
    (34 South. 722.)
    No. 14,535.
    HOWARTH v. PORTE.
    
    (March 16, 1903.)
    APPEAL — REVIEW—FINBING OF JURY.
    1. This case was one sounding in damages for personal injuries. It presents only a question of fact, as to which the jury found unanimously against the plaintiff.
    2. It is only where error is manifest that this Court will set aside the verdict of a jury, in a case involving exclusively a question of fae.t, after the same has received the sanction and approval of the trial judge.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.
    Action by Martha Howarth, wife of Lee Morgan, against Albert Porte. Judgment for defendant. Plaintiff appeals.
    Affirmed.
    Colin McRae Selph and Edwin N. White-more (Merrick & Lewis and Philip Gensler, Jr., of counsel), for appellant. William Reed Mills Whitney, for appellee.
    
      
       Rehearing denied June 22, 1903.
    
   BLANCHARD, J.

Plaintiff, who is a market gardener living in the suburbs of the City of New Orleans, was in her wagon, with a number of other people, going to view a Carnival procession on Monday night, February 18, 1901.

She lived in the upper part of the City and was going down St. Charles avenue on the evening in question between 6 and 6:30 o’clock. It was then dark.

She claims that while driving along the avenue her wagon was run into by the milk cart of the defendant, driven furiously, with the result that she suffered severe physical injuries and her wagon was damaged.

She sues for $5,000.00 damages, which amount covers compensation for her own injuries, medical attention, damage to wagon and loss of time from her business.

The defense was a general denial and the plea that defendant was not the party who, or whose cart, collided with plaintiff’s wagon.

Trial by jury was asked by plaintiff and had. The verdict of the jury was unanimously in favor of the defendant.

The trial Judge, in written reasons assigned for overruling a motion for new trial, declares the verdict of the jury found ample support in the evidence adduced, and that the alibi set up by defendant was established beyond a doubt.

From the verdict, and judgment based thereon, plaintiff appeals.

Ruling — The case is, undoubtedly, with the defendant.

The alibi set up by him is established. The evidence shows that while there was a collision of wagons on the evening in question, resulting in injury to plaintiff and damage to her wagon, it was not the defendant who was driving the milk cart which collided with her wagon. She was mistaken in her' belief that he was the man responsible for the injury done to her.

Some man other than defendant and some cart other than his, ran into the plaintiff’s-wagon.

The testimony does not make clear who the other man was.

In the darkness of the evening and the excitement incident to the collision, plaintiff, and those of her witnesses who identified defendant as the man, may well have been honestly mistaken.

Defendant swears positively he was not the man, and various witnesses positively testify to his presence elsewhere between six and seven o’clock on the evening in question.

These witnesses were able to fix upon, or identify, the particular evening by reason of the fact that it was the Monday preceding Mardi Gras.

Judgment affirmed.  