
    No. 4473.
    (Court of Appeal, Parish of Orleans.)
    DR. JOSEPH A. ESTOPINAL VS. TEXAS & PACIFIC R. R. CO.
    Question of fact only is involved in this suit which is one sounding in damages for personal injury. The damages awarded are reduced.
    Appeal from 28th Judicial District Court, Párish of St. Charles.
    F. Estopinal, for Plaintiff and Appellee.
    L. DePoorter, for Defendant and Appellant.
   MOORE, J.

This is an action sounding in damages for personal injuries.

The allegations of the petition are:

That on the 23rd of March, 1906, at about 8:25 P. M., while walking away from-a train of defendant company, from which your petitioner had just disembarked at St. Charles Station, in this Parish, petitioner was struck a terrific blow on the forehead just above the eyes with a lantern in the hands of a negro brakeman in the employ of the said Texas & Pacific R. R. Co. while in the act of signaling the engineer of the train from, which petitioner had just stepped off.
“That when struck he was quietly and properly directing himself towards his vehicle which awaited him at the station. That it is the duty of the said Texas & Pacific Railroad Company to protect its patrons and passengers from injury due to the want of skill, carelessness and gross neglect of its employees while in the discharge of the duties for which they are employed.
“That petitioner had no knowledge or notice of the fact that said brakeman was about to signal the engineer of the train. ■ ’
“That on account of said injuries, improper treatment and suffering, physical and mental, he has sustained damages in the full sum of two thousand dollars.”

_ The answer is that if plaintiff was injured at all, which is denied, he was injured through his own want of care and his own negligence.

There was judgment in favor of plaintiff for the sum of $300.00 and the defendant appeals.

The facts are that on the evening of the 21st of March, 1906, plaintiff was a passenger on the west bound passenger train of defendant company, having boarded same at Gretna, his destination being Hahnville in the parish of Jefferson.

' The train having stopped at said station the plaintiff alighted, the train porter having preceded him and placed on the ground a small bench or foot box as an additional step for safeguarding the alighting from the car. The porter then stood off some few feet from the car steps and then as the plaintiff left the steps and proceeded on his way, the porter suddenly swung his lantern as a signal to the engineer to “go ahead,” striking the plaintiff a severe blow on the head which stunned him and inflicted a wound about three-fourths of an inch in length.

That the injury was the result of gross negligence and carelessness on the part of the porter is conclusively established. The injury, however, was not serious, although painful, and the wound readily yielded to treatment.

The plaintiff was confined to his bed for-one day and to his home for two days longer. After that he resumed his usual vocation.

November 23, 1908.

Considering all tbe facts and circumstances in the case we •are of opinion that the amount of damages allowed is out of proportion to the injuries inflicted. We are, therefore, constrained to reduce it to $150.00 which in out opinion is amply sufficient.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the-amount thereof to the sum of one hundred and fifty dollars, and as thus -amended the judgment is affirmed. The costs of the appeal to •be taxed against the appellee.

Estopinal, J., recused.  