
    No. 3335.
    (Court of Appeal, Parish of Orleans.)
    FRANK MANCUSO, for the use of, etc. vs. JOSEPH DUTHU
    1, The record does not present a case made out with legal cer- • tairity,. but-one’resting on implications and inferences.
    January 11th, 1904.
    2. Attacks, even though successful, on defendant’s witnesses cannot avail the plaintiff who has failed to make out a case.
    Appeal from Civil District Court, Division B.
    Geo. Montgomery, for Plaintiff ^.nd Appellee.
    L. De Poorter and j. T. Nix, for Defendant and Appellant.
   DUFOUR, J.

.The plaintiff sues for damages to his minor son, alleged to have been caused by a brick thrown by defendant,

The injured boy and his companions at the time of the incident were not allowed to testify, owing to their extreme youth and their consequent inability to understand the nature of an oath.

That the defendant threw a piece of brick is not denied; that the missile struck the boy is not proved.

That the boy ran towards a lumber pile is apparent, but there is no satisfactory proof as to whether or not he began running when warned away from his wagon by defendant, or began running only to avoid the brick about to be thrown. .

The druggist who first dressed the wound says it might have resulted either from a fall or from a blow; the physician, who subsequently attended the child, does not give testimony of a nature sufficiently positive to settle the matter in question.

The record is barren of any definite information as to the exact place in the head where the wound was inflicted, and thus are we deprived of a means of ascertaining, in the light of and by comparison with the rest of the evidence, what was the proximate cause of the injury. .

In the present condition of' the record, we do not find a case 'made out with ’ legal certainty, but one resting on inferences and implications. " ■

The child may have been struck by the brick, or may have- fallen when running to avoid it; in such case recovery may be had. Or, he might have run when warned by defendant tó get off his wagon and before any brick was thrown, and in so running might have fallen and injured his head; in such case recovery may not be had.

Attacks, even successful ones, on defendant’s witnesses cannot avail a plaintiff who has failed to make out a case; were every word they uttered untrue, the plaintiff’s proof would still not warrant a judgment in his favor.

Verdict set aside, judgment reversed and plaintiff’s demand rejected as of nonrsuit at his cost in both Courts.  