
    Salvadore E. Constanza- -vs- N. O. Railway & Light Co.
    No. 7824.
    Court of Appeal. Parish of Orleans.
    Dlnkelsplel. J.
   Dlnkelsntel- J

This action is 'Brought by plaintiff against defendant based on the following facts as we gather them from the record:

That on or about 13th. September, 1916, at about the hour of 8 o'clock in the morning, plaintiff had his mule and wagon standing on the gutter edge of Tumain Street, between recatur and Chartres streets, where it had a right to be, the wheels of the wagon being chained to prevent it's movement until plaintiff was ready to drive off; that while the mule and wagon was so stationed at this point, Tohoupitoulas car Sfo. 89, owned, used and operated by defendant, came out Dumaine Street from recatur street going towards the woods and as it neared .the mule and wagon tne motorman of the oar caused the fender, in front of the cay to suddenly and violently drop, wiich sudden, unusual ’and unreasonable action , did freighten and. scare the mule, causing the mule to jump ir. front of the oar inflicting damage upon plaintiff's property as hereinafter described.

flair-tiff further alleges, that he left the mule and wagon in charge of two men, and he had observed and taken all proper caution and oare, therefore he was not guilty of negligence.

That the accident was caused solely by the abrupt, careless and sudden manner in which the mctorman of the oar negligently dropped the fender by lifting and elevating it on account of obstructions and repairs being done, at tne time, on Decatur Street, and upon which Street the car had been running just before turning into Tumaine Street, that said fender should have keen lowered by the motorman In a careful manner and not In the suden, abrupt, violent, unreasonable and unnatural manner in which it was done thereby avoiding the injury and damage.

That plaintiff suffered damages, itemizing his claim as follows,- Loss of MuIbb, $300.00. Doctors services $17.00. Damage to wagon, $16.65. Loss, being with out a mule and wagon, $73.50. Eamage to harness, $5.00. Total, $412.15. for which amount he prayes for judgment.

The answer denies indebtedness to plaintiff; also the truth of the flacts alleged in the 4th. 5th. 6th. 7th. 8th. and 9th. articles of the petition, and then goes on to assert; that on 12th. “September, 1916, about 8.30 o’clock, in the morning, plaintiff's mule was attached to a wagon standing on Eumaine street, near Deoatur Street, and as one of defendant's oars was about to pass the team, the mule suddenly shied on to the trac# in front of the car, at a time when it was impossible for the motorman to stop the car oweing to the brief time and the short distance within whiok to act.

Further answering, defendant avers, that the mule had been left on' the street with no one in charge, which oonduot is contrary to City Ordinances in such case made and provided, and that the owner thereof was guilty of negligence in so leaving the team with — out a driver Or anyone to guard same against accident. Hence, defendant prays for dismissal of the suit. The testimony, in this case, consists of that of plaintiff, Dr. Vincent Leroca, J. F. Bollwinkle, Vincent Randazzo, Henry Smith, Hrs. William Fisher, Edward Larrieu, Edward Raffo and Charles F. Fuppert, and they contradict one another on material and immaterial statements., and we 3es no good r¿asen way any should be quoted.

Ti.e plaintiff and l.is witnesses, asserted and ts3tiii led to tie facta 3et up in i.is petition, ti.ey swore ti:at tie mule and wagon together with the harness was injured just ae claimed, through ti.e lifting ox the fender, without any cause, violently striking the u.iile in vital parte, causing ti.e injury as claimed. There is no dispute as the amount of the value of the mule, wagon and harness etc., the itemized claim is complete and satisfactorily accounted for. Or. tue other hand, several witnesses and the motorman, on behalf of defendant company, wnilst not ae positive in their testimony, 'oy any means, as those of plaintiff and his witnesses, nevertheless assert contrary.

The $Si»l Judg», after seeing and hearing tne wit-neeees, in an able written opinion decided in favor of plaintiff, and we adopy that opinion as our opinion, which is as follows;-

"This is a suit for damages resulting from the collision of a street car and plaintiff's mule and wagon.
The evidence is very conflicting. The plaintiff and his witnesses swere that the mule ivas facing the river; that tne mule received a blow from a broken wagon shaft which resulted in the death of the animal; that the damage to the wagon and harness was substantial.
The motorman and two witnesses,swore that the multe was facing the rear of town, which must be untrue for the reason, that a blow inflicted, both vehicles pointing in that sireo'tion, would simply shove the animal and vehicle aside, with-serious damas®. These witnesses testified that the wagcn was not broken, that no damage was done it or the harness. I beleive this incorrect; that tne witnesses who so testified were non-ohservant, in other words, I feel, that the accident occurred practically as stated in the petition and that defendant is liable for loss of the mule and for damage to wagon and harness Judgment for plaintiff. Rule ¿300. Cootor fees, ¿17, Wagon, ¿16.65. Harness, ¿5. — ¿336.65, *
For the reasons assigned by the Judge a quo, in the written opinion here quoted, it is ordered, adjudged and decreed, that the judgment of the lower Court, be and the same is hereby affirmed Fefendant to pay costs of both Courts.

-Judgment Affirmed-  