
    No. 13,730
    Orleans
    VINOT ET AL. v. LOUISVILLE & NASHVILLE RAILROAD CO.
    (May 25, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    Pomes & McCabe, of New Orleans, attorneys for plaintiffs, appellees.
    Denegre, Leovy & Chaffe and Harry McCall, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

The parents of Lionel Vinot bring this suit in his. behalf, claiming damages for personal injuries said to have resulted from an assault and battery committed by the flagman of the defendant carrier upon the boy while the latter was a passenger on its train on April 11, 1930.

The defense is that the boy was annoying a young school girl, who was also a passenger on the train, by placing his feet on the back of the seat on which she was sitting and pushing her forward, causing the girl and her books to fall on the floor, and that, when the flagman remonstrated with him, the boy cursed and abused the flagman and attempted ‘ to strike him, whereupon .the flagman slapped him in the mouth with his open hand and spanked him on his buttocks.

There was judgment in favor of the plaintiff for the sum of $300, and defendant has appealed.

The record shows that a number of school children used the defendant’s train to go to and from school, which they attended in the city of New Orleans. Plaintiffs’ son, aged 14 years, and about four and one-half feet in height, and weighing 90 pounds, was a passenger on the defendant’s train returning home from school. There was a little girl sitting in the seat in front of him, and the boy placed his feet against the back of the seat, and pushed her and her books forward, causing her and her books to fall on the floor. She appealed to the conductor, who, in a courteous and friendly manner, asked the boy to desist from teasing the child. After ■the conductor left, the boy again placed his foot on the back of the seat, and the little girl complained to the flagman. When he came to where the boy was. sitting, young Vinot still had his foot on the back of the seat, and simultaneously with ordering the boy to remove his foot the flagman kicked his foot down. The boy then jumped up and told the flagman to go beat his own children and mother, whereupon the flagman slapped him across the face several times, caught him by the neck, and punched him several times, in the body. He then pulled the boy to another seat, and forcibly threw him on the seat, and there held him down and administered' a beating to his face and body with his fists, striking the boy a numher of blows.

The flagman’s version of the occurrence was that the boy cursed and abused him, and that it was with a view of disciplining him and bringing him to his senses, because of the profane language he was using in front of the school children, that he slapped him in the mouth and thereafter spanked him in order to make the boy behave himself.

The trial court, in its reasons for judgment, said:

“*' * * The boy was teasing the little girl (as boys have been teasing little girls since the world began). It may well be the flagman was justified in interfering to stop him. Of course, it is' the duty of trainmen to protect a passenger from injury, or even' annoyance, at the hands of other passengers. But the action of the flagman grossly exceeded what the occasion required. The boy, fourteen years of age, was small and slight. The blows, which the flagman struck blackened his eyes, one of them nearly closing, caused his face to redden and swell and bruised his side and back. These injuries, are proved not only by the testimony of his schoolmates and his father and grandmother, but by that of Mrs. Netto and Doctor Rappanier, witnesses, who seemed without interest or partisanship. I have no doubt the facts, are as these two. state them. Even if the boy did push the little girl off her seat and scatter her books on the floor — and did so again after he had been reproved by .the flagman — and if he did use the bad language attributed to him, can it be said that the flagman was justified in inflicting on him so severe a beating? I observe the defendant claims the power not only to prevent, but .to punish misbehavior of a passenger. The trainman may be a policeman, but he is not a judge. The character of the boy’s injuries proves that the flagman was actuated by ill temper and that his purpose was not so much to correct misbehavior as to gratify his anger.”

If the flagman’s statement as to how he corrected the boy were true, it is certain that the boy would not have sustained the very severe injuries which he did. Our views are in accord with the opinion of our learned brother below.

He allowed .the sum of $300. Defendant contends that this amount is manifestly. excessive, and the plaintiff has answered the appeal, and asked that the award be increased. As a result of the beating, the boy sustained a swollen and bruised face, causing him to have two black eyes, one of which was partly closed, contusions of the head, ribs, spine, and back, and also an injury to his leg, where the flagman kicked him, all resulting in severe shock to his nervous system. The boy made four or five visits to the doctor’s office for treatment. His injuries were painful, but not serious or permanent. The award of the court below was for the pain, suffering, temporary disfigurement, and humiliation, because the boy was severely beaten in the presence of a number of his schoolmates. In the light of the awards in the following eases, we believe the • amount allowed is reasonable: Burrage v. Gill, 15 La. App. 126, 130 So. 857; Harvey v. Harvey, 124 La. 595, 50 So. 592; Linnan v. Linnan, 131 La. 535, 59 So. 981; Cerneglia v. Fratello, 144 La. 795, 81 So. 318; McVay v. Ellis, 148 La. 247, 86 So. 783.

For the reasons assigned, the judgment is affirmed.  