
    James H. Dudley v. Canal Bank.
    Principals are responsible for the damages caused by the neglect and misfeasance of their agents.
    Where a jury has not awarded such damages as the evidence establishes, the Supreme Court will increase the amount.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      W. C. Hamner, for plaintiff,
    contended: This is a suit to recover the value of a horse killed on the Shell Road, through the improper conduct of appellants.
    
      The petition sets forth two causes of complaint against the bank: first, the violation of the custom of the road in shutting the toll gate at an unusual hour ; an(^ secon(j) ¡n having a bar instead of a gate at the toll gate. The proof as to the custom of the road as to leaving the gate open, is fully established by six or seven gentlemen who have ridden on the road two or three times a week for many year's.
    The testimony also establishes that the bar thrown across the'road'and painted white, Was unsafe and dangerous; it could not be seen when closed. The jury gave a verdict for one hundred and fifty dollar’s. The plaintiff claimed live hundred dollars as the value of his horse, and proved his value to be four hundred dollars, he having refused that sum for him. See Bunce’s testimony. He joins the appeal and asks that the verdict of the jury be amended by giving him four hundred dollars, the value of his horse.
    The defence before the jury was, that there was fault on both sides, and therefore plaintiff could not recover. No proof was produced by defendants to show that the plaintiff was at fault; it is attempted to be deduced from the fact of the killing of the horse and the starting of the gate post. The essential testimony upon this point is that of Captain Stockton. He says that the beam was indented from one-eight to one-fourth of an inch, and that the post was started from two to three inches at the surface of the ground. From this result, defendants conclude that plaintiff was a modern Jehu. On the contrary, if any inference can be drawn from it, it is that the pace was-moderate; for 3500 pounds, about the weight of the horse, cab and riders, thrown with a great velocity against such a structure, would have knocked it to the earth, and dashed the riders over the horse’s head; but their own witness who was on the spot and examined the matter, says no idea of the speed could be had from the accident.
    Then how Was plaintiff at fault, unless riding on this road be a fault. He made the distance from the lake, 5| miles, in about an hour. Waggerman’s testimony. The superintendant, Capt. Stockton, says he generally made it in forty minutes, and that he did not consider ten miles an hour fast driving or violation of the ordinance. Plaintiff was a cautious prudent driver; very careful of his horse; the drive was at night; nothing on the road to excite horse or rider; four friends in his waggon; no excitement; no urging of his horse; knowing the gateway large, sixteen feet; never having known the gate shut; no requisition of the road or necessity to pass the gate at less speed than other parts of the road, the speed being moderate. Then, in what was he in fault ? It is confidently answered, in nothing; he was not at fault; he used common and ordinary caution. But ah ! it is said his horse was sweating, and that he Mowed. Wonderful, this, on a warm spring evening I But, says the toll-gatherer, the accident occuiTed at a quarter past eleven ; that plaintiff acknowledged it was his own fault; that plaintiff told him he stopped about one hundred yards off, and seeing nothing started again. This amounts to saying that plaintiff deliberately drove his horse against the gate to destroy him, and then told witness he had done so. This witness understood and spoke English very indifferently, and it is therefore charitable to think that he was rather mistaken than swore falsely. His interest was to protect himself. He says he closes the gate when he feels sleepy. Is the life and property of the public to be exposed in this way with impunity ? From the capricious feelings of a public agent, the custom of a thoroughfare as crowded almost as a street is suddenly violated and the property of the citizen is destroyed, and his life and that of his friends greatly endangered. I am sure this court will not justify such conduct; will not excuse such neglect or wantonness. It has been attempted to make plaintiff bear the sins of all the rash and violent driving on this road. The police has been searched for testimony; superintendant and toll-gatherers brought in; the witnesses of plaintiffall attempted to be made wild, daring, wrecldess drivers; all, all the wrong things and accidents upon the road brought up and plaintiff made to bear them. It will not do. We have nothing to do with these things. We were riding, as any one has a right, quietly, at a moderate speed, and unsuspecting of hindrance, when by the unusual and unexpected conduct of the defendants, our lives and property were alike hazarded. The coui-t is therefore prayed to change the judgment to $400, instead of $150 as the value of the horse is shown to be that amount.
    E. A. Bradford, for defendants,
    contended : The facts of this case and the usages of the road in respect to the toll-gate, are shown by the testimony of Captain Stockton, Marcellin LeBlanc and James Robilaille.
    
    
      The defendants submit the case upon the following points : 1. That nothing in the record shows any fault on the part of defendants, but that the accident was solely attributable to the fault of the plaintiff himself. 2. That at the utmost, it can only be held that there was fault, or want of care, on both sides; (and such appears to have been the opinion of the jury, as indicated by a verdict which was clearly a compromise verdict;) and in such case neither party can recover damages of the other. Myers v. Perry, 1st Ann. 372, and cases there cited.
   The judgment of the court was pronounced by

Slidell, J.

This is a suit to recover the value of a hoi’se, killed on a road called the Shell Road, through the alleged fault of the defendants, who, it is complained, violated the custom of the road by shutting the toll-gate at an unusual hour, and had, instead of a toll-gate, a bar which was not easily disceinible at night. The hoi'se struck his head against the bar and was thus killed.

We consider the testimony as pi-oving that it was not usual to have the road closed at that time of the night; that the plaintiff had no reason to expect such an obstacle ; and that it was one not easily discernible at night. We think, also, the testimony strongly preponderates in favor of the proposition, that the plaintiff was not di-iving at an indiscreet rate, and did not, by imprudence on his own part, contribute to the disaster.

The only objection which we find to the verdict is as to the amount of damages. The appellee, in his answer to the appeal, demands an increase of the amount awai-ded; and, we think, under the evidence as to the value of the horse, he is entitled to a higher assessment.

It is therefore decreed, that the judgment be so amended as that the plaintiff recover from the defendants the sum of $300, with costs in both courts,  