
    ELIJAH PINE VS TAFT A. HAIK
    NO. 9898
    COURT OF APPEAL PARISH OF ORLEANS
    WIDDIAH A. BBDD, JUDGE
    FEBRUARY 19, 1923.
    
      
    
   By WILLIAM A. BELL, Judge.

This is a suit for damages which plaintiff claims to have suffered to the extent of $260.00 for injury to his horse and huggy arising from a collision with defendant's automobile. The trial Court found for the plaintiff in the sum of $166.00, from vfcich judgment defendant has appealed.

The accident occurred on the wood-side of Burgundy Street, about 40 feet from the corner of Burgundy and St. Ferdinand Streets, in this City. It appears that about 8:30 o'clock on the night of April 29, 1928, while plaintiff's buggy and horse were standing at the above locality and during a heavy rainstorm, defendant's automobile struok the buggy on its rear left side, completely destroying the rear left wheel. The evidence is conflicting as to the nature or extent of damages to the horse, and the judgment of the trial Court does not show, except inferentially from the amount awarded, that the Court found both the animal and the buggy to have been injured. The horse and buggy wereeach valued by plaintiff at $125.00, while the judgment, as above stated, was for $166.00. The plaintiff and one of his witnesses are the only parties who testified that the horse was injured, the plaintiff swearing that one of the horse's legs was injured and that he was never able to use the horse from the time of the accident until its death four months thereafter. The plaintiff was not in his buggy when the accident occurred, but had taken shelter under a gallery or shed, to the post of which he had tied his horse. We are satisfied from the evidence that there was no light on the rear of the buggy. There was considerable argument before us over the evidence concerning the lantern on the dash-board of plaintiff's buggy and whether same was lighted at the moment of the accident or extinguished by either the rain or by tho impact of tho oolliaeion. Tho determination of these questions is immaterial for the reason that no traffic ordinances have been pleaded or offered by either litigant, and for the farther reason that we are convinced from a careful ex** amlnatlon of the entire record that the place- of the aooident mas well lighted by the publio or manioipal electric light shewn to have been homing near the place and at the time of the aooi-dent. We also find that both headlights on defendant's automobile were burning. Defendant testifies that eren-under these conditions he did not see the buggy at any time until his oar collided with it. and that he was not going more than eight miles an hour when approaching the buggy, under all these circumstances and notwithstanding that there was a henry, rain-stem which might hare partially obscured his eutlesk, we are of the eplnlon that the defendant oould and should.hare avoided the aooident.

There is evidence in the record to the effeot that the total repairs to plaintiff's buggy would oost him §00.00. He has net claimed nor proven any damage for deprivation of its uso, and we think this amount should be allowed him for repairs. We do net think, however, from the nature of the evidence before us that plaintiff has satisfactorily proven that the aooident resulted in either injury to his horse or that it ultimately caused the animal's death. Plaintiff first swears, in describing the aooident, that the collision with his buggy threw the horse en. the curbing and that he ran to the animal and made him itand up, wnioh he oould hardly do. When asked by his Counsel what happened to his horse, he answered: "He died from breaking the leg; it gave him the look-jaw." immediately after this positive statement .made under oath, he relates the. story on the next page of his testimony that »ftor the aooident, ho rodo tho herse towards homo for a dis-tónos of two bleaks, hut that finding tho horse was unahle to carry him, he then walked the animal from ton o’clock until nearly one o’eloek that night from St. Claude Street to his home, as far a distpnee as flood Street and florida Walk. Only one other wit-noss^adTthe plaintiff testifies that the horse showed the slightest oral deuce of even limping, while none of the several other eye witnesses to the aooident testified that the horse was even thrown to the street or ourbing, hut, on the contrary, all of them swear that the horse was standing all the while after the aooi-dent. On oross-exsminatien of the plaintiff he gives farther and more startling oontradiotory evidence in stating that he took the animal to a veterinary "when he oould get him to walk," and then he immediately says that he did not take him to the veterinary because the horse oould not walk, hut that he a (maulted a veterinary, who, without seeing the animal, prescribed a liniment for the horse’s bruised (not broken) leg, which was all swollen above and bwiew the knee. He finally swears the horse's knee oap was kneoked out of piaos and that he died in August, four months after the aooident. Although plaintiff's petition speolfioally names the veterinarian alleged, to have treated the injured horse, no sueh witness was produced in oorroboration of plaintiff’s story, nor has any evidence been offered to confirm the death of the animal nor the cause of the death if sueh has occurred.

In the light of this oontradiotory ana unaatiafaotory ovidonoo, aa abova diaouoood, we are net able te oonolude that the plaintiff has establishad, by any oonvinoing faots, sd that the horse wae in any way injurad or that damages from the aooident have been suffered by the plaintiff in this respeot.

It is, therefore. ordered, adjudged and deoreed that the judgment herein appealed from he and the same is hereby amended so as to reduce said judgment from the sum of $165.00 to the sum of $40.00, The judgment, as thus amended, is hereby affirmed at defendant's costs in both oourts.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

February 19, 1983.  