
    NO. 8796
    COURT OF APPEAL PARISH OF ORLEANS.
    NICHOLAS ALPHONSO versus THE HOTEL GRUNEWALD CATERERS INC. and GEORGE FORSCHLER, in Solido.
    
      
    
   Dinkelspiel; J.

The substantial allegations in plaintiff's petition ai that he was engaged as a candy vendor, having in his possession, selling oandy, a oar$,whioh he w-s pushing along Oonti Street ¿bíjüksh going in the direction of the river in the block between Royal end Bourbon Streets in this city, end that he was run into ;nd knocked down by a horse end wagon belonging to the Grünewald Laundry, whioh yí£.s proceeding in the same direction on Conti Streep but was behind your petitioner, and that just prior to striking petitioner and his oert, the Grünewald Laundry Wagon was run into end struck by an automobile v?hich was also proceeding on Conti Street towards the river, and was the property of defendant, George Forsch-ler, and was then in charge of defendant's employee acting in the ,-oope of hie employment. This accident occurred on December 5th, 1931, and caused petitioner's wagon to upset, destroying the wagon, i cs contents and injuring petitioner, particularly his -hands, end that because of s, id injury he had not been ¡able to work and for the loss of oandy, his claim for Doctor's bills and the injury he sustained he filed this suit against both The Hotel. Grünewald Cat-, erers Inc., and George Forsohler, claiming demages in the sum of $5337.00 with legal interest from judicial demand.

To this ^sfctiiOHBXxCis petition there was first filed exceptions thvt same -was too vague ‘.nd indefinite, and further that said petition disclosed no right or cause of action. The exceptions being overruled, answers were filed by the defendants.

_The defendant, Forsohler, denied any indebtedness due plaintiff for causes cited in the petition, admits the injury hut denies the extent thereof, and proceeding to answer further, substantially says, that the maohine driven by his chauffeur was being -driven on Conti Street between Bourbon and Royal Streets, at xsjasssl a speed of from four to five miles a.n hour and further averring that in front of his machine and proceeding in the s'ame direction on Conti Street, were a horse end wagon being driven along the center of the Street at a slow trot, and near the South ourb and between the wagon and cmrb plaintiff was propelling a email oandy vendor's handoart; and alleging further, on oato'nlng up with the wagon and handoart, defendant’s chauffeur sounded hie horn as a signal preparatory to passing to the left of the wagon; the driver of the wagon thereupon pulled over to the right and defendant had almost oompletely passed by when either the wagon driver sixths feeding that he had pulled over too near to the candy oart pulled on the left rein and pulled into the right side of the defendant's automobile, or the horse shied to the left; that the left right hub of the wagon struok the right rear fender of defendant's automobile, the jolt throwing the horse and. with him the wagon against olaintiff' s- oart; snd further alleging that the automobile was being driven at a very slow speed snd in a oareful xtii manner; that said automobile was passing the wagon On the left -in acoordenoe with lagál requirements; that the oolllssion between his automobile and the wagon was in no way due to any negligence or went of skill on the part of his chauffeur, end that any question of negligence and responsibility in this case lies between plaintiff and the owner and operator of the horse and wagon. He prays that there be judgment in his favor and againet plaintiff, dismissing plaintiff's suit in so' far ?s it is against this defendant, with oosts.

The answer of the Hotel Grünewald Caterers Ino*, de*. nies all the allegations contained in plaintiff's petition, exoept that it is a corporation domiciled in the city of Hew Orleans; denies that the driver of the wagon ran into end knocked down the plaintiff,denies that the plaintiff was near the righth'-uid ourb at the time he was struok, averring that the automobile owned by George ForsohlaSr and operated by his chauffeur, struok the wagon owned by defendant, knocked same up against the oandy oart of plaintiff, and alleging Í35&1 the true cause of the acoident wa3 due to the negligence and carelessness of the driver or chauffeur in charge of the automobile which belonged to the defendent firstly, which said driver vís.3 at the time of the accident the agent, servant or employee of said Forschler, acting within the scope of bis authority and in the course of his employment for the said Forschler, end that the said 'driver or chauffeur of the said automobile wes not exercising due c.-re end caution at the time of the accident, end did not .have hie automobile under control, and simply ran into the re®r part cf defendant's wagon. They finally pray for judgment dismissing plaintiff1 a suit, for costs 'nd for general relief,

An ex&min-'ticn of,this record, and quoting only such portions n-f it ts we deem applicable to the facts in this case, the testimony of the driver of the Grünewald Hotel wagon, satisfies us that he was struck by the -;utomobile when he was going towfris the river between Royal end Bouibon Streets; that his wagon was in the center of the street on the downtown side and that he was pa«sing r man with r candy wagon, cnd that there w's an automobile parked, fnd th*t the automobile that struck the w'gon wcs on the leitht-nd side --nd thr-t the fire/fc knowledge he h-d v? e that it knooked him br.ck and hit his arm c-n the side .grabbed Ms horse of the wagon which holds the cover up, .and he/ end in doing so broke the shaft; the horse got frightened and he was struggling with the horse. In reference to whet occurred to the candy man, he goes on to say that the plaintiff was in the rear, shoving his little push oart "-nd the only way that fc* got hurt was his wagon upset him, and when this v/itness sew him he was holding his arm rnd si id his arm wes hurt.

On cross exímiuetion he says that hie horse never struck the candy men and whet h:^p.ned wf s th.t the 0 nfty man wes knocked back, the candy spilled out into the street, s-lso that e. portion of the broken glass on th-¡ W'gon vir. s- in the street,

The witness, ?hilips, wh; w.’3 the chauffeur for the defendant, Forsohler, describing what occurred at the time of the accident, was asked:

Q. Did the automobile hit the horse et all?
A Ho sir, the automobile did'not touch -the horse?
Q. Then if the automobile did not touch the horse, how in the world could you get it past unless the horse swung in front of you? In other words how could that wagon have got up where it could run into vour automobile without the horse swinging over towards youil
A. He did olose in on me, I had delivered the front part of my machine with the rear p&rt of the ws-gon with safety, when the rear / part of the automobile oame in conteot with the front part of the wagon thats how he closed in on me, and thats how I hsid room enough to get that far without any trouble at all.
Q. If .you had room enough to get -past him end you he-d got your automobile so that the rear of .the automobile was opposite the •‘front EfxihKini wheel of the wagon, in order to oillide with you the horse must have swung over, shifted to the left or toward the downtown side, must he not?
A. Yes sir, he closed on me.
Q. And yet you didn* t hit it?
A. I didn't hit the horse. Ho sir, . didn't hit the horse.

The testimony of Dr. Love, who is r practicing physioi-? in the ci-ty of Hew Orleans, and who examined plaintiff's hands, swears that he found a contusion on the right hand which upon being ex-rv,yecL showed no evidence of fr-cture; he sent plaintiff to Dr. Henriquss for ex-ray examination, and Dr. H^nriques reported tnrst there was no evidence of p, fr-aobure in the picture taken by hi®; Dr. Love further testified that the hand was badly bruised but he could not make out the injuries beyond the bruising of the Soft parts, without injury zo the bone. His fee for attending to plaintiff was ten dollars, which was paid; also the fee of Dr. Henriquee, seven dollars for the -ex-ray examination/

The plaintiff himself was a witness in his own behalf, and testifies substantially that he met with an accident on Conti Street near Royal Street; he was''going to North Peters and Canal Streets with his wagon, and behind there was a wagon and the automobile came froan Bourbon Street in fast running, stndxkaac&sii and the automobile ran into the wagon and the horse and wagon were thrown against him; he testifies that the horse hit him and knocked his wagon oyer and hit him on the right side of his hip and his index finger of the right hand; vuat he was out of wcjrk for two months and.ten days; that he could not hold his hand on the wagon, that at the ti»o «f the accident he had one hundred end twenty pounds of candy in his cart which he sola at thirty oents per pound, that Ms wagon oost him thirty five dollars, the showoase twelve dollars, and the wagon was so completely broken he could not fix it; his stook was entirely destroyed, it was during the Christmas week and he was making from seven to nine dollars s. day profit. He could not speak English .and was abo&t sixty one years of age and had. not been able to do work_of the same kind for several months.

the deieuaant, Forsohler, being examined as a witness in this oasé, testified that he was in the automobile at the time of the accident to plaintiff occurred. He- says "X was sitting in front with the chauffeur; we were coming in from Bourbon Street, we got in Royal Street, this man with hie esndy wagon was standing in close to the curbing".

Q. Uptown curbing?
A. On the uptown curbing; and the Crunewald Caterers' wagon in the center; we were coming ahead and there was just enough room for us to drive through and my chauffeur blew his horn and We .were half wxyxxktax way through,-'with the automobile when the wagon swerved towards us oaúsing his front hub to strifes my hind fender proving that we were almost through; there was no damage done to my oar or the wagon, we stopped immediately, -we were going five miles and hour and we stopped right 'ih' .front of the wagon and the horse swayed oyer , he tried to catch his wagon so thats how he got his band hurt. Witness took the patient to the hespitfel end the doctors there said there was nothing the matter with the hand, it might have been a little sprained.
Q. Bootor, you say you were only going four or five miles en hourj how do you aooount for that?
A-. Because I have an expert ohauffeur, it is a one wgy street, and there were three vehicles; there was just' enough space for us to go through; I never allow him to go fast.

We have thus endeavored to state what we believe to be the substantial part of the testimony in this record, and we are satisfied that the Grünewald Caterers laundry wagon oould not and would not have hit plaintiff's oandy wagon except for the faot that the automobile of Mr. Foreohler, the other defendant, in attempting to go through by an automobile whioh was parked near the accident, the laundry wagon, and the oandy wagon, took chs.noes to get through a very narrow space and in doing so was not successful; that if the automobile# had not been driven in the manner testified to but had. waited until both the plaintiffIs wagon and the Bxunewald laundry wagon had gotten out of the way, the accident would nevery have ooourred, but as it was, whether driving élow or not, in the narrow spaoe between the wagon and the auto, ' the accident ooourred, She wagon being a olosed wagon of oourse the driver oould not see, except in front of him. The accident was very unfortunate to the plaintiff in this oase, who in the o.spdy business with a cart on which was a glass oase containing candy made his lining; the oftrt wee destroyed, the oandy llxnt* of no earthly use; the hand of plaintiff was injured end from the testimony, we are satisfied that plaintiff was inoapable of working and we have fixed, the time of Ms. being ill at twenty days .and She amount that he is entitled to for that time at ifhree dollars a day Would make the sum Sixty Dollars; his medl-iJal M&jfc amounted lo Seyeotrae bollare;; *r$' place the value of tlie wagon end the glasé at fifty dollars; the oandy destroyed thirty dollars* and for the suffering and pain which plaintiff ssSis. had; unable to work, out of business, we think One Hundred and Fifty Dollars a .ditional is a reasonable allowance.

Tie are satisfied that plaintiff has made out his case against the defendant, Forschler, end that the Grüne-wald Caterers Inc., are not liable.

For the reasons assigned, it is ordered, adjudged end deorsed, that the judgment of the Court'aquo be and the same is annulled in so for as condemning the Hotel Grünewald Caterers Inc., in solido with George Forschler, and th°t there be judgment in favor of Bichólas Alfonso and against George Forsohler, in the full sum of Three Hundred and Seven Dollars, with interest at five per cent per annum from judicial demand.

It is further ss ordered, adjudged and decreed that plaintiff, Nicholas Alfonso, pay the cost of this appeal and that defendant, Georgs Forschler pe.y the oosts of the lower Court, and as thus amended, judgment affirmed.

Judgment amended in part and annulled in pert.  