author: Watkins, J.

text:
    No. 12,778.
    George H. Dieck vs. New Orleans, City & Lake Railroad Company.
    Syllabus.
    The authorities are numerous, and uniform to the effect that a person whose-business or pleasure occasions him to use the streets of a city which are-traversed by electric cars, and particularly at street crossings, is guilty of-negligence if he fails to employ proper precautions for his safety.
    He is bound to look and listen for the approach of cars, and to exercise ordinary care and caution to avoid possible danger of a collision; and should he see-an approaching car in close proximity, it would be his plain duty to halt until same could pass by, rather than run the risk of an accident by attempting to cross the track in front of it.
    Failing to take such necessary precautions for his safety, the injured party is guilty of that negligence which deprives him of the right to reimbursement for injury received.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Bighlor, J.

      Edgar M. Gahn and Branch K. Miller for Plaintiff and Appellee.

      Denegre, Blair & Denegre for Defendant and Appellant.

      Argued and submitted May 6, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused February 6, 1899.
   The opinion of the court was delivered by

Watkins, J.

This suit is by the plaintiff, in his own right, claiming- damages of the defendant in the sum of twenty-five thousand dollars, for the injuries he received in a collision which occurred on Royal street, in the city of New Orleans, on the 8th of April,. 1891, between one of the defendant’s electric cars and a cart in which-he was at the time driving-, the same being- drawn by a mule.

The ease was tried by a jury, who rendered a verdict in favor of the plaintiff for five thousand dollars; and from a judgment thereon rendered, the defendant has appealed.

There was an extended and elaborate motion for a new trial filed, but same was, by the judge a quo, promptly overruled, who made this unique observation, viz:

“As I make it a rule in jury cases of this kind not to grant new trials, this application is denied.”

The plaintiff’s petition substantially makes the following statement of the way in which the accident happened, viz:

That he was driving a cart, drawn by a mule, along* Congress street, approaching- its intersection with Royal street, “intending to cross the latter,” and that when his cart “had reached the intersection of said two streets, and was in the act of crossing- Royal street, he observed, half a square off, a ear of the said company’s line, operated on said street, approaching with great rapidity from the direction of Poland street, or down town.”

“That then and there observing-- that the speed of the car was excessive, and that no signal of approach (was given), nor any attempt to check the same was made by the motorman thereof, (he) turned his mule in the direction of Canal street in order to escape what seemed' to be an impending- collision;” same being solely due to the fault and negligence of the motorman of said car, “the approach of which-having- been observed by him when it was at least half a square from the intersection of the said two streets.

“That said car could have been stopped, or its speed so checked, as to avoid injury to the plaintiff, had the motorneer thereof made any attempt to do so, but, on the contrary, no effort was made by the-latter to avoid collision with him, or the vehicle in which he was adding, by reason of which the said car, propelled at an unlawful rate •of speed, came in violent collision with the said cart, throwing him ■•therefrom to the ground,” etc.

That in falling one of his arms was caught and held fast in some of ■the appliances underneath the car, whereby ho was dragged for the distance of three-quarters of a square, and that said ear continued its rapid motion, after the collision, for that distance.

That he then and there received serious and severe injuries particularly in his left leg, which was severely lacerated and broken, in consequence of which it was amputated.

That he then and there suffered serious and great physical and mental pain, which lias continued with greater or less severity.

That his occupation was that of a laborer, in which his earning ■capacity has been greatly diminished by the loss of his leg, he being made a cripple for life.

That he is a man of family, having a wife and five children, who are solely dependent upon him for a support.

The answer is a general denial, c-oupled with a charge of contributory neglect.

The case presented is that of a man riding in a cart, drawn by a mule, going along a street of the city which is laid at right angles with another street, on which is laid the track of the defendant, and which as traversed, at frequent intervals, by its electric cars; and in order to .arrive at his destination, it had to be driven across the latter at the rpoint of the intersetion of the two streets.

The plaintiff having driven his cart into the street occupied by, the ■■defendant, observed one of its electric cars at a distance of about a •'half a block and approching with a great rapidity, attempted to turn ‘his mule and cart into the street the car was passing, and m the •direction of Canal street; and by reason of the great velocity of the ■car, and the failure of the motorneer to attempt to cheek the same, a collision between the cart and car took place, whereby the accident .ensued and the serious and irreparable injury was inflicted.

We make the following extracts from the summary of the evidence ■which plaintiff’s counsel gives in his brief, viz:

“Congress and Royal streets are situated at right angles and cross ■•each other at the point where the casualty occurred. Plaintiff was «coming in his wagon along Congress street, from the direction of the ■lake, toward the river; his course lay across the intersection of the two streets; he was struck by the car a few feet above Congress street, while attempting to avoid being collided with, by turning up Royal street, in a direction the same as the car was coming from. Plaintiff says that when he approached the corner he listened to hear if the car was coming-; he heard neither sound nor gong, so he continued far ■enough to look down the street and see whether a car was in sight; he saw the ear in question half a square away, coming at full speed; he was then on the wood’s side of Royal street, coming out Congress ■street, toward the river; the head of his mule was then over the rail of the track on the wood’s side, or towards the direction from which plaintiff was coming; he looked down the street for the car, when the head •cf his mule was over the rail; the car was coming at full speed; he raised his hand and gave a signal for the car to stop, after which he headed his mule towards Canal street; he turned up the street because -he could not make the crossing in time; the collision occurred; he was ■knocked off his cart, and was not conscious until some time afterward; when his senses returned, he found himself holding to the car, underneath, near the hind wheel, three-fourths of a block away from Congress street; he was taken from underneath the car, and carried by the ambulance to the hospital, where his left leg was amputated about three inches above the knee.” Brief, p. 3. '

The further statement is of similar purport, viz:

“As he approached Royal street he was standing in the cart at a point in the rear of the axle, about the middle of the cart, as drivers usually do. When he first saw the car he was at the foot of the crossing of Congress street, on the wood’s side of Royal street. The front foot of the mule was then over the rail. It was there that he changed the direction in which he was going, and when the collision occurred, the wheels of his wagon were on the crossing.

“It was not until then that he could look down Royal street, clear of the building's at the corner. His wagon was struck while it was going toward Canal street, after he had completed, or partially completed, the turn he intended to make. His left wheel was then on the track. The building on the lower side of Congress street, at the corner, prevented his seeing the ear until he reached the point at which he did see it. He did not stop at the corner before being able to look down Royal street, because he heard no gong sounded. His mule was going in an ordinary walk. He listened for a gong from within half a square of Royal street.

“There was nothing to have prevented the motorneer from seeing his mule when he cleared the buildings at the corner.”

On the other hand, the contention of the defendant’s counsel is as follows, viz:

“Defendant, on the other hand, contends that absence of negligence or fault, on its part, is clearly established. The great weight of the evidence shows; (1) That the gong was rung before approaching the crossing; (2) that the car was not running at an unlawful or excessive rate of speed; (3) that the brakes and the equipment provided for stopping the car were in good order; (4) that as soon as the motorman saw, or could have seen, from plaintiff’s actions that he was going to attempt to cross the track, every eifffort was made to stop the car and prevent a collision, but it was impossible to stop in time to avoid the accident; (5) that, considering the distance of the car from the place of the accident when plaintiff’s cart emerged from Congress street, it was impossible to prevent the accident by stopping the car. Defendant claims, moreover, that plaintiff’s contributory negligence is demonstrated by the nature of the locality, as shown by the maps and photographs in evidence, and is established, not only by defendant’s evidence, but by the testimony of plaintiff, and of every one of plaintiff’s witnesses who saw the accident.” Brief, p. 4.

The following additional extract from the defendant’s brief, gives-measurement and distances which are instructive, viz:

“The car in question was coming down Royal street toward Canal street. The map gives the dimensions of the streets and banquettes. Eor instance, from the Royal street property line, on the lower woods-corner of Royal and Congress streets, to the street edge of the gutter, is eight feet ten inches; from that point to the rail nearer the woods-is ten feet two inches; width of track is five feet two and one-half inches; from river rail to gutter, on river side on Royal stieet, is eleven feet six inches; and from gutter to property line is nine feet. The map marked “Tutweiler 2” shows the same locality, but takes in Royal street for one block of its intersection with Congress street. The important fact shown on this map is that the block below the intersection of Congress and Royal, i. e., the block bounded by Independence and Congress, is a very short block, only one hundred and ninety-seven feet in length; and that a person on Congress street,. twenty-one feet six and one-half inches from the woods rail of the railroad track, could see a car coming down Royal street when it was-a block a way; that when the ear was half of the block away' it could-be seen from a point.on Congress street, twenty-four feet and one-half inch from the woods rail of the track; and, of eouse, the nearer the car was to the crossing, the greater the distance from the track it could be seen by one coming out Congress street toward the river. The width of Congress street is twenty-eight feet one inch. It is a-planked road.” Brief, p. 6.

Consequently the result of the foregoing measurement is that the distance from the property line at the corner of Royal and Congress streets, to the rail of defendant’s track on the woods side of the street, is nineteen (19) feet; and the width of the track between the-rails being five feet and two and one-half inches, it would have been necessary for the plaintiff’s wagon to have moved a distance of twenty-four feet and two and one-half inches in order to clear the track; and' possibly a distance of three additional feet for clearance space, i. e., a distance of fully twenty-seven feet and two and one-half inches, in order to have passed beyond a point of possible contact with the car of defendant, and thus avoided a collision. Shreveport and Red River Valley Railway Company vs. St. Louis Southwestern Railway Company, 51 An. 424.

It is claimed, further, that the block below Congress street — that is-to say, the block between Congress and Independence streets — is only one hundred and twenty-seven (127) feet in length, and that a person on Congress street, twenty-one feet and six and one-half inches (21 feet 6 1-2 inches) from the rail of defendant’s track, on the woods-side thereof, could see a car coming down Royal street when it was a block distant. That when a ear is half a block distant, it can be seen-from a point on Congress street twenty-four (24) feet distant from said rail.

That the nearer the car is to the crossing, the easier it could be-seen.

From the map in evidence, as well as from other evidence in the-record, it appears that Congress street is floored or covered with plank, and that it is twenty-eight (28) feet in width; and that there is on the down-town side of it a banquette, or sidewalk, laid with brick,, which is nine feet six inches (9 feet six inches) in width.

A diagram, which is in evidence, shows all the foregoing distances, by actual measurement, to be as they are stated in the foregoing extract from the defendant’s brief.

With this data kept in view, a brief synopsis of the testimony can be more understandingly made.

The plaintiff’s statement is, that the collision occurred on Thursday, the 8th of April, 1897, between the hours of three and four o’clock in the afternoon.

That he was proceeding down Congress street in the direction of the river, and when he got near Royal street he was listening to hear if a car was coming, and hearing no gong, he drove on “far enough to look down the street to see whether a car was coming, and when he looked he saw a ear half a square away coming at full speed.”

At that time his mule’s head was over the woods-side rail of the track, heading towards the river; and that he then signaled the motorneer to stop his car, and at the same time headed his cart toward Canal street in an effort to avoid a collision with the car.

He says, that the point of contact was between the hub of the wheel and the mule. “That was the portion of the cart that received the blow.”

The one he was driving was a two-wheeled cart.

It was empty, and he was going to the river for a load. That he was standing up driving the mule.

“Q. So that your wagon, when you first saw the electric car, was between the two banquettes of Congress street ?

“A. It was between the two banquettes on Congress street.

“Q. That is where your cart was when you first saw the electric car?

“A. Yes.”

He states that his mule was going in a walk at the time.

Then the following interrogation occurred, viz:

“Q. Now, at what rate of speed were you going, in a walk, or a •trot ?

“A. I was going in a walk.

“Q. Your mule was walking?

“A. Yes.

“Q. And you mean to say you walked your mule right up on the track, before you saw the ear coming?

“A. Yes.

“Q. Now, although you saw the car when it was half a square off, and your mule’s head was simply over the track, you say you could not. turn to get out of the way?

“A. No; I could not.”

The statement of one of the plaintiff’s witnesses is, that at the time of the accident he was present and witnessed it. He said he was-working at the corner of Congress and Royal streets, and had just finished some paving, and was going down town, when he saw ah electric car coming in the second block below. That he then walked across-the street to where his brother was.

“Then Mr. Dieck came out Congress street. And when the car was-about a half a block below Congress street, I hollowed at Mr. Dieck to-get over the track.

“Q. Where was Mr. Dieck then ?

“A. He was about three feet from the rail. I don’t know whether Mr. Dieck heard me or not. I can not tell you that. At the same-time the car came on and Mr. Dieck went ahead, and I saw him turn his mulé up town when the electric car struck him; and Mr. Dieck fell back out of his cart.

“Q. How far was the electric ear from the corner when you saw Mr. Dieck coming out Congress street with his cart?

“A. About a half a block; and when Mr. Dieck reached about ten feet away from the track I hallowed at him. He was about ten feet from the track when I hallowed at him.

“Q. When you hallowed at him, you say he was ten feet from the-track ?

“A. Yes.

“Q. What I want to know is, how far was the car from the corner when Mr. Dieck’s mule and cart reached the track ?

“A. It was about a quarter of a block away.”

This witness states that the car was running very rapidly, and did not stop; and that he heard no gong rung. And that after the collision occurred, the car ran the distance of three-quarters of a block, before it halted.

He says there were two little boys in the wagon, and he saw them tumble out and run away.

The following occurred on cross-examination, viz:

“Q. Whqn you first saw the cart what was it doing; was it running along ?

“A. Mr. Dieck was in the cart, and was running along coming ■toward the river.

“Q. At what gait was it going?

“A. He was just wallsing along the street, just like you drive a .mule.

“Q. Was it wallsing fast dr slow?

“A. Well, you can make a mule walls fast or slow.

“Q. Was he walking fast or slow?

“A. Neither fast nor slow.

* * * * * -x- *

“Q. And you say he was ten feet from the rail when you hallowed .at him?

“A. Yes.

“Q. Did he not give his mule the whip then?

"A. No; I never saw him give the mule the whip.

* * * * -x- * *

“Q. Was he not looking straight ahead?

“A. When I hallowed to him he was looking straight ahead.

* -x- * * * * *

“Q. You can stop a mule going in a walk within ten feet?

“A. Yes; or two or three feet if he goes in a walls.

* -x- -x- * * -x- *

“Q. Did you say, when you hallowed at Mr. Dieck, you were within .two steps of his cart?

“A. I was right along side of the gutter, and he' passed in the -middle.”

At that time he was about ten feet from the track.

The brother of the witness last mentioned, in the course of his Interrogation, said, viz:

“Q. Did you notice the cart when the head of the horse had ■reached the track ?

“A. Yes.

“Q. How far was the car then to the crossing ?

“A. Well, they were not more than ten feet apart.

“Q. You are sure of that?

“A. Yes.

-* * * * * -x- *

“Q. Now, when the head of Mr. Diecls’s mule was on the track, had the ear reached Congress street, or was it ten feet away from Congress street ?

“A. It was about ten feet from the rail when he was trying to turn the mule.

“Q. You have stated that the car was ten feet away when Mr. Dieck reached the corner ?

“A. I was there when the whole thing was passing; I was standing right there.”

This witness having stated, on cross-examination, that the plaintiff was standing in his cart, driving his mule at a slow walk, with the rim of his hat turned down, at the time he shouted at him, the following interrogation occurred upon his re-examination, viz:

“Q. Now, put your hat on and show us how Mr. Dieck had on his hat when you saw him on his cart?

“A. This way (witness putting on his hat and pulling down the rim).

“Q. Was Mr. Dieck holding his head down?

“A. Yes.

“Q. Just like you are holding it now?

“A. Yes.

* •* # * -X- -X- *

“Q. You did not notice how he held his head, but you noticed how his hat was turned down?

“A. I know his hat was turned down.”

With this the re-examination was concluded. Another witness for the plaintiff, who was present and witnessed the accident, made this statement, viz:

“Q. How far was the car from the corner when Mr. Dieck reached the corner?

“A. When I saw the car, he was no more than about eight yards,

“Q. You did not see it before then?

“A. No; I was sitting down; the cars go so fast there.”

Again:

“Q. At what rate of speed was the cart going when you first saw it ?

“A. When I saw it ?

“Q. Yes; how fast was the cart going?

“A. It was walking slow; I told him to stop. ■

“Q. Was that before he got to the track, when you told him to ■ stop ?

“A. Yes.

“Q. Was he walking slowly before he got to the track?

“A. He was walking slow all the time,” etc.

The statement of another witness who was a passenger on the car, is as follows, viz:

“Q. How, then, were you able to see that cart when you were a half a block away?

“A. I was looking right ahead when the thing happened.

“Q. Did you see it looking out of the car window ?

“A. No; I saw it through the car door.

“Q. You saw the driver of this cart when the car was one hundred and fifty feet away ?

“A. Yes; I could see exactly when it was one hundred and fifty feet away.

“Q. I suppose the driver, then, could have seen the cart ?

“A. I don’t know.

“Q. If you could see the driver, why could not the driver look along the same line of vision and see you ?

“A. The man was not looking that way.

“Q. If he had been looking that way, he could have seen the car ?

“A. Yes; I suppose so.”

He says there were twelve or fifteen other persons in the ear besides himself.

Again:

“Q. Did somebody try to turn the brake in the front part of the ear?

“A. Yes; the motorman, I believe.

“Q. Now, do you know what was the reason why they attempted to turn on the rear brake ?

“A. To stop the car.

“Q. You say they did it because they could not stop the ear with the front brake; how do you know that?

“A. It looked that way.

“Q. State the facts which malee you say it looked that way ? etc.

“A. Well, I saw the motorman try to turn the brake, (but) it looked like he could not shut off the power; and when I walked towards the conductor, I saw somebody turn the rear brake.”

Another witness who was on the car, confirms the statement of the one last mentioned, thus:

“Q. How far was that car from the corner of Congress street when Mr. Dieck reached the corner of Congress and Royal ?

“A. It was fully half a square away.

“Q. You are sure of that?

“A. I am positive.

“Q. What was it you saw a half a square off — the mule or cart, or-both?

“A. I saw the mule and cart, and Mr. Dieck and a little boy with him in the cart.

“Q. Are you positive of what you state now ?

“A. Yes.

-XXX-***-*

“Q. How many feet was it from the corner when you first saw the motorman try to stop the car?

“A. One hundred and twenty, or one hundred and fifty feet.”

On cross-examination the following occurred, viz:

“Q. Where was the mule when you first saw it ?

“A. It was near the corner.

“Q. He had not quite reached the corner when you first saw it ? “A. Not quite; he was a few feet from the corner.

* * * * * * *■

“Q. So he had not yet reached the corner of Congress and Royal streets then ?

“A. No; he was a few feet distant from the corner.

“Q. So, he had not yet reached Royal street, when coming out Congress ?

“A. Yes.

“Q. Erom where you were sitting you could see both the mule and the cart?

“A. I could see the whole thing. I jumped up when I realized there was going to be a collision.

*******

“Q. In what direction was (Mr. Dieck) looking?

“A. Well, at the time that I saw him, I think he saw the car coming — I saw him looking in the direction of the car.

“Q. Was he going in a walk?

“A. Yes.

“Q. And the mule had not reached Royal street ?

“A. Not quite.

“Q. So that, the whole distance from Royal street — that is, from the property line of Royal street to the woods side of the rail — was between him and the track at the time?

“A. Well, from the time when I saw him, from the mule’s head to .the rail, I suppose was eight or nine feet.

And the mule was going in a slow walk ?

-"A. Yes.

' “Q. And Dieck was looking at the car ?

"“A. He was looking at the car.”

-Another passenger on the car stated that, seeing there was about to "be a collision, he tried to stop the car by pulling down the trolley.

“Q. Why did you unloose the trolley?

“A. Because I had an idea that that would stop the car.

“Q. Do you know anything else about this collision ?

“A. The motorman could not stop the car.”

The foregoing is a very fair analysis of the testimony of the plaintiff’s witnesses.

The defendant’s testimony shows that the motorneer, who was in -charge of the car with which the cart came in collision, had been in the employment of the defendant in that capacity for a period of two years, and had the reputation of being both competent and careful, .and had never had an accident to happen to his ear before.

One of the officers of the company testified as follows, viz:

“Q. What can you say about his character and efficiency as a .motorman ?

“A. 1 consider him a first-class man; his record is extremely good.” 'The testimony shows that at the locality where this accident ■occurred, the rules governing the company permit a higher rate of speed in the movement of its cars than at localities nearer to Canal, •street; and that when moving at that rate of speed, a car could be ■stopped within a distance of one hundred and four feet — or the distance of one-third the length of an ordinary block.

The following is the further interrogation of that officer, viz:

“Q. Is there any rule of the company which forbids, or makes it ■the duty of the motorneer to ring his gong in the middle of the •square; or is it left to his discretion?

“Á. It is left to his discretion. We have a rule not to sound the .-gong unnecessarily.

‘■Q. You don’t require the motorneer, as an absolute duty, to ring .his gong when approaching every crossing ?

“A. We have no absolute rule on that point.”

A police officer, who was a passenger on the car at the time of the accident, states that, to his knowledge, the motorneer used his best efforts to stop the car by the use of his brake; and that he distinctly sounded his gong about the middle of the block. That it was imme- . diately afterwards that he saw him turning his brake.

He said, there had been a shower of rain and the motorneer had on a rubber coat.

A witness, who lives in the block adjoining the one where the acei- ■ dent occurred, makes this statement, viz:

“I crossed Independence street. I was looking to see if a car was crossing, when I heard the motorneer ring the bell. The car was coming at full speed. And when I looked toward Congress street, I saw a cart and a mule. Then I saw the motorneer trying his best to :stop the car, but he could not stop it. At the same time I saw a man in the cart trying to pull the mule back; but he could not do it.

“Q. At what gait was the mule going — at what speed?

“A. Just a slow walk; but he could not pull the mule back.

“Q. You say you saw the-motorman attempting to stop the car? “A. Yes; he tried to stop the car, but he could not do it.”

She says she distinctly heard the gong sounded.

Another witness, .who was a passenger on the car, says “the motorman rang his gong at some place between the street below and the •street where the accident happened. I don’t know the name of the street. There was a kind of a drizzling rain, and the motorman had on his rubber coat, etc.” He said the motorman was trying to put on his brakes; “if he had had steam on he could not have put it on harder.”

The motorman who was in charge of the car which came in collision with the cart, makes this statement, viz:

“On my three o’clock trip going up Royal street, on reaching (a point) near Congress street, there was a cart coming out Congress •street, going toward the river. There was a drizzling rain. I rang the gong about the middle of the square in between Independence and ■Congress. And when I noticed the mule’s head it was about sixty feet -from the corner — the mule going in the direction of the river.”

That is to say, that when he first saw the appearance of the mule’s head, the car was sixty feet from the corner of Congress and Royal streets.

He said that he at once tried his braise, but the distance was so-short that he tried his reverse, but it would not take effect.

He said he could not prevent the accident because the distance was so short. “It was too short a distance to stop any car.”

“Q. What was the speed of th'e car at the time?

“A. I don’t know; about ten miles an hour.

“Q. How many notches did you have on ?

“A. Six notches; that is all the cars there run on — six notches is all they have.”

He said his brakes were in perfect order; that he never had any trouble with the brakes on that car.

In the course of that witness’ cross-examination, the following was brought out, viz:

“Q. You did all you could to stop the ear before you got to Congress street ?

“A. Yes, in order to avoid the collision.

“Q. Your speed, when you began to check up, you say, was about ten miles an hour ?

“A. About that, I am certain.

“Q. Did your speed increase, or diminish from that point when-you tried to check the speed of your car ?

“A. As soon as I applied my brake, it checked the speed.

“Q. You say, you shut off the power ?

“A. Yes.

“Q. Did you do that at the same time when you put on the brake?'

“A. Yes; when I saw that the distance was too short to stop (the car) by the brake, I applied the reverse.

“Q. All of that would bring the car, when getting to Congress street, going at that rate of speed — you threw off your power first, and1 then applied the bi;ake?

“A. Yes.

“Q. And then you reversed your power ?

"A. Yes.

“Q. And that would make your ear, running at what rate of speed,, when getting to Congress street ?

“A. About half speed.

“Q. It would run at half speed at Congress street ?

“A. Yes.

“Q. You could, then, by doing what you did, reduce your speed .half speed within a distance of sixty feet ?

“A. Yes.

-X -X . -X X -X -X *

“Q. You needed a hundred feet, and no less, to make the ear •stop?

“A. That is if you have a dry'track.

“Q. On that day, I understand, the track was slippery as it had been raining?

“A. Yes.

x -x -x x x x x

££Q. Mr. Dieck started right across the street?

“A. Yes; I tried to save him, and avoid a collision.

£‘Q. The man in that cart did not change his course?

'“A. How was that ?

££Q. He kept straight across Royal street?

“A. Yes; he kept straight across Royal street.

,££Q. Do you know whether or not he saw the car ?

'“A. I don’t know whether he saw the car- or not.

“Q. He kept right straight on across Royal street?

“A. Yes.”

The statement of the conductor of the car, in every essential detail, -corroborates that óf the motorneer.

With this witness’ evidence the case was closed, without any testimony in rebuttal, or any attempt being made on the part of the plaintiff to impeach the defendant’s witnesses, or to impair the effect of their testimony; for the testimony of the plaintiff, as well as that of the defendant, puts the fault or blame, if any there was, upon the plaintiff, and altogether exonerates the defendant.

On account of the serious character of the injury inflicted on the' plaintiff, the large amount of damages claimed, the weight which •ought to attach to the verdict of a jury, and the fact that the district judge declined to grant a new trial, have impressed us with the onerous duty of instituting a more than usually careful examination of this record; aud we are fully convinced that the plaintiff has utterly failed to make out even a case of probable fault on the part of the ..company.

Simplified, the case may be thus stated, viz:

The plaintiff, accompanied by a little boy, was driving his two-wheeled cart along Congress street, one afternoon, at about the hour-of four o’clock, in the month of April — his wagon being empty, and he occupying a standing position while engaged in driving.

IT is little cart was-drawn by a mule, and he was moving along at a. leisurely pace — his business seeming- to have been in no wise urgent.

As he neared the intersection of Congress and Royal streets, two-workmen standing near the banquette, and only a few feet from the plaintiff’s cart as he, was slowly passing by, called to him, or ratherhalloaed to him, to stop, and at the same time attracting his attention to the ear which was rapidly approaching- on Royal street, in easy open view; but he appeared neither to have heard them, nor to have seen the car, and did not slacken the pace of his mule, which was-headed in the direction of the opposite side of the street car track and of Royal street.

At the time, his face was averted and the rim of his hat turned' down.

A rapidly approaching car was about sixty feet away, when the plaintiff and his cart came in view of the motonnan, who sounded his-gong, put on his brakes, reversed his lever, and did all that could have Tjeen done to arrest the speed of the car: but all to no purpose, for a collision was unavoidable — the tracks being wet from recent showers-of rain.

An analysis of the evidence demonstrates two propositions, both-of which are fatal to the plaintiff’s claim, (1) that, when slowly approaching- the defendant’s track at the crossing- of the street on which-defendant’s track is laid, the plaintiff neither looked nor listened for an approaching car, or if he either looked or listened, and either saw or heard the approaching- car, he failed to stop his cart and 'thus-caused a collision therewith; (2) that the motorman used every possible effort to avoid a collision, by sounding his gong, putting down his brakes, and shutting off the electric current, just as soon as the plaintiff’s mule and cart came within the line of his vision at the crossing of the intersecting street — his car being- difficult to control on account of the track being wet and slippery from recent rains.

We find full confirmation of the latter in the plaintiff’s version off the accident, namely:

“When (I) first saw the approaching car (I) was at the foot of Congress street, on the woods’ side — the front foot of the mule being-over the rail — and it was then that (I) changed the direction in which I was going.” The plaintiff’s contributory negligence is thus plainly exhibited, and right of recovery defeated.

The authorities are numerous and uniform to the effect, that persons whose business or pleasure occasions them to use the streets of a city which are occupied by steam-trains, are guilty of negligence if they fail.to employ proper precautions for their own safety; and particularly if they fail to look and listen, at street-crossings, for the-approach of trains — whether they be pedestrians or driving vehicles,

Schexnaydre vs. Railroad Company, 46th Ann. 248;

White vs. Railroad Company, 42nd Ann. 990;

Herlisch vs. Railroad Company, 44th Ann. 280.

This rule of jurisprudence was well stated in the White ease, the-evidence disclosing that Mrs. White was driving in a buggy with three young children, on a street in the city of Shreveport; and approached a street-crossing of the defendant’s track so closely, that a passing, train frightened her horse so that he ran away and injured them.

The court said:

“We are bound to hold, that Mrs. White did not exercise that degree of care and caution which the law requires of persons approaching the crossing of a railroad track with intention to cross. She was unquestionably bound to look and listen, and to exercise care and caution to avoid possible danger, suggested by the very fact of crossing.”

The foregoing rule w,as recently applied to electric cars in the city of New Orleans, in two conspicuous cases, that of Hoelzel vs. Railroad Company, 49th Ann. 302, and Hemingway vs. New Orleans City and Lake Railroad Co., 50th An., recently decided. In the former-case the plaintiff was a pedestrian, who was walking on a path parallel with the street electric car track, at 10 o’clock on a very dark night, and the car rapidly approached him from the rear, and ran over and’ killed him, as he was attempting to cross the track, the head-light' being very dim. In the latter case, the plaintiff attempted to drive his cai’t, in which his two little boys were seated, over the street car' track in front of a rapidly approaching ear, which was in easy open view, at the hour of 3 o’clock p. m., and was thus-brought into collision therewith, whereby he and his boys received serious injuries.

In the Hoelzel case we referred to the rule, “that one approaching-a railway crossing, or attempting to cross a railroad track, must carefully look up and down the track,” and observed that the court was-called, upon to determine whether it applied to an electric car of a ■street railway, and said:

“Greater prudence is required of a pedestrian who crosses a railway ■track of a steam or electric car of a city.”

In Perez vs. Railroad Company, 47th A. 1391, this court held it to have been negligence on the part of a driver of a tallyho to attempt to cross a street crossing, in front of a rapidly approaching train ■at 11 o’clock at night, and said:

“It was the duty of the driver to have looked and listened before .■attempting to cross the railroad track. And notwithstanding that he ■did look and did plainly see the approaching train — the night being ■clear and the headlight of the locomotive being distinctly visible — the ■driver rashly undertook to drive his tally-ho across the track immediately in front of it, and scarcely a block away, and moving at a confessedly rapid rate of speed.”

In Smith vs. Crescent City Railroad, 47th Ann. 833, we held that one who, in the night time, walks upon the track of a street car, is bound to use his senses to avoid contact with the car; and if by the exercise of ordinary care he would have been apprised of the ad'-Ta ¡icing car in ample time to have left the track and failed to do so, was guilty of negligence and could not recover damages in case of accident.

In Schulte vs. New Orleans City and Lake Railroad Co., 44th Ann. 509, this court, speaking through Chief Justice Bermudez, said:

“The authorities are numerous, that, on approaching a street-crossing of a railway track it is the duty of a traveller to exercise his senses ■of sight and hearing, and to look and listen for the approaching train, •or car; and that his failure to do so is negligence, which, in case of ■collision, prevents the recovery of damages for injuries sustained”— citing them, and applying same to that case.

In our opinion the facts disclosed by the record bring this case within the rule established in the cited cases, and a like judgment .should be rendered rejecting the plaintiff’s demand.

'It is therefore ordered and decreed, that the verdict and judgment -appealed from be annulled and reversed; and it is further ordered and decreed, that the demands of the plaintiff be rejected at his cost in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,004.
    Mrs. Mary A. L. Mighell vs. John E. Kelley.
    Syllabus.
    .A lessee made defendant In ejectment proceedings can not legally change the character of the action from a summary to an ordinary one, and by neither answer nor intervention engraft new and foreign issues thereupon, nor in troduce new parties litigant for the purpose of trying questions which are only legally determinable in an ordinary action.
    ON APPEAL from the Civil District Court for the Parish d£ Orleans. Monroe, J.

      W. 8. Benedict and B. J. Maloney for Plaintiff and Appellee.

      Bernard McGloshey for Defendant and Intervenor, Appellant.

      Lazarus & Luce for Bertrand, Intervenor and Appellee.
    Submitted on briefs December 24, 1898.
    Opinion handed down January 9, 1899.
    Rehearing refused February 7, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is a summary proceeding by the plaintiff to procure the eviction of the defendant as a contumacious tenant of the premises leased to him; and from a judgment condemning- him to deliver up the possession thereof, the latter has appealed suspensively.

In this court the plaintiff and appellee filed an answer to the appeal, ■and prayed for the allowance of damages against the defendant, on the ground that same was prosecuted for the purpose of delay.

This suit is in the ordinary form of summary proceedings, and the petitioner declares that, on the 24th of February, 1897, she leased to the defendant the premises No. 841 Canal street, city of New Orleans, for a term of nineteen months, commencing on the 1st of March, 1897, and ending on the 30th of September, 1898, at a monthly rental of $333.33 1-3, payable monthly — for all of which instalments notes were given and a written lease executed.

She further represents, that, more than fifteen days prior to the expiration of said lease, she gave to the defendant as her lessee, a written notification to remove from and vacate said premises on or before the 30th of September, 1898, the date at which said lease would expire.

That her said tenant refused, and still declines to render compliance with said demand and notice, and that said delay has expired without his having removed from the leased premises, and'he has been placed in default for his not having done so.

Petitioner further avers, that she has leased the aforesaid premises to another tenant, of which fact the defendant had knowledge, and refuses possession to said new tenant; and that she is desirous of having possession of said premises in order to deliver same to said new tenant.

Bor answer, the defendant admits his lease from the plaintiff upon the terms and conditions stated; and that he received due notice to" vacate the leased premises; but, he represents, that on the 29th of' June, 1898, plaintiff executed a lease to one Fred Bertrand for a term of twelve months from the 1st of October, 1898, which is annexed and made a part thereof.

,’FIe further specially avers, that the said “leasing of the premises by said Bertrand was for the benefit of your defendant, and, in so doing, said Bertrand, to the knowledge of. said plaintiff, and wi1h her consent, was acting for and on behalf of this defendant, and in fulfillment of certain obligations assumed by said Bertrand towards your defendant individually and otherwise, and in liquidation and partial settlement of a certain indebtedness, and other business transactions between defendant and Bertrand.

“That the plaintiff acquiesced in the mutual covenants of defendant and Bertrand, and is, therefore, bound by the same.

“That said lease, while ostensibly granted to said Bertrand, was in truth and fact for your petitioner and should be so decreed.

“That he has been and still is willing and anxious to comply with-all his obligations under the said new lease.”

The prayer of his answer is in keeping with the foregoing averments, and coupled with the reservation of his right to sue for damages.

The defendant, contemporaneously filed an intervention and third opposition, predicated, practically, upon the same grounds as those assigned in the answer.

His prayer is, that the plaintiff and Bertrand be cited, and that he have judgment against them, decreeing that the lease of premises-between them “was entered into and executed for and on behalf of intervenor herein, and recognizing (him) as sole benefic-iary of all rights under said lease for the term therein stipulated, etc.”

The written lease between the plaintiff and Bertrand which is referred to, was annexed to the aforesaid petition of intervention; and, amongst other things, it contains the stipulation, that the “lessee obligates himself * * * * * to make no sub-lease, nor transfer said lease, in whole or in part.”

To this intervention the plaintiff plead a general denial, and Bertrand excepted (1) on the ground, that whatever controversy, or right-arising out of prior relations between Kelley and himself there might be, same can only be determined in an independent proceeding, and cannot be engrafted upon the present proceeding to eject Kelly as tenant; (2) that if he be at all accountable to Kelly on account of any prior relations between them, he has the legal right to urge his-defenses thereto in such an independent proceeding.

He prayed to be hence discharged with- cost.

The foregoing exception having been tried with the merits was-likewise decided with the merits, and sustained, and the intervention dismissed.

During the progress of the trial, Kelly was presented as a witness-in his own behalf, and counsel for plaintiff objected to any parol statements by him which tended in any way to vary, contradict, or alter the written contract of lease between the plaintiff and Bertrand; and said objection having been sustained by the court, the defendant’s counsel retained a bill of exceptions to the ruling and' opinion of the court.

An effort having been made to prove by the same witness, thai he had made the payment of the first installment of the new lease of-Bertrand, a similar objection was made, and to a similar ruling', a like-bill of exceptions was retained by Kelly’s counsel.

The reasons assigned by the court for its ruling are as follows, to-wit:

“Counsel for plaintiff stating he desired to make same objections, the court sustains same for the reason that the averments of the petition, and the admissions in the answer in this case, make it appear .that there is a written lease between the plaintiff herein and one Bertrand, and it is not competent by oral testimony to vary, alter, or contradict the terms of that lease by proving the real lessee is the defendant, and not the party named in the lease.”

Other testimony of like character having been offered and objected to by plaintiff’s counsel, the court made the following ruling, viz:

“The court is of opinion, that, in so far as relates to the ease ■of the plaintiff as against the defendant that the (proposed) admission is irrelevant and inadmissable unless the defendant is prepared to .show, that, by an agreement of a date subsequent to the date of the lease, the plaintiff in this case agreed to accept the defendant as the lessee in lieu of Bertrand, who appears to be the lessee.”

An examination of the transcript discloses no evidence tending to ■show, that plaintiff, who is a resident and citizen of Mobile, Alabama, .had any knowledge of the business relations, existing between the defendant and Bertrand, either before, or after the making of the new lease to the latter; or that she had consented to accept Kelly as her -tenant in lieu of Bertrand.

The brief of Bertrand’s counsel places the question determinative of the cause, very plainly and fully, in the following extract, viz.:

“The attempt to involve Bertrand in the controversy between Mrs. Mighell and Kelly, and to graft upon this summary proceeding an action for an adjustment of accounts, if any existed, was evidently prompted by the desire, and had for its object the purpose to postpone the determination of the 'controversy between Mrs. Mighell and her former lessee. If proceedings such as are resorted to here, were countenanced, every tenant whose lease had expired could maintain possession of the premises under lease to another, upon the bald statement that the new lease was executed for his benefit and advantage; and could thus defeat the summary process accorded to landlords for the possession of their premises upon the observance of certain formalities, and convert each case into an ordinary action, the ■trial of which would cover a period of time beyond tire reasonable life •of the contract of the lease itself; and it would confer an unfair advantage to the outgoing lessee, and subject the lessor under the existing lease to a contest in a summary proceeding, without the opportunity and advantages that the law accords him in ordinary proceedings. It would have the effect of depriving him of the possession of premises for which he had incurred all the obligations of a lessor, enjoying none of the advantages resulting from the occupation of the leased premises. It would practically nullify, in its effective operations, the summary proceedings accorded by law to the lessor for the possession of the premises, when the lease had expired.”

A somewhat similar case is stated in Ward vs. Stakelum, 47 Ann. 1547, in which the court held, that a claim for damages alleged to have been sustained by the defendant lessee through the plaintiff lessor’s ejectment proceedings, “cannot be grafted on a suit for possession of leased premises.”

That is, in effect the attempt made by the defendant. He must resort to 'independent proceedings for the assertion of his rights. We do not think this a ease for damages in favor of the plaintiff and appellee.

Judgment affirmed.


author: Watkins, J..

text:
    No. 13,024.
    R. L. Crook & Co. vs. The Tensas Basin Levee District.
    Syllabus.
    Relying upon custom and usage in the matter oí levee building, to the effect that the contractor is entitled to claim extra compensation for stumpage and clearing, outside of, and in addition to the calls of the written agreement, plaintiff has no cause of action on that score, if the agreement stipulates that no such claim shall be allowed or paid.
    Having accepted such a contract, and acted on it and performed the work and received the stipulated compensation therefor, he can not plead duress in avoidance of such stipulation, in order to make way to recover such extra compensation by virtue of a parol agreement with the president of the levee board.
    ON APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Wade B. Young for Plaintiff and Appellant.

      E. T. Lamhin for Defendant and Appellee.
    Argued and submitted January 30, 1899.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Watkins, J..

On exception of the defendant, this suit was dismissed by the judge a quo, for the reason that, in his opinion, plaintiff’s petition disclosed no cause of action; and from the judgment of .dismissal, the iffaintiff prosecutes this appeal.

The question, then, for the determination of this court is, whether the averments of the petition, taken as true, are sufficient to predicate .a judgment upon.

The plaintiff’s petition is reproduced in full in the brief of defendant’s counsel, and as a matter of convenience, we have made therefrom the following extracts, viz.:

Plaintiff claims of the defendant the sum of two thousand three 'hundred dollars for this, viz.:

“The petition of R. L. Crook & Co., a sole trader, residing in the county of Warren, and state of Mississippi, respectfully shows that the Tensas Basin Levee District, a corporation chartered by the laws of the state, represented by the board of levee commissioners of the ’Tensas Basin Levee District, and by John P. Parker, president, and having its domicile in your said parish, is legally and justly indebted unto your petitioner in the just and full sum of two thousand, three 'hundred dollars, with legal interest from January 1st, 1895, for this, 'to-wit:

“That A. P. Martin, the assignor of petitioner, was and had been for many years, a levee contractor in this state, and as such had taken -and executed faithfully many contracts for the construction of levees, from the state, and the several levee districts, including this one, and that in all such contracts it had always been implied and understood, -that extra compensation would be paid for the work of stumpage and clearing, and bids had always been made for the work upon such understanding, and that before the grievance of which he complains, such compensation had always been paid without question, for the reason that it was considered to be for the advantage both of the state, and of the contractor that suc-h work should not be estimated in •rthe price of the bid; that on the 29th day of December, 1893, the de.fendant, Board of Levee Commissioners for the Tensas Basin Levee District, in view of the fact, that the building of the Amos Bayou levee was of great importance to the people of the district, and that it was very esential that it should be constructed, before the overflow of 1894, .and that all formalities of advertising and other delays should be waived, authorizing the then president, W. J. Gray, to contract at once, and without advertising, for the building of the levee, to be -completed not later than March, 1894, at the least possible price;

“ ‘That the assignor of petitioner, having in mind what had been up to that time the uniform custom of the state and district boards, that extra compensation should be paid for grubbing and clearing, agreed with said president to build said levee for the price of sixteen cents per cubic yard;

“ ‘That in said agreement, nothing was said about extra compensation, because it was mutually understood and implied, that the compensation for such extra work as grubbing and clearing was not included in the price q,f the bid, but was to be estimated and paid over and above the price of the bid, at the final taking up of the work;

“ ‘That in view of the urgency of the occasion, and relying upon the uniform custom, and the good faith of the board, his said assignor íemoved his plant to the ground, and entered upon the performance of his contract without waiting for the execution of the formal written agreement;

“ ‘That, after his said assignor had been at work for some time, and while he was at his home in Waterproof, he received from the office of the state engineers a draft of an agreement containing the special specifications that the grubbing and clearing should be done without extra compensation, and that, in view of the fact that- no such specifications had ever before that time been inserted in such agreements, and that they were in violation of the uniform custom of the state and district boards, and o. che understanding upon which he had bid for and undertaken the work, that additional compensation was to be paid for such extra work, he refused to sign such agreement; but changed ■said specifications so that the written agreement would conform to the parol agreement, and forwarded the draft, wdth such changes, to the president of the board;

“ ‘That the then president of the board failed to sign the agreement •as so changed, but assured your petitioner’s assignor, that, if he w^ould ■execute the draft as submitted by the engineers, it should not affect the parol contract, and that extra compensation should be paid for the work of grubbing and clearing, notwithstanding the special specifications to the contrary;

“ ‘That petitioner’s assignor had then been at work for near six months, and had embarked his credit, and the moneys of his friends, in the performance of the contract, and found himself so circumstanced, that it was necessary for him either to abandon the work to the detriment of the public interest, and to his own financial loss, or to execute the agreement with the specifications inserted by the state engineers, and to rely on the good faith of the president of the board;

“ ‘That being a poor man, and having embarked his credit, and the-moneys of his friends in the work, he was forced to yield, and to sign the agreement as submitted by the state engineers, relying upon the' good faith of the board to do justice in the premisos, and that under such duress, and upon such express promise of the president of the board, he did, on the 11th day of June, 1894, sign such agreement;

“ ‘That the then president of the board, W. G. Gray, at all times-recognized the justice of his claim for extra compensation for grubbing and clearing, and after the work was completed and estimated repeatedly promised to pay the claim now in suit, and would have paid the same but for disagreements and dissensions between the members of the board, not connected in any way with the claim, which resulted about October 1st, 1895, in the formal action of the board prohibiting the president from drawing any warrant without special authority of the board;

“ ‘That petitioner has submitted said claim to the board, and said board, while not denying the justice of the claim, has refused to pay the same, upon the pretext that such contract so executed by petitioner’s assignor under such duress, and upon the express promise of the then president of the hoard, that it should not affect this claim, is valid and binding in law.

“ ‘Wherefore, in consideration of the premises, petitioner prays, that said contract so executed by him on said 11th day of dune, 1894, he annulled and avoided for duress, and error and fraud, and want of consideration, and that the parol contract between petitioner’s assignor and the president of the board, duly authorized by the resolution of the board, be judicially enforced;

“ ‘And that the Board of Levee Commissioners of the Tensas Basin-Levee District be cited to answer this demand;

“ ‘And that he have and recover judgment against said defendant for the said sum of two thousand, three hundred dollars with legal interest from January 1, 1895, and costs of suit;

“ ‘And for general and equitable relief.’ ”

The object of this suit is to recover extra compensation for the work of “stumpage and clearing" as not having been estimated in the price bid for the work; and that such had been the .uniform custom of the state and district boards in accepting contracts for the building of levees.

That in this case the defendant had waived the formality of advertising, and authorized its president to make with plaintiff’s assignor a contract for the building of the Amos Bayou levee, by parol.

That, in the verbal agreement between them, nothing was said about extra compensation, for the reason that, according to custom and. usage, that reservation was understood; and same was not included in the price agreed upon.

That after said assignor had been at work for some time, he received from the State board of engineers a draft of an agreement which contained the specification thal grubbing and stumping should be done without extra compensationj but that he refused to sign same ■ — relying upon the aforesaid custom and usage — but, having so altered said draft as to conform thereto, he returned same to the board.

That the then president declined to accept the altered agreement, but assured said assignor, that if he would execute the contract as it was first proposed, it should not affect his prior parol coniractj and that extra compensation should be paid him, notwithstanding its stipulation to the contrary; and that he assented to this proposal under protest, and signed same under duress, as it ivas uecesspry for him to either abandon the work to the detriment of the public interest, and his own financial loss, or execute the agreement with said specifications inserted therein.

In other words, plaintiff’s proposition is, that he accepted and signed a written contract with the defendant, to do the work, which contained an express stipulation that no charge or extra compensation should be allowed or paid, for stumpage and clearing; and after having enjoyed its benefits and reaped all of its advantages, to institute suit for the annulment of that provision, so as to enable him to claim extra compensation upon the faith of a parole covenant made with the president, in exact opposition thereto.

It requires no argument to prove that such a proposition is absolutely untenable in law.

It is evident that the alleged duress under which the assignor signed the agreement, was no duress at all; and, if he signed same under whole matter at large. duress, the effect of it would be to undo the transaction, and set the

But, this is exactly what plaintiff does not propose to do.

To our thinking it is plain, as it seemed to have been to the judge a quo, that plaintiff’s petition states no cause of action.

Judgment affirmed.


text:
    No. 13,070.
    Joseph Moll vs. Anthony Sbisa, in re, Joseph Moll Applying for Certiorari or Writ of Review to the Court of Appeal for the Parish of Orleans.
    Syllabus.
    The salary of the clerk of the Sixth Recorder’s Court is exempt from seizure.

      Gonmd G. Oollins for Relator.
    Respondent Judges pro se.

    Submitted on brief January 30, 1899.
    Opinion handed down February 6, 1899.
   'The opinion of the court was delivered by

Watkins, J.

The question presented for our consideration is an -linteresting one, and, in our opinion, is best stated in the opinion of ,our learned.brothers of the respondent’s court, and which is herewith ■reproduced in its entirety, and as follows, viz.:

“The question presented is, whether the plaintiff in injunction, Anthony Sbisa, holds an office within the meaning of Article 1992, R. C. C., and Article 647, C. P., providing, that money due for the salary ,of an office shall be exempt from seizure.

“He is a clerk of the Sixth Recorder’s Court, at a salary of $1,300.00 & year; he was appointed by the recorder, has taken an oath of office, nnd has been discharging his duties since May 1st, 1896.

“The Sixth Recorder’s Court was created by Act 154 of 1894, amendatory of the City Charter of 1882, (Act No. 20) and, among its provisions is one, that the recorder shall be allowed to appoint a clerk at a salary of $1,500.00 a year.

“Section 49 of the charter provides, that the recorders and their clerks shall have power to administer oaths.

“Although absolute uniformity of view is not found in the adjudged cases on the point at issue, yet they practically unite on the following fundamental principles.

1st. “That a public office is a public charge or employment imposed or conferred by appointment or authority of government for public purposes.

2nd. “That an office is an employment, but every employment is not necessarily an office.

3rd. “That there are two classes of public servants; officers, or those whose functions appertain to the administration of government; and employees, or those whose employment is merely contracted.

“The Supreme Court of the United States, in a case directly in point, in which it was urged (as it now is), that a person was not an officer, but a clerk, because no specific duties were imposed upon him, he gave no bond to the government, and was merely a subordinate and assistant, who performed such services as his superior directed, said:

“He was a public officer. The General Appropriation Act of-July 23rd, 1896, authorized the assistant treasurer at Boston, with the approbation of the Secretary of the Treasury, to appoint a specified number of clerks, who were to receive, respectively, the salaries thereby prescribed.

“An office is a public station, or employment, conferred by the appointment of government. The terms embrace the ideas of tenure, duration, emolument and duties. The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law.

“Vacating the office of his superior, would not have affected the tenure of his place.

“His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe. A government office is different from a government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects.

“The termg agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.”

6 Wall. 333. See also 110 U. S. 484.

“In another case, where it was shown that a civil surgeon appointed by the Commissioner of Pensions, acted only when called on in special cases, gave no bond, took no oath aud did not derive his compensation from a regular appropriation, the Supreme Court of the United States thus emphasized the distinction indicated in United States vs. Hartwell:

“If we look to the nature of defendant’s employment, we think it equally clear that he is not an officer. In that case the court said, the term embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary.

“In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent.”

“United States vs. Germains, 99 U. S. 512.

“The Supreme Court of this State, in declaring the salary of a city assessor exempt from execution, said:

“The text speaks of salaries of office. The term office, under our article, has reference to functions conferred by public authority, and for a public purpose.

“Chaudot vs. DeJong, 16 An. 400.

“In Hero vs. Castell, 22 An. 15, it was held that the office of City Notary of New Orleans, not being created or recognized by the charter, is not a municipal office.

“This negative is pregnant with the affirmative, that an office created or recognized by the charter, is a municipal office.

“It has also been held, that, a stenographer appointed under legislative authority by a judge of'the Civil District Court, is an officer of the Court, (State ex rel Legendre vs. Clerk, 47 An. 361), and that the veterinary surgeon elected by the Eire Commissioners of New Orleans, is unquestionably an officer of the department. (Wheeler vs. Fire Commissioners, 46th Ann. 734).

“By way of cumulative illustration, we may add that in other jurisdictions, clerks of court, criers, and deputies have been adjudged oíñcers wlien their appointment was authorized and their compensation was fixed by law.

“We have examined, the two cases mainly relied on by the attorney for the judgment creditor, but we fail to find in them any support for his position. In Vance vs. Lafforanderie, 4 Rob. 342, the party claiming- the exemption was an auditor of accounts appointed by the judge to settle the. accounts of a succession, and whose services as an officer of the court did not extend beyond that particular case.

- “In 42 N. Y. (L. 0.) 289, the party exercised no functions depending- directly upon authority of law, but served merely upon the request of a public board.

“We, therefore, conclude, that the clerk of the Sixth Recorder’s Court is an officer, within the meaning of the statutes, because the city charter creates his office, furnishes salary, confers upon him the power to administer oaths, and because he exercises functions appertaining to the administration of justice in a municipal police court.

“Judgment reversed, and it is now ordered that the injunction be made perpetual with costs of both courts.”

The article of the Code of Practice provides, that the sheriff “may seize the rights and credits which belong to (the debtor) and all sums ■of money which may be due him, unless il be for alimony or salaries of office.” Art. 647.

The language of the Revised Civil Code is, “there are also rights which are merely personal, that cannot be made liable to the payment of debts:” and amongst them are included “money due for the salary of an office, or wages or recompense for personal services.” Article 1992.

These two articles were construed in Conroy vs. Copland, 4th Ann. 307. to apply to public offices, and not to the liquidator of a bank; and hhe onlv point decided in Vance vs. Lafforanderie, 4th Rob. 340, was, that the language of the Code of Practice controlled that of the Civil ■Code.

Being thus lestrietcd to “salaries of office,” an allowance due an auditor of accounts for a succession was held subject to seizure.

But in Case vs. Taylor, 23rd Ann. 497, the court gave effect to the above quoted provisions of the Chil Code and held, that “the right of the defendant, arising from his contract with the State was a recompense for tjie personal services he has bound himself to perform for the state during the period of the contract; and, this being a. personal right is not liable to seizure by virtue of Article 1992 of the Revised Code.”

This is a different view from that expressed in the Vance case and proceeds upon the principle, doubtless, that the two codes having been-revised contemporaneously in 1870, effect must be given to the provisions of both.

And, in our opinion, that decision is correct.

In State vs. Newton, 28th Ann. 65, a juror claimed to be exempt from the performance of duty as such, on the ground that he was assistant clerk of the Second Municipal Police Court in the city of New; Orleans. “Thereupon the Attorney General stated, that he was an incompetent juror, and in this he was sustained by the court for the-reason that the juror was exempt by law.”

On this contention, this court expressed the following view, viz.:

“Act 94 of the Legislature of 1873, exempts among others, 'the-judges and officers of the several courts of this State.’ The juror was-an officer of court within the understanding of the act, and was correctly discharged by the court on his claiming the exemption.’’

In City of New Orleans vs. Lea, 14th Ann. 194, the question was as to the right of the city to tax the salary of a justice of this court and the court expressed this view, viz.:

“If the right to tax the salary of a judge be conceded, there would be no limitation but the discretion of the legislature, to do it to such an extent is virtually to abolish the means of conducting the judicial: department.”

And the court further says:

“The object, however, of this article was to secure the independence-of the judiciary. If the legislature can tax the salaries, it would be deprived of its plenary effect.”

Much the same may be appropriately said of the right of a creditor to seize the salary of a clerk of a recorder’s court; for, if it may be-done, that particular arm of the city government would become completely paralyzed.

We do not feel disposed to give to the language of the articles of the-codes a restrictive signification; but, on the contrary, we think their framers intended that they should receive á liberal interpretation.

Consequently, we are of opinion, that whether the salary of the-defendant, as clerk of the Sixth Recorder’s Court be- considered aS’ “money due for the salary of an office,” or as the “wages or recompense for personal services,” same are equally exempt from seizure.

It is therefore ordered and decreed, that the demand of the relator be refused, and that the opinion and decree of the respondents be maintained and enforced; and, it is further ordered that the relator be taxed with costs.


author: Breaux, J.

text:
    No. 12,843.
    James A. Young vs. Texas and Pacific Railway Company.
    Syllabus.
    A railroad company is liable if a conductor ejects a person from a ear inr properly while the train is in motion.
    A trespasser on a railroad train must be ejected at a place not perilous for one alighting in the night time.
    To a crippled person, though unlawfully on a train, greater care and attention should be shown than to the one who may better protect himself in an unsafe place.
    ON APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Thatcher & Welsh for Plaintiff and Appellee.

      Wise <& Herndon for Defendant and Appellant.
    Argued and submitted June 4th, 1898.
    Opinion handed down June 22, 1898.
    Rehearing refused February 6, 1899.
   The opinion of the court was delivered by

Breaux, J.

This was a suit to recover damages. Plaintiff charged that he was ejected from one of the trains of the defendant Railroad' Company; that he was made to fall by the violence of the conductor, who laid his hand upon him and pushed him out, while the train was in motion, where the track crosses a ravine about twenty feet deep.

Plaintiff averred that he had walked to Shreveport Junction,- about .ten. o’clock p. m., with a friend to meet the latter’s father, who was expected on the train, and to ride hack with them on the train to the city of Shreveport. This junction is about one mile west of that city. From it the east-bound train backs into the city.

lie alleges that persons frequently ride to and from the junction on the train without paying’ anything'.

In a short time after he had boarded defendant’s train at the junction, in order to ride to the city, he was called upon by the conductor for a fare of ten cents. His reply to the conductor was that he did not have the fare. Whereupon the conductor said to him that he would have to get olf the train. Being a cripple, plaintiff asserts that though the train had moderated its speed, he informed the conductor that he could not alight. In the language of the witness at the time he said he was ejected: “I told him I could not; that I was crippled, and he put his hand on my shoulder and shoved me "off óf the train, and I went down the embankment, and as I was going down the embankment, he, the conductor, said: ‘Look out, catch yourself.’ ”

It appears that plaintiff was born cripple. lie limped. From a child the large leader from the right foot to the leg designated the “tendon Achilles,” had been shorter than the leader from the left foot to the left leg. A surgical operation "was performed, enabling him to walk with less hinderance, but he still had a limp.

The conductor’s report handed in to the company after the accident-sets forth that a white man named Jim Young asserted that he had been pushed off the train between Shreveport Junction and Shreveport ; that he fell through the bridge and was injured. lie, the conductor, stated as part of the report that Young came on the train at the junction, and when he was asked for his fare he said he was only going to Jordan Station. Tie told him ho must either pay or get off. He, Young, chose to get off and he was told to wait until the train stopped at the stock yard. When the train stopped he got off as he was told to do; that he did not fall through the bridge and was not injured. He was not pushed or even touched. That as he backed the train from Union depot; Young was standing at Jordan street. lie ran to the porter as he flagged the crossing, and asked him who the conductor was. A few days after the accident, the conductor was interviewed by the reporter of a newspaper to whom he stated (the reporter testified) that Young was put off the train that had been brought to a dead stop in order that he might get out, for non-payment of fare. He denied that he had resorted to any violence. The conductor as a witness, states that the reporter’s statement was.substantially correct; that his train stopped at the stock pen, where the plaintiff got off voluntarily and was not touched. Rut he denies that he had said to the reporter that he had put the plaintiff off the car.

The evidence discloses, that as alleged, persons did ride free of charge the short distance between Shreveport and the junction, but that not long prior, order had been given to collect the ten cents fare called for by the conductor of the plaintiff.

It appears,that there were two large bruises on plaintiff’s leg, one above, the other below the hip joint. The hip joint was sprained. Sometime afterward it became apparent that the leg was smaller than it was when examined immediately after the accident. One of the physicians, as a witness, said in answer to the questions:

“Q. — You stripped Young and made a physical examination of him?

"A. — Yes. sir.

"Q. — State whether or not in his condition it is necessary for Mr. Young to go with a crutch now, in his condition?

“A. — That’s a thing very hard for a physician to say, but I would say that any condition which would cause the muscles of the leg co shrink, or rather, grow smaller, would also probably impair the functions of those muscles, eonseqixently he might have to use a crutch. A physician can’t tell by a physical examination whether it is neeessai'y or xiob”

The case was tried before a jury. The verdict found was for fifteen huudred dollars damages, in favor of plaintiff. Erom the verdict'oí the jury, axxd the-judgment of the court, plaintiff appeals.

There being some difference between the allegation contained in plaintiff’s petition and the evidexice offered by plaintiff to make oxxt his case, defendant urged that one srxixxg for injury growing out of negligence should set forth the material facts relied on as his cause of aotioxi and prove the comhixxatioix of circumstaxxces upoxi which ho relied in bringing his suit. Thus, the plaintiff having presented the issue that the eoxiductor pxxshed the plaintiff off the car, while iir motion on a high emhankmexxt over a trestle, he should he confined to that issxxe.

There was no objection made to the ndmissability of the evidence on the ground here xxrged. Tf the evirlexxee supplied the pleadings, and made it appear tlie plaintiff was forced by the, conductor to get down from the train, at a dangerous place at night, plaintiff is entitled to. damages for resulting injuries.

The facts presented by the record, without objection, are not to be passed over for the reason that the pleadings indicate a state of circumstances not entirely in accord with the evidence.

A waiver is virtually made by the failure to object to testimony not admissable on the trial of a cause because of the insufficiency of the allegation.

The evidence admitted was applicable to the issues raised. The court is, in consequence, without authority to refuse to give it effect. There was no inconsistency between the issue brought out by the facts regarding the unsafe place where the car stopped for the plaintiff to alight and the allegations of plaintiff that he was violently pushed out.

Inadmissable evidence of facts, not alleged, should be objected to. when offered.

England vs. Gripen, 15th Ann. 304.

Holland vs. Cammett, 5th Ann. 706.

Manifestly plaintiff met with an accident on the night in question. It is not so clear that it happened as he alleges or as he testifies He as a witness, is corroborated in essential particulars, by two of his witnesses. Highly credible witnesses, who were present, held different, views of the facts which came to their notice. Conceding that this-difference gives rise to some doubt we must give some weight to the jury’s verdict. The record informs us that the jury in a body, accompanied by the sheriff in charge, under direction of the court, visited the scene where the injuries alleged were received. After having heard the testimony regarding the place at which plaintiff was made to get off, and after having examined the grounds, it was not difficult to decide where the plaintiff alighted and whether it was a safe or unsafe place. We infer from the facts of the case that the jury determined that it was an unsafe place. Such a verdict, in our view, is sustained by the facts.

The disagreement in regard to the facts chiefly relates to whether the defendant was pushed off the platform and steps of the ear and whether the car was brought to a stop at the point where plaintiff asserts he was put off.

Plaintiff may have failed to sustain his case in the particulars just stated and yet the question of peril to plaintiff, growing out. of the unsafe and dangerous place at which he was made to alight wo aid still remain for determination.

If it be conceded that the jury decided all the grounds against the-plaintiff, save the last, the evidence, in our judgment, would sustain the verdict, if credence be given to the measurements of distances at the place and the uneontradicted testimony of witnesses. It was not a place where a person could be put off in safety.

It was the duty of the conductor to eject the plaintiff from the-train, but he was not warranted in acting with disregard of consequences. A wrong-doer has rights, as to his person, as well as to his property. He is not to be wantonly injured.

With reference to the amount of damages. The plaintiff in this-court has prayed for an increase. We feel quite certain that it should not be increased. We think the amount allowed by the jury does full' justice.

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


author: Brkaux, J.

text:
    No. 12,854.
    George Webster vs. New Orleans City and Lake Railroad Company.
    Syllabus.
    One who heedlessly attempts to cross ahead of a car, properly manned, if injured, has no one to blame but himself.
    The motorman was not at fault and none of the negligence charged by plaintiff was shown.
    He exercised reasonable care to avoid the injury. He paid proper attention, saw the danger, and gave notice or warning and did all he could to stop his car.
    There was nothing out of repair about the car or the track, nor anything lacking to increase the danger in which plaintiff, the testimony shows, placed himself.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Righior, J.

      11. 0. Hollander, 0. N. Ogden and 8. 8. Jones for Plaintiff, Appellant.

      Denegre, Blair & Denegre for Defendant, Appellee.

      Argued and submitted January 13, 1899.
    Opinion handed down January 23, 1899.
    Rehearing refused February 6, 1899.
   The opinion of the court was delivered by

Brkaux, J.

This was an action for damages arising from injuries sustained by plaintiff on Canal street on the 13th day of November, 1895. The charge is that he was struck on that day by one of the electric cars of that company. lie was walking along the neutral ground between Royal and Bourbon streets, and by the blow received his left leg was fractured. He was, in consequence, confined to the Charity Hospital, where he suffered great mental and physical pain.

lie had not entirely recovered from the effects of the blow at the date of trial.

At the place plaintiff was injured, there was a switch, and as the car came from the switch on the main track, the fender of the car projected over the path.

Plaintiff avers that the projection from the car struck him while he was walking on the path; that the evidence shows from his position before and after he was struck, ho could not have been on the track in front of the car and that ho was on the neutral ground.

He charges that the company by this projecting fender of the car became a trespasser; that he had a right to be on the neutral ground or path, along which he was walking, and that he supposed himself in safety at a point beyond the ordinary projection of all electric cars which passed along the track and that he was not guilty of negligence; that defendant’s employe should have guarded against the danger at the point at which he was when he was struck.

He also charges that the defendant was guilty of gross negligence by not having a trolley wire over the switch, thus cutting off the power by which the motorman could have reversed his motor and stopped the car quickly and prevented the accident.

The evidence shows that plaintiff is a worthy and excellent man; advanced in years, and that his hearing is a little dull; that he has a gift of invention as a mechanic, and is deserving of svmpafhy and good will.

The other witnesses testified that plaintiff was not walking on the neutral ground, but that he was walking on the track in front of the car.

Henry Taliaferro said that he was on defendant’s track; that he halloed to him to get out of the way, but that plaintiff did not hear him. Michael Carroll, motorman of the colliding car, testified to the sounding of the gong as his car was advancing.; that he saw plaintiff ahead; that he did all in his power to stop the car; that he put on the brake as soon as he saw that plaintiff was in danger.

The following are questions propounded to him, and his answers:

“Q. — You say that when you first saw this old gentleman, he was walking in the space between the Canal and Claiborne track, and the track which you were to come in on?

“A. — Yes.

“Q. — Was he clear of the track when you first saw him?

“A.- — -Yes, he Was perfectly clear of the track.

“Q. Then I understand you to say -that when you were almost on him he stopped on your track?

“A. — Yes, he never looked where he was going.

“Q. — Answer my question — you .saw him swinging around to go on your track?

“A. — Yes, and I did all in my power to save him.

“Q. What did you do to save him?

“A. — I rang my bell and turned the brakes.

“Q. — Did they act nicely?

“A. — Yes.

He also testified that immediately after the fender of the car struck plaintiff, he jumped out and caught him before he fell. The car was running slowly, and stopped immediately after plaintiff was struck. He also said that the woodwork’of his car projected ewer the track about a foot each side of the rail. The neutral ground near the track is five feet, six inches wide, and in order to get to the Esplanade street car he wished to board, he had to cross the car track of the, defendant company.

•Tames Callahan, another witness, who was on the platform of defendant’s car, corroborates the testimony of Carroll.

Iling'le, the conductor, said that the motorman sounded the gong continuously. Fagan corroborates the other witnesses about the signals given, the slow movement of the car, and the stop made immediately after the accident.

He does not, by his testimony, show that plaintiff was not walking in front of the car.

The court pronounced judgment for defendant, rejecting plaintiff’s demand.

Plaintiff prosecutes this appeal.

Plaintiff, we think, in good faith believes, that he was not in front .of the car at the time the accident happened. But he is not in this particular sustained by the testimony of the other witnesses.

It may be that plaintiff failed to hear the signal given, and that he .was absent-minded at the time, as men of his age will be who devote .many of their moments to particular subjects, (as in this case in con.strueting and inventing new devices and appliances), and that, in that condition, he erred as to the place or precise spot of the accident.

Be it as it may, the preponderance of the testimony does not sustain his contention on this point. This was the opinion 'of the District -Judge who heard and saw the witnesses, and it is ours after a careful .reading of the testimony as taken and brought up in the transcript. Upon this particular point, the place where the plaintiff was walking, .only facts present themselves for consideration. The facts do not show that plaintiff was where he claims he was, but, on the contrary, .they prove that he was walking in front of the car.

The view at which we have arrived disposes of the questions argued .at bar, on the theory that plaintiff was walking as he- alleged and urged on the neutral ground.

Plaintiff presented other issues for our determination which have ¡a bearing upon the case, whether plaintiff was walking on the front of 'the car or on the neutral ground. He charged that the defendant was .guilty of gross negligence by not having a trolley wire over the switch -so that the motorman might have "controlled and reversed his motor, :and stopped the ear quickly, and thus prevented accidents.

The testimony does not show that this reproach is well founded. It ■discloses that the car was running slowly and that it was almost in- ■ stantly stopped.

The motorman says “that he was within a foot of him (plaintiff) when he stepped in danger.”

The facts shown by other witnesses in the main corroborate the -statement. As the car was stopped immediately after the blow, it does ■not appear to us that there was anything wanting to effect a prompt stoppage of the car. The power, when the accident occurred, had not ■‘been turned on, and therefore, the car readily yielded, as we appreciate, to the effect of the brakes.

There was, it was made evident, no difficulty in stopping it. We are not led to infer from the testimony that on this particular occasion the danger to the plaintiff was greater because the defendant did ■not have any trolley wire on the switch.

The burden of proof was on plaintiff. He failed to establish that there was anything out of order about the car, or that any device was -wanting, or that the motorman was at fault. The record does not ■disclose the condition for which the plaintiffs contended, and there remains, in consequence, but one alternative, that is, to affirm the judgment. It is true that one on foot has a right to cross the street where he pleases, provided he exercises the right with due caution. It is his ■duty to use due care. It was negligence per se for plaintiff to attempt to cross ahead of a car under circumstances disclosed by the record.

The judgment is affirmed.