
    (63 South. 395.)
    No. 19,682.
    ANDERSON v. NEW ORLEANS RY. & LIGHT CO.
    (Jan. 6, 1913.
    On the Merits, Nov. 3, 1913.)
    
      (Syllabus by the Court.)
    
    1. Appeal and Erroe (§ 797*) — Motion to Dismiss — Time fob Making.
    As the acquiescence in a judgment may take place at any time, so the motion to dismiss the appeal on that ground may be made at any time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. § 797.*]
    2. Appeal and Ereob (§ 158*) — Acquiescence-Payment.
    A payment, under a judgment, which is made without the knowledge or consent of the party condemned, is not an acquiescence by him in such judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 973-975, 977; Dec. Dig. § 158.*]
    On the Merits.
    3. Appeal and Ebeoe (§ 1011*) — Decision— Conflicting Evidence.
    In cases where the evidence is conflicting, the appellate court will affirm the judgment below when not clearly against the preponderance of the evidence.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]
    Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.
    Action by Frank Anderson against the New Orleans Railway & Light Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    R. B. Logan and Michel Provosty, both of New Orleans, for appellant. Dart, Kernan & Dart, of New Orleans, for appellee.
   On Motion to Dismiss Appeal.

MONROE, J.

The appeal herein was lodged in this court on November 25, 1912; the answer and motion to dismiss was filed on December 7, following — the ground relied on for the dismissal being:

“That plaintiff is without right of appeal, for the reason that he has acquiesced in the judgment rendered against him by paying the costs incurred by defendant, for which he was condemned by the judgment, as will appear from the document hereunto annexed.”

The document annexed is an affidavit, by a member of the law firm by whom plaintiff was represented in the district court, which reads:

“That his firm represented Frank Anderson in the suit brought by said Frank Anderson against the New Orleans Railway & Light Company. That he prosecuted said suit as attorney for Frank Anderson, and, after judgment had been rendered rejecting the demand, the deponent notified said Frank Anderson of said judgment, and thereafter paid and satisfied the costs expended by defendant in defense of the said suit. That said costs were paid on July 15, 1912. That Anderson knew nothing of affiant’s action, and affiant paid costs because he was surety on bond for costs and was liable therefor.”

Appellant by other counsel suggests that the motion to dismiss was filed too late, and that he is not bound by the action of his former counsel in the premises, because it was taken without his knowledge.

We are of opinion that, as the acquiescence in a judgment may take place at any time, so the motion to dismiss an appeal, on the ground that it has taken place, may be made at any time. We are further of opinion that a payment under a judgment which is made without the knowledge or approval of the party condemned is not an acquiescence by him in such judgment.

The motion to dismiss the appeal is therefore overruled.

On the Merits.

LAND, J.

This is a suit for damages for personal injuries, and the cause of action is stated in the petition as follows, to wit:

“That on or about July 20, 1910, at about 5 p. m., your petitioner, together with his partner, Philip Thomas, signaled car No. 027 of the Coliseum line going uptown to stop on Magazine street and the entrance of the Audubon Park, in order to permit petitioner and said partner to board the said car. That the said car slowed down, and as it was about to stop petitioner’s partner got on ahead of petitioner, and petitioner grasped the handle bar to get on, but that the conductor of the car, before petitioner could safely get on, signaled the car to go ahead, and the car suddenly started before petitioner was safely on the ear, and threw your petitioner to the ground and inflicted the injuries hereinafter set forth.”

The defendant pleaded the general issue and contributory negligence, in that if plaintiff was injured at the time and place as alleged, he attempted to board the car “while it was moving so rapidly that it was evident to any one of ordinary understanding that it would be imprudent to make the attempt.”

The case was tried before the judge below, who rendered judgment In favor of the defendant. Plaintiff appealed.

The crucial question of fact in the case is whether the plaintiff attempted to get on the ear while it was in motion. The evidence is conflicting on this point, and we are not ablé to say that it preponderates in favor of the theory that the car had stopped. According to the allegations of the petition the car had slowed down and was about to stop when Thomas got on board. Plaintiff was immediately behind Thomas, and seized the rear grab handle with his left hand. Thomas testified that the car made a snatch or jerk, and then moved four or five feet and came to a stop.

The petition alleges that:

“The action of the conductor in signaling the car to go ahead was the sole cause of the accident.”

The preponderance of the evidence is clearly against the assumption that any such signal was given. The conductor and motorman testified that no such signal was given, and the vague statement of the plaintiff is the only testimony to the contrary. If any such signal had been given, the car would have moved forward until arrested by a.stop signal from the conductor.

The testimony of the plaintiff and of Thomas as to how the accident happened'is contradicted by their written statements, given a few days later to a detective in the employment of the defendant company.

The burden of proof is on the plaintiff to make out his case with reasonable certainty, and the presumption is that the judgment below is correct.

In cases of this kind the Supreme Court will not reverse the judgment below unless clearly against the preponderance of the evidence.

Judgment affirmed.  