
    No. 12,189.
    Michele Sciortino vs. Crescent City Railroad Company.
    This case involves a question of fact. The defendants' car injured a child of tender years on its track, and there was an entire absence of negligence on the part of defendants’ employees. The accident was unavoidable.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.
    
    
      Benjamin Riee Forman and B. R. Forman, Jr., for Plaintiff, Appellant.
    
      Farrar, Jonas & Kruttsehnitt and Hewes T. Gurley for Defendants, Appellees.
    Argued and submitted November 4, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover of defendants the sum of ten thousand dollars damages, for the use and benefit of his minor child who was injured by defendants’ car.

The child was eighteen months old when the injury was inflicted. He was on defendants’ track.

The car was going at the rate of five miles an hour. It was forty feet from the child when it was discovered that the child was on the track. It is in evidence that an electric car going at that rate of speed can only be checked or stopped not at less than that distance.

The testimony is that the motorman did everything in his power to avoid injuring the child, after he saw it on the track. A passenger in the car gives the most satisfactory account of the efforts of the motorman to stop the ear. There is no contradiction of his testimony. The mother and brother of the child attribute the accident to the fact that the motorman was not looking “straight down,” or he would have seen the child in time to avoid the accident, but they say he was looking forward, which was the proper direction for him to view the track.

The mofcorman saw the child about as soon as it was practicable for him to do so, which was about the time the mother saw the child on the track and screamed to the motorman to stop. We are satisfied that the defendant company was in no way negligent, and that the accident was unavoidable.

Judgment affirmed.  