
    No. 11,777
    Orleans
    TEISSIER ET AL. v. STEWART ET AL.
    (April 29, 1929. Opinion and Decree.)
    For original opinion, see 11 La. App. 164, 121 So. 777.
    Edw. Rightor and E. V. Parham, of New Orleans, attorneys for appellant.
    Legier, McEnerny & Waguespack, and Delvaille H. Theard, of New Orleans, attorneys for appellees.
   WESTERFIELD, J.

Both sides have asked for a rehearing in this case, the plaintiff seeking to have the amount allowed for the injury to the minor, Lois Teissier, increased, and the defendant on the ground that we were in error in holding the defendant negligent, and, in any event, the amount allowed was excessive. It is said that we gave too much effect to the failure of Andrew Stewart, the defendant, to take the stand, and that no unfavorable inference should be drawn from this circumstance. City of New Orleans vs. Gauthreaux, 32 La. Ann. 1126; Brandt vs. Reboul, No. 9428 of the docket of this court (see So. Rep. Dig.).

In the first place, the failure of Stewart to testify was not the determining factor in the conclusion we reached as to his negligence. His speed, admittedly excessive, was the cause of the accident. However, his absence under the circumstances was certainly oí important significance. Where the driver of one of two colliding automobiles does not appear upon the stand, and no explanation is given, it is fair to presume that his testimony; if given, would not tend to exonerate him from the negligence charged, when it does not appear that he was ever'in the courtroom during the trial, and cannot be located by the sheriff, who seeks to summon him as a witness at the instance of opposing counsel. The cases cited by defendant are not in point. .

As to the quantum, we are not disposed to increase or diminish it. We are aware that it exceeds in amount any sum heretofore allowed in this state for the loss of an eye, but, because of the exceptional circumstances referred to in our original opinion, we believe it to be justified.

For the reasons herein set forth, both applications for rehearing are denied.  