleans
    POLLY SHOPPE, INC., v. BLAISE
    (May 11, 1931. Opinion and Decree.)
    Sanders, Baldwin, Viosca & Haspel, of New Orleans, attorneys for' plaintiff, appellee.
    Rosen, Kammer, Wolff & Farrar, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff alleges that it stored a delivery automobile with the defendant, the operator of a storage garage, and paid a monthly charge therefor; that it' instructed' the defendant’s employees not to permit the car to be taken out of the garage at night without specific instructions; that on Saturday, June 14, 1930, petitioner’s colored driver, Mathews Curtis, brought the delivery truck to defendant’s garage at .6:45 p. m., and that, on the same night and contrary to plaintiff’s instructions, the car was delivered to Curtis for his -personal pleasure at about 10 p. m.; that after becoming intoxicated Curtis wrecked the car at about ,4 a. m. on Sunday, June 15th, causing damage to the extent of $150, for which this suit was filed.

Defendant admitted that the car had been placed in its garage as s+ated in the petition and that it had been removed by Curtis and damaged, but denied receiving the instructions which plaintiff claims to have given him.

There was judgment below 'in favor of plaintiff and defendant has appealed.

On the question of fact as to whether or not the instructions were given concerning the delivery of the car, we find, without discussing the evidence in ■ detail, that the car was delivered to the negro chauffeur contrary' to the instructions which plaintiff had given defendant’s employees in charge of the garage.

The further contention of defendant is that this is a' suit for an alleged breach of contract and that under article 193'4 R. C. C. where the object of a contract is anything but £h® payment of money, the damages due to the creditor are the amount of loss which he has sustained and that where no fraud or bad faith is involved such liability can only be for such damages as were contemplated or may be reasonably supposed to have entered into the contemplation of the parties :at. the time of the contract and, that consequently, no recovery can be had in this case because the .wrecking of the'car could ¡jiot reasonably be contemplated as a result of the- breach, of the contract.

Plaintiff contends that the case is controlled by the law o.f bailment and that the misdelivery of the automobile amounted to nondelivery or conversion, citing 6 Corpus Juris, page 1143; Kowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346; Mayer v. Brensinger, 180 Ill. 110, 54 N. E. 159, 72 Am. St. Rep. 196; Gulf & Ship Island R. R. Co. v. Sutter Motor Company, 12 La. App. 495, 126 So. 458; Weis v. Pan-American Petroleum Corporation, 12 La. App. 661, 126 So. 90.

We have held. that , a keeper of a storage garage is a bailee for. hire and responsible for damage to an automobile left with him in storage when occasioned by his negligence. Gulf & Ship Island R. R. Co. v. Sutter Motor Co., supra, and Weis v. Pan-American Petroleum Corporation, supra. The car involved here was commonly used in the. daytime for delivering merchandise sold by plaintiff, and stored at night. Except on rare occasions when specific instructions to that effect were invariably given, it was not used at night. When defendant permitted plaintiff’s negro chauffeur at 10 o’clock-on Saturday night to remove the car, without special authority, he was guilty of negligence and breached his contract of bailment which required him to keep and return the automobile to its owner. He must be held responsible for his failure to comply with his obligation.

It is admitted that plaintiff suffered the amount of damages sued for.

For the reasons herein assigned the judgment appeáled from is affirmed.


text:
    No. 13,600
    Orleans
    WOODWARD v. ROYAL CARPET CLEANING CO.
    (May 11, 1931. Opinion and Decree.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee.
    Harold J. Rayl, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

During the early part of June, 1928, plaintiff’s wife delivered to de,fendants two rugs, with instructions to clean them and store them, until needed in the fall. In .October of that year they were ordered returned, and, upon being inspected after they were returned, were found' to be almost, if not quite, worthless because of a large defect measuring from six to twelve inches in diameter in one and on account of the numerous small hole¡3 or defects in the other.

In his petition plaintiff claimed $562 as the value of the rugs. The district court rendered judgment in his favor for $505.08. the difference between that sum and the amount claimed ' apparently representing the estimate of His Honor below as to the depreciation in value resulting from the fact that the rugs, prior to the damage, had been in use almost two years, and that, therefore, their destruction did not entitle plaintiff to recover the full original value.

Defendants have appealed and contend that the judgment is erroneous for several reasons:

First, that the rugs were damaged prior to delivery to them .for cleaning and that, therefore, the burden rested on plaintiff to show that additional damage was sustained while they were in defendants’ possession.

Second, that if the rugs sustained damage while in defendants’ possession, such damage resulted from the depredation of moths, and that, since defendants took all precautions which human ingenuity have so far devised for guarding against moths, if, nevertheless, such damage occurred, evidently it could not be guarded against, and is thus the result of overpowering or superior force.

Third, that when the rugs were accepted by defendants for cleaning, there was given to plaintiff, through his wife or servant, a document in which it was stipulated that defendants were “not responsible for damage by moths.”

Fourth, that even if defendants are liable, the amount awarded is excessive, in view of the length of time the rugs had been in use and in view of the fact that they have been retained by plaintiff and should not be treated as totally worthless.

Defendants have been engaged in the business of cleaning and storing rugs for nearly thirty years and it is conceded that their officers and employees are experts and are thoroughly familiar with modern methods and have had vast experience in controlling the various entomological pests to which expensive rugs are heir.

It is also conceded that the moths, such as unquestionably attacked the rugs in question and caused the damage of which complaint is made, are slow in development, and that between the time of the laying of the egg in the rug and the time at which the hatched and developed moth commences his depredation, usually about six weeks e’lapse. Defendants contend that when the rugs were received in their cleaning establishment they remained in their uncleaned condition only about ten days and that, since the damage was discovered just before the commencement of the cleaning process and since such damage can be caused only after about six weeks’ infestation by moths, the infestation must have taken place prior to the time the rugs were accepted by defendants.

Plaintiff meets this contention with the testimony of various members of his household "to the effect that when the rugs left his residence they were in perfect condition and he maintains that, by the same process of reasoning as that adopted by defendants, the rugs must have been left by defendants in their uncleaned condition more than ten days, and, in fact, for sufficiently long for the infestation by ■ moths to have taken place and for their development to have sufficiently progressed for them to have committed the damage. In other words, that- the rugs must have remained uncleaned in defendants’ establishment at least six weeks.

Counsel agree that the duty owed by defendants is that of a bailee for hire and that, if it can be shown that there was exercised the care and diligence with regard to the rugs which would have been exhibited by an ordinarily prudent person in the care of his own property, there is no liability. Nicholls v. Roland, 11 Martin (O. S.) 190; Hartford Fire Ins. Co. v. Doll, 5 La. App. 226; Meine v. Mossler Auto Exchange, Inc., 10 La. App. 65, 120 So. 533. In Ruling Case Law, vol. 3, pages 96 and 97, the obligation of the bailee is stated as follows:

“* * * Where the relation of bailor and bailee for hire or mutual benefit subsists, it devolves on the bailee to use ordinary-care and diligence in the safeguarding of the bailor’s property. If it is lost through a failure to observe such duty, he is answerable, but of course he is not responsible for any losses not occasioned by the ordinary negligence of himself or his servants.”

If we were convinced that the rugs lay uncleaned in the defendants’ place of business for only ten days, and if we felt that ten days, is not an unreasonably long time under the customs and necessities of the rug cleaning business, we could not find defendants liable. But there is no doubt that the duty rests upon the bailee to show that he has given to the article left in his possession that degree of care which an ordinarily prudent person would give to his own property, and we feel that the proof tendered by defendants in this regard is deficient.

When the rugs were received by defendants the only evidence as to their condition is that given on behalf of plaintiff and it is to the effect that there was no blemish or defect of any kind in them.

We next find that when the cleaning process was commenced (which defendants say was ten days later, but in which statement we believe defendants are mistaken) the defects were so noticeable that the employee in charge of the cleaning called the condition of the rugs to the attention of two of the so-called officers of defendants.

In view of the testimony of. defendants regarding the rather slow development of moths, we doubt that such a change could have occurred in so short a time as ten days. This impression would yield, of course, to positive proof, but such proof as to the exact time at which the cleaning took place is lacking. Defendants state that the rugs were cleaned in ten days, but they further state that their testimony in this regard results from their custom and ^because all rugs were cleaned in regular order, but, unfortunately, they are unable to produce their office records to show precisely when these particular rugs were placed in the cleaning machine. They kept records which would have shown this conclusively, but in spite of the fact that prior to the end of that year they knew of this claim and must have known of the importance of those records, they are unable to produce them, giving as their reason that they do not retain records after the end of a reasonable time. Then, too, since it was discovered just prior to cleaning that the condition of the rugs was such that to put them through the cleaning machine would, almost certainly make them entirely worthless, it is reasonable to suppose that they would have notified plaintiff, instead of going ahead with the cleaning process.

If the cleaning had commenced within a reasonable time, we cannot but feel that, immediately upon discovering the defect, plaintiff would have been notified and he would have been consulted as to whether to continue the process or not. We cannot escape the view that the failure to notify plaintiff resulted from a consciousness of the fact that the delay which had permitted the moths to infest the rugs, or at least carry to a successful conclusion their previously commenced depredation, was chargeable to defendants’ neglect.

The evidence shows that when rugs are first brought into the establishment for cleaning, they are stacked in piles of about fifty to the pile, so that, in spite of precautions, it is evident that moths which may be in one rug will have, more or less, free access to others in the same pile.

The theoretical observations of defendants that moths were attracted to plaintiff’s rugs by the foreign matter deposited therein in liquid form by an improperly trained canine are interesting, but cannot be seriously considered in view of the positive statement that no such occurrences had taken place.

The special defense that liability for damage by moths has been specifically stipulated against must yield to what we consider sufficient proof that the moth infestation resulted from the failure of defendants to properly and seasonably care for and clean the rugs. Such a stipulation cannot be permitted to have the effect of releasing ' from liability a bailee, whose negligence causes such damage. The purpose of such a stipulation is to relieve him from liability for results set forth if caused by circumstances beyond his reasonable ability to control.

We believe that the allowance made for depreciation resulting from prior use was as nearly accurate as is humanly possible of determination and that on the question of quantum the judgment should not be disturbed.

The judgment appealed from is affirmed at the cost of appellant.


text:
    No. 13,726
    Orleans
    WEIGAND ET UX. v. GENERAL OUTDOOR ADVERTISING CO., INC.
    (May 25, 1931. Opinion and Decree.)

      Frymire & Ramos, Gordon Boswell, of New Orleans, attorneys for plaintiff, appellant, Mr. Weigand.
    Monroe & Lemann, Walter J. Suthon, Jr., of New Orleans, attorneys for • defendant, appellee.
   JANVIER, J.

On February 7, 1928, Mrs. Robert Weigand, while walking across Royal street at the Canal street intersection, was struck on the head by a falling object known as a “light cap,” which fell from the top of an adjacent building admittedly as the result of negligence on the part of defendant’s employees, who were engaged in installing colored “caps” in an advertising sign.

The particular cap which hit Mrs. Weigand weighed four' ounces and had fallen from a height of about 50 feet. Mrs. Weigand claims the sum of $6,000 to compensate her for physical injuries and mental anguish and worry, and Mr. Weigand asks for a judgment for $77.50, which he says is the amount of expense—medical, hospital, et cetera—necessitated by the injuries sustained by Mrs. Weigand. It is conceded that only questions of quantum are involved. The district court rendered judgment in favor of Mr. Weigand in the sum of $77.50, as claimed, and in favor of Mrs. Weigand for $500. From the judgment in favor of Mrs. Weigand for $500 and in favor of Mr. Weigand for $77.50, both Mr. and Mrs. Weigand have appealed, though in oral argument and in brief we are told that Mr. Weigand finds no fault with the judgment in his favor, but that he merely joins Mrs. Weigand in her appeal. In answer to the appeal taken by both parties plaintiff, defendant corporation contends that the judgment in favor of Mr. Weigand should be reduced to $20.-50, which, it is maintained, is. the total . amount of expense to which he was put as a result of the accident in question.

The record shows that all of the items claimed by Mr. Weigand, with the exception of a bill of one of the doctors amounting to $5, have been proven to have been expended, and we are of the opinion that they were all rendered necessary by the accident in question. We find in the record, however, no proof as to the $5 item mentioned, and therefore, small and inconsequential as it is, we are under the neces.sity of reducing the judgment in favor of Mr. Weigand by that amount. Were it not for the fact that Mr. Weigand joined with Mrs. Weigand in the appeal, we would be of the opinion that defendant could not, by answering the appeal of Mrs. Weigand, maintain their rights to object to the judgment in favor of Mr. Weigand, for the claim of a husband, as head and master of the 'community, to recover for damage caused to the community, is separate and distinct from the claim of a wife to recover for her physical injuries, as has. been many times held, notably in Shield v. Johnson & Son Co. et al., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080. The husband here, had he not joined the wife as appellant, would have been, in legal contemplation, a party appellee, and that one appellee cannot, by. answer to an appeal, maintain rights as against another appellee, is well established. Williams et al. v. LeBlanc, 14 La. Ann. 757; Deblanc v. Levasseur, 26 La. Ann. 541. But, since Mr. Weigand did join in the appeal, and since there was. an answer to that appeal, we have no alternative but to reduce the judgment in Mr. Weigand’s favor to $72.50.

We will now consider the question of whether or not a sufficient amount has been awarded Mrs. Weigand. At the time of the injury she was in a pregnant con-dition and had been so for nearly seven months. For a day or so her attending physician feared that there was a possibility that she might suffer a miscarriage, but his fears in this regard proved to be groundless and some two months or so later she gave birth to a normal child. Some time after the accident she continued to have headaches and pains in her back and came to the conclusion, that, possibly, she had sustained a fracture of the skull. However, X-ray photographs were taken and these showed that her fears in this regard were baseless. Later still she suffered from headaches and she visited an oceulist, who treated her eyes, with the result that after some time the headaches disappeared. We. find it very difficult to determine just what damage has been sustained in a situation of this kind, because, although for some time Mrs, Weigand undoubtedly feared that her skull was . fractured and also that she would sustain a miscarriage, neither of these fears was realized, and tne actual injuries consisted solely of nervous shock, mental anguish for a short time, and headaches. We find that in a number of cases the Supreme Court of this state and this court have considered injuries resulting in miscarriages, and in those cases amounts ranging from one to two thousand dollars have been allowed. Here, ' however, the apprehended miscarriage, as we have said, did not take place. In a case involving injuries very similar (Fincher v. Meyer-Greenwald Construction Co., 2 La. App. 458) the Court of Appeal for the Second Circuit awarded the sum of $600, and in that case it appears to us .that the sufferings of the plaintiff were at least as great as those of Mrs. Weigand. In view of the fact that there can be no mechanical or arithmetical accuracy in the awarding of damages, we believe it inadvisable to interfere With the finding of the trial court in a matter of this kind, where that finding is not manifestly erroneous. We feel, however, that in this case all costs of court should be borne by defendant.

The judgment of the court below, in so far as. it awards damages to Robert Weigand, is amended by reduction of the amount thereof to $72.50, and, as amended, it is affirmed. Defendant to pay all costs in both courts.


text:
    No. 13,689
    Orleans
    ANDERSON v. D’INGIANNI
    (April 27, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)

      Judgment affirmed.
    E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for plaintiff, appellee.
    Daly & Hamlin," of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff alleges that on the 16th day of November, 1929, she entered the grocery- store of the defendant; that she was attacked by a dog belonging to defendant and bitten just above her right ankle, four of the dog’s teeth penetrating her flesh; that defendant was aware of the vicious character of .the dog because, to his knowledge, it had bitten two other persons on previous occasions; that as- a result of her injuries she was incapacitated for a period of four weeks and lost $40 in wages during that period; that she was treated at •the Charity Hospital and suffered considerable pain, for which she asks $1,500.

Defendant answered, admitting the ownership of the dog, but denying knowledge of his. vicious character, and averring that the plaintiff’s injury was due to her imprudence in disregarding a warning sign reading “keep out” and in going behind defendant’s counter toward a cash register, to which he had tied his dog, whereupon -the dog, being excited by her proximity, bit her.

There was judgment below in plaintiff’s favor in the sum of $760, and defendant has appealed.

The liability of owners of dogs and other domestic animals to persons who may be injured by coming in contact with them has been frequently discussed by this court. Perez-Sandi v. Berges, 12 La. App. 191, 125 So. 185; White v. Sens, 13 La. App. 343, 127 So. 413; Peyronnin v. Riley, 15 La. App. 393, 132 So. 235. Generally speaking, the bite and the ownership • of the dog being conceded, there must be a showing of knowledge on the part of the defendant of the yicious propensity of the dog by reason of his having bitten other persons, or otherwise, before there can be any recovery. There is no difference of opinion between counsel in this case concerning the law applicable.

The evidence administered on behalf of plaintiff is to the effect that on 'at least two occasions defendant’s dog had bitten other persons and that that fact was known to him; that the dog was roaming at large in defendant’s store and bit plaintiff as she entered for the purpose of making a purchase.

On the other hand, defendant has testified that the dog was chained behind the counter for the purpose of protecting his cash register, and that- .the plaintiff was bitten as she walked behind the counter and neared the cash register. Several other witnesses, who were in the habit of calling upon defendant for the purpose of selling him groceries, testified that they had seen the dog chained in the manner described by defendant and that they knew of no' instance where he had bitten any one.

The trial judge was of the opinion that ■the evidence preponderated in favor of the plaintiff, and. rendered judgment accordingly. We cannot say that in doing so he was clearly in error. On the contrary, viewing the evidence in the record in cold type, without the advantage of seeing and hearing the witnesses, which the judge enjoyed below, our opinion is that the issue of fact has been correctly determined.

Nor do we believe that the quantum of damages is excessive. Dr. Carter, who treated plaintiff,'testified that she suffered no ordinary dog bite, but a severe one, with a deep laceration above1 the instep of the right leg, which became infected and caused the leg to swell. She was under his care for- four or five months, during which time he stated that she suffered a great deal of pain. Defendant complains of a ruling of the trial court excluding certain testimony, the effect of which would have been to prove that plaintiff suffered from syphillis, or “lutic ulcer,” which greatly prolonged her recovery. We believe the trial court was correct in excluding this testimony upon the ground given by him, to the effect that no such defense was made in the answer, and express no opinion as to the effect of the evidence if it had been properly before us.

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


text:
    No. 13,584
    Orleans
    CREEVY v. D. H. HOLMES CO., LTD.
    (April 27, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)

      Arthur J. Peters, of New Orleans, attorney for plaintiff, appellant.
    Wm. H. Talbot, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Recovery is sought by plaintiff to compensate him for injuries sustained, medical bills incurred, and loss of earnings, which resulted .when an automobile truck, owned by defendant and operated by one of its employees admittedly acting within the scope of his employment, struck plaintiff while he was crossing St. Joseph street in this city.

Plaintiff, a man sixty-two years of age, employed in the type-setting department of the Daily States, a New Orleans newspaper, at about 5:30 o’clock in the late afternoon was walking up the river side of Camp street on his way to his place of employment, situated on the upper river side corner of Camp and St. Joseph streets.

He states that when he reached the lower river side corner of that intersection he saw that two street cars, followed by several auto trucks, were proceeding down Camp street; that he saw no vehicles on St. Joseph street which would prevent his crossing that street; that he therefore proceeded on his way from the lower to the upper side of St. Joseph street and was just in the act of stepping upon the side-walk on the upper side, when he was struck by the truck in question, which had been following the street cars down Camp street, but which, upon reaching the intersection, had turned to the right ar.ound the corner and so close to the curb that it was impossible for him (plaintiff) to complete the crossing; that' he caught hold of the front end of the truck and held on until it was brought to a stop, after drawing him a few feet.

Plaintiff charges that the driver of the truck was negligent in not according to him the right of way to which he was entitled by reason .of the fact that he had practically crossed the street, . and that the said driver was also at fault in that he made the turn without sounding his horn and without giving any warning or signal of his intention to do so.

The truck driver states' that he had turned to the right into St. Joseph street not near the right-hand curb, as alleged by plaintiff, but almost in the middle of the street; that plaintiff, who had been standing on the sidewalk on the. lower side of the street, waited for the passage of another truck going in the opposite direction, and that, just as .the other truck passed, plaintiff ran from behind that other truck directly into the left front fender of the truck of defendant.

The district judge found .that the truck had' turned to the. right very near to the curb and had struck plaintiff just as he was about to step upon the sidewalk, but rendered judgment dismissing plaintiff’s suit for the reason, as given by him, that plaintiff was guilty of negligence on his own part in not being more vigilant and ' in not more quickly negotiating the few remaining feet separating him from the zone of safety, the sidewalk.

We experience no difficulty in reaching ■the conclusion that the truck was, as our brother below found, very near to the sidewalk, and that plaintiff had almost reached the curb when he was struck, but we are unable to concur in the view that the injured party was himself negligent in not seeing that the truck Was about to strike him and in not accelerating his speed.

The city traffic ordinance, known as No. 7490 C. C. S., includes provisions governing the relative rights of autos and pedestrians at crossings and intersections. That ordinance has been introduced in evidence, and we find that, by virtue of paragraph 2 of article 7 of section 1 thereof, “pedestrians shall have right of way over vehicles, provided pedestrians shall give warning of their intention to cross the street- by holding up their hand in a manner to be plainly seen.”

It is also provided that “this shall not entitle the pedestrian to enter or cross the intersection regardless of approaching traffic, but shall be interpreted to require vehicles to change their course, slow down, or stop, to permit pedestrians to negotiate the crossing with safety.”

We are unable to determine whether plaintiff, before'entering the street at the lower curb thereof, had held up his hand, as set forth in the ordinance, but we' do not believe -that, if he failed to do so, he therefore deprived himself of the right of way to continue across the street, after he had negotiated practically the entire width thereof. The street is more than forty feet wide, and a pedestrian who has crossed some thirty-five feet of such a street cannot be deprived of the right to continue, because, before he entered the street some thirty-five feet back, he failed to hold up his hand to give notice of his intention to cross, which intention was even better brought to the notice of motorists by the actual crossing and oy the actual traversing of thirty or thirty-five feet than it could have been by any manual signal. The pedestrian had the right to continue on his Way. He was sixty-two years, of age, and consequently, was no longer possessed of the agility of a man of lesser years. He had no reason to anticipate that the -truck would turn from its course, or that, if it should so turn, its driver would not do as the ordinance requires. He was justified in assuming that, if it did turn, the driver would change his course, slow down, or stop, in order to avoid striking a pedestrian already beyond the center of the roadway.

“Drivers of motor vehicles owe children, ' aged, infirm and drunken pedestrians, especial care, particularly at intersections, where pedestrians, observing police regulations, have the right of way.” Syllabus, Johnson v. Boyle, 5 La. App. 362.

Plaintiff, then, was placed in a dangerous situation, not by his negligence, but by the carelessness of defendant’s driver. He, of course, was bound, nevertheless, to exercise all due care for his own safety, but to assume that he could have moved more swiftly and did not do so is to assume that he deliberately caused himself to be injured. We cannot so assume. Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513. We, therefore, feel that the negligence of the truck driver caused the accident', -and that the defendant is liable.

Plaintiff’s injuries consisted of a “luxation of the right knee, which was very much enlarged and painful, and he had some brush burns on the right knee joint and there was also loss of motion and it was painful.” With reference to the meaning of the word “luxation,” plaintiff’s physician said:

“If we say luxation we mean it is over an extensive area and a sub-luxatioh is not as large and a contusion is still smaller.”

When asked whether the injury to the knee joint would prove permanent, the doctor said:

“That is a question I would not like to answer. I will make my answer reservedly. I think any injury to a joint in a man past the meridian of life, it neVer recovers to the extent it should, especially the knee ’joint, because it is. in a ball and socket joint. The motions of the knee joint is dependent on the tissues that support that joint.”

Plaintiff claims to have been unable to return to work for about four months, but the fact that he did return and has apparently been doing the same arduous work since leads to the conclusion .that the injury did not prove permanent. ' During the disability he was deprived of his earning capacity for 112 working days. Prior thereto he earned1 $6 per day. The bill of his doctor amounted to $95, an’d for medicine he expended $1.20. His total expenses and financial losses were shown to be $768.20. We are of the opinion that a further allowance of $750 would be adequate, in view of former awards for similar injuries, and we have therefore concluded to render a decree in his favor in the sum of $1,518.20*.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of William A. Creevy, plaintiff, and against D. H. Holmes Company, Limited, defendant, in the full sum of $1,518.20, with legal interest from judicial demand and for all costs of court.


author: McGREGOR, J. McGREGOR, J.

text:
    No. 3790
    Second Circuit
    GRONER v. CAVENDER ET AL.
    (February 26, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)

      Crain, Jack son & Johnston, of Shreveport, attorneys for plaintiff, appellee.
    Cook & Cook and Thatcher, Porteous, Browne & Myers, of Shreveport, attorneys for defendants, appellants.
   McGREGOR, J.

The plaintiff brings this suit in the form of a concursus proceeding under the provisions of Act No. 139 of 1922. There was a written contract between Morris Groner, plaintiff, and R. J. Cavender, defendant, dated May 18, 1926, wherein the defendant contracted to remodel certain premises for the plaintiff at 444 Stoner avenue in the city of Shreveport, for the contract price of $4,679.56. This contract was based on written plans and specifications, both of which were very loosely drawn. In the specifications there ' is indicated the following stipulations:

“* * * Should alterations be suggest- ' ed or deviations from plans or specifications arise same shall be agreed to by all parties concerned and either credits or additional charges ‘as the case may be’ ¡ entered • or attached to these specifica- ' tions.” . ;

Upon the interpretation of this clause and the law applicable to such cases de- ; pend in a large measure the issues in- ; volved in this' case. In his petition the • plaintiff alleged that he had paid to the 'defendant the sum of $4,600 on the contract price; that the work had been com- ■ pleted, and that he had executed an acceptance of the work and caused it .to be recorded in the mortgage record in the form and manner provided by law; that there was a balance of $79.56 due the defendant contractor on the contract price; and that there was an additional sum of $155.65 due him for extra work and material performed upon and furnished on the said job which was not included in the written contract, thus making a total of $235.21 due by the plaintiff to the defendant on account of the said job of remodeling the said premises. Plaintiff further alleged that there had been recorded a large number of liens on the said job amounting to the sum of $2,117.29 said to be due to the several lienors for materials ■ furnished to the defendant and used by him in the said remodeling job. It is still further alleged that the defendant himself had filed a lien on the job for the sum of $892,12 for labor and material alleged to have been performed and furnished by him as extras over and beyond 'that called for and provided for in the written contract. 'Plaintiff took $50 of the $235.21 adñiitted to be due by him, and used it to file this suit, and deposited the balance, or $185.21, in the court in accordance with the statute. It is further alleged that the defendant R. J. 'Cavender and the Indemnity 'Insurance Company of North America,'as surety, executed and delivered a bond in the principal- sum of _$4,679.56, and that this bond, together with the 'contract, had been duly filed and recorded in the mortgage records of Caddo parish as required by law. The said surety company was made a party defendant in the case. The defendants answered, admitting the contract and the liens filed, but alleged that the balance due the contractor by the plaintiff, was the sum of $892.12, including the sum of $235.21 admitted by the plaintiff in his petition and deposited by him in the court. The sum of $656.21 is therefore claimed by the defendant as plaintiff in reconventional demand for extra labor and material performed and furnished on the said remodeling job.

There was judgment in the lower court in favor of the plaintiff against the defendant contractor and all the lienholders and canceling and erasing all of the liens filed against the plaintiff’s property on account of said contract and bond, and particularly the special lien filed by the defendant contractor for the extra labor and material claimed to have been furnished by him. There was also judgment in favor of plaintiff in solido against the defendant contractor and the Indemnity Insurance Company of North America and the fund deposited by the plaintiff for the sum of $250 attorneys’ fees for the concursus proceedings and for all costs of the suit. There was also judgment in favor of the several lienholders against the contractor and the surety company for the respective sums shown to have been due them on the trial of the case. The reconventional demand of the defendant contractor was rejected, and judgment for $2,355.29 was granted in favor of the Indemnity Insurance Company of North America against the defendant contractor. The contractor and the surety company have appealed from that part of the judgment rejecting the contractor’s reconventional demand and canceling the lien filed and recorded by him.

As stated, the contractor’s reconventional demand is for the sum of $892.12. A part of this is admitted by the plaintiff in his petition—$79.56 balance due ’ on 'the contract price and $155.65 for extra labor and material furnished on the job, so that the amount in dispute is the sum of $656.21.

Because of- the clause in the specification reading: “* *■ * Should alterations be suggested or deviations from plans • or specifications- arise same shall be agreed to by all parties concerned and either credits or additional charges ‘as the case may be’ entered or attached to these specifications,” the plaintiff contends that none of the amounts which are claimed by the contractor should be allowed, as none of the extras in the form of labor and material were agreed upon in advance by the parties in writing, and that none of them were indicated and provided for in the plans and specifications. To support their position,- counsel for plaintiff cite article 2276 of the Revised Civil Code, but.this article must be read 'in connection with article 2275, and, when this ' is done, we find that the two articles deal primarily with the transfer of immovables, so that that article does not' govern the case at bar. Articles 2763 and 2764 evidently govern here. Those articles specially provide that, even though a contract is reduced to writing by the owner and the contractor, and the building is being -erected in accordance with the written plans and specifications, the contractor can claim pay for extra labor and material if he can prove that the extra labor and material were performed and furnished in compliance with the “wishes of the owner,” and “in a ease where the alteration or increase is so great, that it can not be supposed to have been made without the knowledge of the owner, and also where the alteration or increase was necessary and has not been foreseen.” - Under those two' articles of the Code, it would seem to be clear that, if the defendant contractor can prove that the various items claimed by him in his reconventional demand complied “with the wishes” of the plaintiff, or that they were so great or patent “that it cannot -be supposed to have been made without the knowledge of the owner,” he should recover. In the case of Wellman v. Smith, et al., 114 La. 228, 38 So. 151, 152, the Supreme Court considered this question, and in the course of its opinion said:

“The -contract provided that no change in the plan, and extra work in that connection, would be paid for unless the work was done in accordance with written order.
“The owner cites Maas v. Succession of Hernandez, 48 La. Ann. 264, 19 So. 269, and Monarch & Kaiser v. Board, 49 La. Ann. 991, 22 So. 259, in support that $200 for extra work should not be allowed.
“In the cases cited, the testimony did not prove that the owner knew anything about the extra work. It follows that he had not assented to- it. Here the work was done. The owner was frequently about the ■building, and saw the improvements as they were made. It is not shown that the least objection was ever made, nor that they have not received full consideration.
“Under the circumstances, the claim is due and should be paid.”

The two articles of the Revised Civil Code referred to and the opinion of the court in the Wellman v. Smith case are based on the principle that parties to a written contract are not prevented from subsequently entering into a verbal agreement abrogating the written contract. The case cited is also supported by the principle that no one can be permitted to enrich himself at the expense of another. The Court of Appeal, First Circuit, passed on a similar case, Stanley A. Harvey v. Louis Mouncou, 3 La. App. 231. The syllabus in that case, which was written by the court, is as follows, and we think expresses correctly the law to be applied in the case under consideration:

“A contractor may recover an increased price whenever the increase in the building is so great that it could not have escaped the knowledge of the owner, or whenever it was necessary and had not been foreseen.
“Under the conditions mentioned in C. C. 2764 parol evidence is admissible to prove a verbal agreement to alter the original written building contract, even when the contract contains a stipulation that no claim shall be made for extra work unless the same was ordered in writing.
“In a suit for damages against a contractor for failure to complete and deliver a building at the time agreed upon, it is not enough for the owner to show the rental value of the property; he must prove besides, that he could have procured a tenant if he had been put in possession of the property at the time stipulated.
“Judgment amended in favor of plaintiff.”

In this case there is found a very able discussion of the parol evidence rule, and it is illustrated by several citations showing how the rule is applied in building contracts. Those citations are:

“We find the principle applied in building contracts and we select the following authorities from other states and from the federal courts:
“ Where a contract for alteration and repair of a vessel provided that the contractor should make no claim for extra work unless he could show a written order for the work and written approval of the designers and the price, and that no verbal agreement and order of any of the parties or their agents should be claimed by either party to modify the clause, and no waiver thereof not in writing and signed by the parties should have any force, allowances should not be made for extra work based upon verbal agreements unless on proof so clear and convincing as to leave no doubt as to the intention of the parties to waive the contract provision and substitute an oral agreement therefor.’
“James Reilly Repair and Supply Co. v. Smith [C. C. A.] 177 F. 168.
“In Jefferson Hotel Co. v. Brumbaugh [C. C. A.] 158 F. 867, it was held that where the owner retained possession and the enjoyment without protest o.f extras orally ordered of the contractor by the superintendent, the owner was estopped to deny the general authority of the superintendent to give the order, and the contract provision that all extras should be ordered in writing was waived.
“In Theis v. Svoboda, 166 Ill. App. 20, the court held that notwithstanding a building contract provides that all extras must be ordered in writing, the owner may waive such provision, and if he orders extras verbally he is liable therefor.
“In McGowan v. Gate City Malt Co. [89 Neb. 10] 130 N. W. 965, it was decided that a subcontractor could recover for extra work verbally ordered notwithstanding a provision of the sub-contract to the effect that ‘no work done or material furnished by the sub-contractor should be considered as extra or paid for' as such unless a separate agreement in writing therefor should be made before .the commencement of such work or furnishing of such material.’
“ ‘A written contract to repair a building according to specifications may be modified by a subsequent parol contract for extra work.’ Derrico v. Muller (Sup.) 142 N. Y. S. 479.
“In Pierce v. Powers, 180 Ill. App. 687, it was held that the parties may waive the conditions in a contract under seal by parol and when so waived the conditions are abrogated.
“In Becker v. Becker [250 Ill. 117], 95 N. E. 70 [Ann. Cas. 1912B, 275], it was held that: ‘A waiver of a covenant by the party for whose benefit it is inserted into a written instrument may be made by parol and such waiver is held not to be a modification or change in the terms of the original agreement.”

In a recent building contract case in the Orleans Court of Appeal, H. P. Hinricks v. Edmon Realty & Investment Co. [No. 7254, see Louisiana and Southern Digest], the plaintiff claimed pay for seven items of extras rangirig in amounts from $2.50 to $44.10, and amounting in the aggregate to $63.25. There was judgment in the lower court rejecting the demand of the plain tiff for the extras. In a well-considered opinion reversing the lower court on this point, the court said:

“Articles 2763 and 2764 of the Civil Code provide that an undertaker, working under a plot agreed on, cannot claim an increase of the price agreed on, on the plea that the original plot has been changed; unless he can prove that the changes have been made in compliance with the wishes of the owner. But an exception is made to this rule, whenever the chante is so great that it could not-have escaped the knowledge of the owner, or whenever it was necessary and had not been foreseen, 5 M. 386; 2 La. 409; 4 La. 101; 5 R. 180, 181; 9 R. 404; 23 A. 709; 4 R. 399; 12 A. 621.
“It has been decided that parol evidence is admissible to prove a verbal agreement to alter the original written contract, 2 A. 490; 4 La. 30; 10 R. 95; 1 H. D. p. 540 G; 101 L. D. p. 252; 23 A. 517; 36 A. 121; 133 La. 1057 (63 So. 517); 101 U. S. 522; 2 Evans Pothier 158.
“But it was also decided that when the building contract provided that ‘no extra work was to be admitted unless executed under written authority’ no parol testimony could be admitted for extra work. 27 A. 116; 49 A. 991 (22 So. 259); 51 A. 285 (289), 25 So. 88.
“But the strictness of the above decisions was modified in Wellman v. Smith, 114 La. 230-231 (38 So. 151) so as to adapt itself to the letter and spirit of Article 2764. We are bound to follow it and to hold that notwithstanding a clause in a building contract providing that no claim for extra work shall be made or paid unless the extra work was ordered in writing, an undertaker may prove by parol and will recover for extra work, when it is shown that the owner was aware of the work and made no objections to it, however dangerous such a doctrine might prove to owners, who see the work being done, but have no idea that it is extra, or will be charged for, over and above the contract price.
“The plaintiff has proved each and every item of his claim for extras on the two contracts and the knowledge of the defendant.”

Applying the same principles to the case at bar, we find that the contractor is entitled to a judgment for certain items of his reconventional demand.

It would be useless to. discuss the testimony brought out on- each item listed. The plans and specifications are very vague and indefinite. At times it is difficult to say whether certain items claimed as extras were indicated in, and covered by, the plans and specifications. Wherever there is doubt, we have resolved it in favor of the owner of the building, but, wherever it is proved that, although an item was not provided for in the plans and specifications, it was furnished “in compliance with the wishes of the owner,” or that it was of such a nature that it could not “be supposed to -have been made without the knowledge of the owner,” we have allowed it. We find that the following items should be allowed:

(1) Front sidewalk __............._________$ 16.75
(2) Brick walk .................................... 17.00
(3) Yard fences ....... 16.00
(4) Flower boxes .............. 7.50
(5) Extra plumbing ____________________________ 88.93
(6) Hanging swing ........................... 1.00
(7) Ceiling fans ........—---------------------- 4.00
(8) Stove hoods & vents ................ 39.50
(9) 'Boiler closet ________________________________ 30.50
(10) Wall paper ..... 20.15
(11) Kitchen cabinets .......................... 161.00
(12) Kitchen pantry ............................' 86.40
(13) Bal. on contract __________________________ 79.56
Total _____________________________________________:__________$568.29

Of this amount $235.21 was admitted by the plaintiff in his petition and was deposited by him in open court in this concursus proceeding provided by the statute.

When judgment was rendered herein, the lower court decreed that all liens resulting •from the recordation of the bond and contract, and particularly the lien filed by the defendant contractor for the balance for which he demands judgment herein on his reconventional demand," should be canceled and- erased from the record. . Counsel for contractor ask us specially -to reverse this portion of the judgment and to reinstate the contractor’s lien for the extras claimed by him. It is evident that, if there were no contract price and the contractor were claiming these extras as a balance due on the entire costs of the job proved on a quantum meruit, he would have a lien for the balance due. If there were no balance due other than what is admitted by the owner, then, upon depositing' that sum in court in the concursus proceedings, the owner would have a right to have the contractor’s lien canceled. In the beginning the contractor, the laborers, and the furnishers of material all had a lien on this property ! created by the recordation of the bond and the contract. The amounts of these liens are determined at the completion of the work. If there are no extras, and the owner - pays nothing during the course of the work, and the contractor pays for all the. labor and ' material, he would have a lien for the entire contract price, resulting solely from the recordation of the contract and bond. If, at the completion of the work in such a case, there was a valid claim for extras, all of which were ©aid for by the contractor, then, in order to preserve his lien for this added amount, he would have to file his lien just as any laborer or furnisher of material would do. The owner cannot have the contractor’s lien for extras canceled by depositing just the unpaid portion of the .contract price. To hold otherwise would be very unjust, and would work a great hardship upon the contractor. We do not think any one would contend that a contractor does not have a lien on the building and premises under the law. The liens for the balances due to the laborers and furnishers of materials are canceled by judgment of the court in concursus proceedings even before they are paid by defendant, only because under the statute the contractor provides a. surety bond which takes the place of the lien on the property. The contractor has no bond to guarantee his money, and he must (preserve his lien on the property until it is paid. Act No. 139 of 1922 specially provided for this lien, and specially excepts it in all reference to cancellation of liens. The only way to cancel it is to pay it off. In concursus proceedings, the owner usually deposits the total amount due the contractor under the terms of the contract, and, by virtue of paying this sum into court, he naturally is entitled to have the contractor’s lien canceled along with liens of all laborers and furnishers of material. But, if the contractor has furnished extras which are in controversy, and has filed his lien for same in proper form, the depositing of the balance due under the terms of the contract will not justify a cancellation of the contractor’s lien for the extras. The lien of the defendant contractor should therefore be reinstated to the extent of $333.08.

For the reasons assigned, the judgment aippealed from is amended by granting judgment in favor of the defendant R. J. Cavender against the plaintiff, Morris Groner, for the sum of $333.08 over and above the $235.21 deposited in court by the plaintiff; the judgment is further. amended by ordering that the lien recorded by the contractor, . R. J. Cavender, in Mortgage Book 148, page 308, of the mortgage records of Caddo parish, he reinstated, recognized, and enforced, to the extent of $333.08, and that the Indemnity Insurance Company of North America be recognized as having a lien on the said sum cf $333.08 in the hands of the plaintiff, and that the plaintiff, Morris Groner, be ordered-to pay the same to the said surety company .for the account of the said -contractor, R. J. Cavender. And, as amended, the judgment is affirmed, the costs of the lower court to be paid by the defendants R. J. Cavender and the Indemnity Insurance Company of North America, and the cost of appeal to be paid by the plaintiff and appellee.

ON APPLICATION FOR REHEARING

McGREGOR, J.

Both plaintiff and defendant have asked for a rehearing in this case, on different grounds, of course. Counsel for defendant calls our attention to the fact that interest at the legal rate should be allowed on the $333.08, additional sum granted him on his reconventional demand.

Counsel for plaintiff call our attention to the fact that the citation credited to the. case of Stanley A. Harvey v. Louis Moncou, 3 La. App. 231, is an erroneous citation. Through a clerical error, the wrong syllabus was copied into our opinion. The one copied is from case No. 7254 of the Orleans Court of Appeal, styled H. F. Hinrichs v. Edmonds Realty & Investment Company, and is, of course, good authority for the views expressed in our opinion. The syllabus of the Harvey v. Moncou case, 3 La. App. 231, which we intended to • cite,- is equally strong. It was rendered by the same court and is an approval of the doctrine enunciated in the former case.

A careful reading of the brief in support of plaintiff’s application for rehearing and a re-examination of the evidence fans to convince.us that there is any error in our finding of fact. The defendant .is entitled to 5 per cent interest on the $333.08 from judicial demand, but it is not necessary to grant a rehearing in order to make this correction.

It is, therefore ordered, adjudged and decreed that the judgment heretofore rendered by us herein be corrected so as to allow 5 per cent interest fropi 'judicial demand ■ to the defendant on the $333.08 granted to him on his reconventional demand, and the said judgment is hereby corrected accordingly.