
    NO. 8521
    COURT OF APPEAL PARISH OF ORLEANS.
    ELLIS A. FITLER versus DENNIS SHEEN TRANSFER INC.
    Hon. J. Porter Parker, Judge.
   Dinkelspiel; J.

Plaintiff fil ., this suit aga-inst the defend nt in a twofold oapi-oi ;y, in his behalf and for the use end benefit of his minor ü -oj’.o.-r, Warreen, and represents -oh- t he in his own beh-.l-' f-r injury to his automobile is entitled to the sum of $341.00 . in behalf of his minor daughter for injuries suet-.-ins i oy her, in the sum of $5000.00, for this to wit*.

That on the 33rd of Ootober, 1930 his wife driving down in her o~r on Ch ties Avenue when at the intersection of St. Cirri-. = Avenue snd Thalia Street, a mule team drawing a wagon cv flo.t belonging to the defendant and driven by a negro driver ran into and collided with the automobile in which plaintiff's wife and daughter were seated; alleging further th?t s-id collision occurred and said injuries -.nd damages were caused by no fault or negligence on tbs part of the ohild or of the driver of the automobile or of any person or persons save that of the driver of the wagon and his employers; and was solely end entirely caused by che gross negligenoe, carelessness vnd vant of skill on che part of said defendant's driver; alleging further that the child Warreen between the t-ge of two and three y=.-rs, seated on the baok seat on the lei; h.;.ni side of the oar .vas injured by the pole of the w gon or float. It is further alleged that Mrs. F'itler was driving her c r very slowly and was prcoseding to cross Thtli; Street but before she oould cleor said str-et the driver of the wagon or float started again and the accident resulted; the injuries inflicted on the chill 'Jarreen >.rs e.-.ii-minuted fracture of the second ihsl'.nx of fch” leí; chu..b end the third phalanx of the left for-finger sr.d oontusion of the left elbow and several laeoerated wounds of the aoalp. Alleging further th->t under the City Ordinances petitioner's wife had the right of way.

The preyer was for the sum of $5349.00, $349.00 being for injuries to the automobile snd the rest for injuries to his daughter Farreen.

The answer is a general denial and a plea of contributory negligenoe.

This oese was tried before e jury and there was e. verdict end judgment in f;,vor of plaintiff in his own behalf for the sum of $349.00 and for the use or his minor child V/arreen, in the sum of $3750.00, with leg Interest from date of judgment end for costs and from this judgment defendant hes appealed.

Plaintiff in answer to appeal prays that judgment in fovor of Farreen Fitlor be increased to the sum of Five ThousEnd Rollers.

Plaintiff's witnesses were Mrs. Hall, the grandmother of the child who testifies substantially that the Car Ms going down St. Charles Avenue on the 33rd of October and just as they got to the corner of sj. Charles Avenue end Thalia Streets traffic was somewhat crowded, end defendant's wagon was believed to have stopped on the trsck and as the driver of the wugcn »M«á to v-cross ihsxxxxak my daughter ble.’; her horn, he did not notice it, the w-gon was coming and just as it get there the next thing the tongue in the wsgca pushed the child between the brae • of the cor; her scresms and my screams caused by daughter to lee.. V- ck to see what happened, she stopped the car; in the m=-utime the men pulled the tongue of the wagon out of the car and ran off so th-t I never saw what color he w-o and several gentlemen pulled the br:oes off of the child, one of them whs Mr. Aitkt....; s'":- t. "s on to testify to what ccurred. at the time, child was rushed to the Hospital, how she was <■■ ■ a, -cm the braces and she described th«t the ohild raí sit with her and wae holding the braoss when the wau. jT c ngue oama in the oar and whioh caught her hand and her a. between the braces, the braces were the post whioh held up the top 6f the oar, the ohild suffered considerably, her little finger was oru3hsd, the little finger on the left hand, together with the thumb on the same hand, were almost completely off -»nl were hanging baok on the hand; she further says thj't her daughter was e competent driver, had been driving the car for about a year, always careful.

On cross examination she in no manner altered or changed her testimony in chief.

Villliam Aitken, & witness on behalf of plaintiff, who wes present at the time of the .'■.ocldent referred to, goes on to testify, "I \'t> s ooming down St. Ch-.rlas Avenue ml there were just two cars ahead of me ani I saw a Dennis Sheen float crossing St. Ch-rlas Avenue snd Thalia Street, it was up to the street oar track, there is an incline there and the float went up -nd stopped on the incline end an electric oar was ayproaching, there was an auto coming out Thalia Street to St. Cherles end if hh-»d no; turned down his auto would have run into the fleet.

Q. Was th-r* n accident there?
A. Tes sir, the coligue of the float ran into the br-.ce si,, . rting the toe of the automobile end there was c. chili in the o=.ck of the vuto who h=.d her hand around one of the .r;c-s, h~r hand was crushed against the brace i :.d it leo., i v»ry b 1 nd I got out of my «xfasoñc£3c automobile and took bar to the Presbyterian Hospital; he goes on to testify that there was a lady driving the auto and also that there was another lady in the back seat, two children, one on each side; the driver of the wagon was a colored man; had his license in my memory Ijut I have forgotten and when Stasdsiis the driver got dpwn Thalia Street, he lashed his mules and turned into Pr-ytania Street going uptown, he was going fast.
0. Did you see any name on the float?
A. Yes sir, Dennis Sheen, it wag a read float with white letters.

Testifying further in reference to the float, he says he had notified the defendants, who were friends -of his but they admitted nothing, he desoribed the oondltion of the ohild and when asked what occurred when he first s-'W the wagon, he answers, "X saw the position of the wagon and it looked as though there would be an aooident, he was in the way, blooking the traffic and it looked like he was trying to get in the way of everyone and he slackened up feeling that he would driver through.

Q. What part of the Sheen wagon ooliided with the Fitler oar?
A. The tongue of the float.

On oros8 examination, giving an account of the float, the driver and the way the aooident happened, describing the float, the name of defendant on same, that he '.7ss convinced it was the property of defendant, drivent by a colored driver; amongst other parts of his testimony in referenoe to the handling of the float and hie conversations with the defendant in reference thereto, testifies thet the defendant said that no lioense number was given and th?t they did not have the name of the driver.

Being asked, q. Did jihey deny it \r- a their wagon when you told them it was?
A. I do noS think they did.

Dr. Cols who .Vcs the physician ./ho attended this ohilitestified that ths child h-id e I-soer-.ted wound of ths scelp, compound comminuted fracture of ths second phr-l-nx of the left thumb and two fingers of the left hf-nd, and when asked wlrt s. oor/....inuted fracture was, answers that the 3kin is broken ?ni the bones protuude outside of the skin, he treated the chilci for several months, 3he res suffering sprite a good deal, the wounded fingers looked bad, ■ was obliged to U3e ’nesthetio3 on several oooassions, th!nks th-t neither of the fingers will be able to p'-rform their natural functions; trie child would never be ’.ble to use the left hand os she formerly lid, his bill for services revidered •/-■s «vioO.OO, paid to him.

L. F. Uartin Jr. another witness for plaintiff saw the accident at the corner of St. Charles Avenue end Thalia Street, heard : ori',3h, then about forty feat from the. coiner, saw a vvvj.gor, Thinks it w.s single two horse wagon, .. nd there wes ;¡, oar cn his right -bout the center of the street, there w. s cn '..utcmobile in front of him shout thirty feet ahead of him and when he heard the crash, looking up saw an automobile uni wgon jammed together, that is the front of the v/egon had out somewhere into the automobile and by the t time the c r he v;s s driving got to the corner, the o?r struck by the •.;»gon kept on going ’nd the wagon kept going end I kept going myself, and then heard s. sor.eam end ran alongside of this o:-r v-nd jumped on the running board, the c=r going very slow, I pulled the oar out of neutral, brought ths car to ?. stop, looked in the rear *-nd .there iv=s little child with her • rm caught in the brsoe of the auto and I jammed it baok end took the child's arm out,

Q,. Iho do you mean never stopped?
A. The driver of the wagon did not stop, he kept on going, and I walked to the corner and asked some one to go and see who it was and he was not exactly out of sight, could not see the wagon at the next corner.

He describes the condition of 'the child, the injury to her fingers which were out snd fractured} the skin wa3 torn off some of them.

On oross examination this witness says when he saw the float and the rate of speed at which it was going, believed that an aocident would happen, otherwise he did not alter his testimony in chief.

The next witness was Mrs. S. A. Fitler, wife of plaintiff, mother of the injured child. She goes on to say she had been driving her automobile for about a year all over the City, throughout the prinoipal thoroughfares and had never met with an accident prior to this one and describing the aocident says that she was driving a car about nine o’clock in the morning, in company with her mother and two of her children, 3eated on the front seat at the wheel on the left hand side, her mother end the children were seated in the rear; she goes ,on to testify ■that happened on the morning in question snd she says: We were going down St. Charles Avenue at a very slow rate of spaed, and when we got to the corner of Thalia Street' the traffic was rather congested and I slowed down. This wagon was oomlng aoross St. Oh'-rles Avenue, aoross Thalia Street and as I approached the corner of Thalia X slowed and this wagon stopped on the oar track as he was going aoross, and as I was approaching down the avenue he oame down in the end of the car mashing the two bows together where my little daughter had her hand, and as soon as he struok her he pulled loose and whipped his mules and started to run out Thalia.Street) the baby screamed for help, I stopped my car and when I stopped Sy I jumped out to go to my baby's assistance, it took three men to ’pull this bow loose from her hand, and in the meantime these men oame up to assist us and oarried her to the Presbyterian Hospital; she was bleeding very muoh, we were -all oovered with blood, and the gentleman that oarried her to the hospital took his handkerchief and wrapped her hand to keep it from b'eing exposed until' we got there.

She testified that the moment she heard -soreams of her baby she put on the breaks and jumped out, when she first saw the vehiole it was approaching the St. ■ Charles Avenue oar traoks, she oould not desoribe whether it-was a wagon or a float and she went- on to testify: "As I crossed the wagon was on the oar traok and stopped and as I proceeded down St. Charles Avenue he had. stopped on the oar traok, and when I got nearly aoross Thalia ■Street he oame down on the back of the oar.

Q. Could you have avoided that accident in any way?
A. Ho sir, I oould not as the traffic was very bad and there were oars in front of me, and a oar oame out Thalia Street right in front of me.

She also testifies that she was going very slow, did not think- more than about five miles and hour; the wagon, struok the oar,-the driver whipped up his mules and ran out Thalia Street to-Prytania Street very fast.

On cross examination, whilst in portions of her testimony there evidently were some parts thereof, particularly in reference to what speed she was going and. possibly in some other minor particulars, this witness may not have been possibly as accur- te she was in her main testimony, nevertheless under the ciroumstsnoes, the difference in our opinioh is not matv-rial ^nd not worthy of quoting; she maintained her originsl statements in reference to where her car was and where the driver of the wa.gon had plaoed his team and insisted as she did in her original testimony that the driver was entirely at fault and that there was no other wagon or float save and ex-oept the one in question.

Plaintiff himself, Mr. Fitler, did not see the aooident but knew that his wife was a competent driver and testified to the accident which occurred to his child, tlBe bills he paid, the one to Dr. Danna, ten dollars, to the Presbyterian Hospital, $9.50,to Dr. Cole, 1350.00, and further testified as to the aooident and the cost of .repair to his automobile, which he paid.

All the bills paid by plaintiff were offered in evidence, together with the Ordinance of the City of New Orleans, Nos. 5338 and 5381, known as the Traffic Ordinance, and especially paragraph 1 of Article 1 and paragraph 8 of Artiole 1 and paragraph 8 of Art. 3.

Defendant's testimony, commences with that of Lafayette Sheen, and the point of his testimony was to show that at the time of this accident, the defendant was only operating one float whioh had two mules; they had other vehiales operated by four mules and spring wagons and the two mule wagon was drivdn by only one man who had been in their employ for many years, he describes the wagon in question, together with how they were loaded.

Q. State whether your floats have ever came to your yard in the evening with someone elee's sideboards on them?
A. Yes sir.

He also testifies that frequently the sideboards on their float have been lost, he identifies the letters in this record, written to him by counsel for plaintiff, ¡ir. Titche, together .vith his answers, and to question propounded by juror admits that his wagons are painted red with Dennis Sheen Transfer Company on them in White and that wss the standard color.

Joseph Polite, testified that he was the driver for the Dennis Sheen Transfer Company and that he had been suoh for twenty years; driving s two mule float and that the defendant had only one of these flouts rnd denies that he had an aooi lent on October 33rd, 1930 or that he ran into an automobile at St. Ch-rles and Thalia Street, never had an acoident, he had never crossed Thalia Street and St. Charles Avenue when he drives out to the Texas & Pacific; he goes out Canal Street to Camp, then to Thalia and then to the Tex?.s & pacific.

It would be futile and uesless to discuss thi3 testimony. It is evident to our minds, that the jury who saw and heard him did not believe his testimony, nor do wa. It is so full of contradictions and so utterly unreliable that it is not to be belived under any oirovuust---noes.

Joseph Simpson another witness for the defendant testifies to the same effect in reference to frequently losing sides of defendant's flo?.ts, without paying -ny attention to it; but knows nothing of this accident whatever.

Lawrence Jenkins, another witness for the defendant, the driver of one of their four mule floet3, only testifies to having lost sides of the float, knows nothing at all about accident in question end did not participate therein.

F. M. Sheen is Vice-President of defendant Company; he testifies that the Company has only one two mule sugnr float end only h-d one --t the time of the accident, which flc-'t was driven by a, oolored driver, who has testified in this case, by the name of Polite; he testifies how the wagdns s.re leaded, and unloaded, and th-t the sideboardá, describing them, «re frequently lost, and he has frequently seen sideboards of defendant, used by other transfer companies, but knows nothing of the accident in question save and except the letters offered in this reoord, between counsel for plaintiff and the defendant company.

He was asked the following question:

Q. In this interview with Mr. Aitksns — he is an soquaintance of yours?
A. Yes sir.
Q. You have known him for sometime?
A. Yes sir.
Q. Your relations are friendly with him?
A. Yes sir.
Q. When you calked to him about the accident, when he told you about the accident, did you not tell him that they eould not prove anything?
A. Ho sir, I told him rhat I did not have any record of the accident.
0. Did you not state to him that they could not prove anything?
A-. Ho sir, I =m positive that I did not.
Q. Did you not tell Mr. Aitkens that they did not have the number of your license?
A. Ho sir, Iasked him if he knew the number of the license.
Q. He told you no.
A. yes sir.

This virtually doses testimony of both plaintiff and defendant and the letters referred to in the testimony are made part of the record in this case.

These letters all and every one of them gave notice to the defendant company, of the time this aooident ooourred, the place where it ooourred, the circumstances under which it ooourred, the fa.ot that the negro driver had charge of the wagon, and ran into plaintiff's automobile, end gave ■ all the circumstances connected with the aooident, together with the injuries to the oar, and the child.

The reply simply advises that it is essenti&l- that the information asked for in the first letter be furnished; all subsequent ^letters ar'e to the same effect and- no’information of any kind was furnished by the gatkinitff gptnSiiSirr to/íefendagff; save and except that above referred to.

In the very able brief furnished by counsel for defendant, there are several important points which counsel states are essential in the determination of this case.

The answer simply acknowledged the reoeipt Of the letter in question, and requested that the name of the driver, and the lioense number of the vehicle, which caused the injuries be furnished, and the answer to that letter states the inability to obtain the name of the driver and gives the reason \yhy.

Amongst them is, first, whether or naxkfck not the float which caused the aooident, was operated by, or belonged to the defendant, and our answer to this question under the testimony, leaves no room for doubt, but tnau the float in question did belong.to the defendant, was. their property, was driven recklessly, carelessly, and negligently' by the driver, a oolored man, who when this aooident ooourred, drove his mules rapidly from the scene without paying the slightest attention even to the ocoupants of the oar, notwithstanding he must have heard the ' sorearns of the child who was injured, the soreams of the grandmother; .he drove his team away from the place of the aocldent, evidently knowing that he was the sole cause thereof *.nd wanting to esoape responsibility; doubtless thought this was the best method of his doing so.

The second question wss whether or net the accident w-s c:used by the negligence on the part of .the driver of the float, and we answer this in th.e affirmative. He oould e-sily hsve avoided this accident, from the testimony in this reoord end he failed to do so. The testimony of Mrs. Fitler, Hr. Aitkens end Mr. Martin leaves no room for doubt but whHt so fer as plaintiff is concerned there •as no negligence on the part of Mrs. Fitler, and oonvinc-'s us that the driver of the float as has been stated was solely and wholly at fault.

The third question of complaint was whether or not if there was any negligence on the part of the driver of the float, plaintiff's wife wee not also negligent in the handling of her car so as to constitute contributory negligence.

The answer to this is Identical and in line with the com.uen.ts made by us to question Ho. 3 and requires no further statement on our part.

The lest and final oomoleint is whether or not áxBoigEsiüSBSEi damages allowed are excessive.

In an examination of the authorities referred us by counsel for defendant, the esse of Blume against the City, 104 La. 345, was a case where there was a suit against the City for ten thousand dollars, caused by .an obstruction, in which plaintiff stumbled, fell and in the fall freotured and broke her right arm and the Court there held that notwithstanding the injuries reoeived the sum awarded, $3500.00, was amply sufficient and gave judgment for that amount.

Another case. Daly vs. Kiel, 106 La. 170, the amount of damages sued for was ten thousand dollars and the claim there was he suffered-greatly and was crippled for life, and had lost his means of support, the Court awarded a judgment in the sum of Fifteen Hundred Dollars although the Court m its opinion said -plaintiff might be limping or laming for the balance of his life.

In iklxxaxxa the case of Collins against Lewis and Company,111 La. 741, plaintiff met with an s.cciient and as e result of which he wss unoonsoious for several de.ys snd had to wear a. -oles-ss-r cast upon his head and neck for four or five months longer, and suffers from permanent dislocation of the fifth oervloal verterbrae and complete paralysis of one arm. The Court there rendered judgment in the sum of Fifteen Hundred Dollars.

And in Rossey vs. Lawrence & Hamilton, 123 La. 1053, where the Court for the total loss of the thumb and fcrsginger and partial loss of two other fingers and which rendered s left hand almost useless for practical purposes, a boy of thirteen was allowed Twenty Five Hundred Dollars.

There ere numerous oases cited in defendant's brief and others in our Suprams Court Reports which ;ould simply multiply authorities on questions of ‘.-images, particularly the amount thereof, without in <-ny way adding anything which would tender to throw further light or. this subject. If, 93 has been stated by-Courts of this end other St9tss, we were simply to follow our syitpethi.es instead of our judgment, we would be inolinéd to do that which we have no right to do.

A careful consideration of the questions involved, particularly in sc far as the 'mount of damage is concerned leads us to the conclusion that in so far es the judgment condemning defendant to pay plaintiff for his own use, for injuries to his iutcmobile, the sum of $349.00, same should be reduced by the sum of $35.00, leaving the amount of judgment, $334.00, so which plaintiff is entitled with legal interest from the date of judgment, and the judgment in favor of plaintiff, Ellis A. Fitler, in behalf of his minor child, Warreen Fitler, against the defendant should be reduced to the sum of Ttíc Thousand Dollars, with legal interest from date of judgment, costs of appeal to be psdd by Plaintiff and costs of the lower Court to be psdd by the defendant.

Judgment amended and affirmed*  