
    No. 4907.
    (Court of Appeal, Parish of Orleans.)
    CRESCENT CITY STOCKYARDS AND SLAUGHTER HOUSE CO., LTD. vs. GENERAL CONTRACTING COMPANY.
    Estopinal and Collins for plaintiff and appellee.
    Geo. W. Flynn for defendant and appellant.
   GODCHAUX, J.

On the night of May 28th, 1908, plaintiff’s mule, one of a team drawing a delivery wagon, was killed by falling into an open trench excavated across the public highway by defendant under contract with the City of New Orleans, and this suit for the recovery of $248.00, representing the value of the mule and harness destroyed, etc., is based upon the alleged negligence of defendant in failing to place a red light or barricade at the excavation as a danger warning to the users of the street.

The testimony is an irreconciliable conflict and the determination of this disputed fact depends wholly upon whether the witnesses of plaintiff or of defendant are to be believed. The former’s witnesses, consisting chiefly of disinterested persons, deny that there were any red lights or barricades; and the latter’s, consisting almost wholly of its employees, affirm that these lights existed. The lower Court believed the disinterested witnesses in preference to defendant’s servants and employees and found for the plaintiff. Our examination of the record leads us to the same conclusion, and as the amount of file award in plaintiff’s favor is not questioned, fee judgment of the lower Court must be affirmed.

April 4, 1910.

Rehearing refused April 18, 1910.

Judgment affirmed,  