
    NO. 8510
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. DOMINICK TRENTECOSTE versus FRENCH MARKET ICE COMPANY.
   Dinkelspiel; J.

This is a damage suit.

Plaintiff avers that on the 37th of April, 1930, at about half past eleven o'clock A. M. while she was crossing Decatur Street at the oorner of St. Ann Street, proceeding from the Lake Side of the street to the KtXBxStils River Side, an loe wagon of the defendant struok her, knooked her down and spun her around so that the wheel ran over her foot; that she was sent to Charity Hospital and there treated for "orushed injury of both feet and kKSKHXxkul lasoeration of toes"; that the orushed tissue and loose nails were removed and she was then taken to her home where she remained in bed for two weeks under a dootor's treatment and was then sent baok to the Charity Hospital, where she remained from May 13th, 1930 to June 8th, 1930; and that she still suffers great pain, for which she olaims defendant is liable in damages.

An exception of vagueness was filed and exxx overruled.

The answer of the defendant is virtually a general denial, together with the allegation that the accident resulted through the contributory negligence of plaintiff in running out in front of the wagon and that she aggravated her injuries in refusing to submit to an injection of tetanus antitoxin.

a judgment for plaintiff in the sum of 11075.00, from which judgment defendant appeals. The trial of this matter before a jury resulted in

A short resume of the testimony in this case, without endeavoring to quote the whole thereof, but only such portions as in our opinion are pertinent to this case, show that plaintiff, in company with a Mrs. Collins, on the day mentioned in the petition, was going to the French Market and when these ladies got to St. Ann Street and were about to oross Decatur Street at the corner of these streets and when they got to the middle of the oar-traok they had to stop to let several automobiles pass on the car-traok nearest from the River and when they started to. go across, the witness Mrs. Collins testifies she heard a soream a,nd looking around saw plaintiff under the ioe wagon, she testified further that they were standing and waiting for some automobiles to pass along and that plaintiff was standing right baok of witness and the next time she saw her, turning around, she was under the ioe wagon; that the wagon was about a half blook off and coming as hard as it oould go, there was nothing in the way to obstruot the view of the wagon, plaintiff and the witness were standing perfectly still when the ice wagón struok her, the animals were restless and when witness saw the baok wheel was going over plaintiff's feet she tried to move$ did not succeed, could not succeed, could not budge, and subsequently after being picked up plaintiff was sent to the Charity Hospital for treatment.

On oross examination si this witness did not •in material points alter or ohange her testimony in chief.

The plaintiff testifies in her own behalf, virtually confirming what Mrs. Collins, the prior witness iSK had sworn to and giving at length her great sufferings from this accident, charging in her testimony substantially that she did everything it was pos- * sible for her'to do to avoid the accident, which oould have only been avoided by the driver of the wagon; her treatment at the Charity Hospital, the result of injuries subsequently, at her home, and her doctor Meroux further testified of the injuries to the toes this woman had suffered, describing virtually the loss of the big toe and the orushing of the others, treatment he gave plaintiff.

The defendant's main witness, the driver of this wagon, Pendergrast, describing the accident in question, substantially states that plaintiff in crossing over the street, coming by his mules, frightened them, that he did everything that he could to stop 'the animals, that he was going at a very slow rate of speed and that it was entirely tne fault of plaintiff in endeavoring the cross the street, that this accident occurred.

Daniel Mendel, swears substantially that he saw this entire affair and in his testimony says, amongst other things, that plaintiff was on the sidewalk at the time, he desoribes just where the wagon was and the wagon was about the doorway of a grooery store near the aooident and plaintiff and Mrs, Oollins took a step to run across the street from Deoatur to North Peters Street, when Mrs. Collins ran baok and plaintiff ran away, running into the shaft of the wagon, blinding the mules and she was knocked down, the wagon was loaded with ice; he described when he pioked up the plaintiff and from his testimony plaintiff was entirely at fault.

George Plummer testifies in substance as follows:

"I was sitting on the side of the wagon and looking-, heard the driver holler look out and when he hollered I looked where the two men were sitting, the place where they put the umbrella and I saw an old lady standing in front of the pole with one hand on the pole and one hand up like she was trying to hit the mules or stop them.

Mrs. Collins was reoalled and testified in this oase, but with the same result as in her dlreot iaKttmxajcx examination.

This case was tried before a Jury, who after hearing the testimony and the able oharge of the Judge aqua, whioh we have carefully read and considered, and whioh in our opinion gave a full and oomplete analasys of the law. found a verdlot in favor of plaintiff in the sum of $1075.00.

And on motion for a new trial the Judge says:

"There was sharp oonfliot between the testimony for plaintiff and defendant end the jury has accepted the testimony of plaintiff's witnesses; I find no grave error and the motion is therefore refused."

It has been deoided in numerous oases by our Supreme Court that in negllgenoe oases the Court will not overturn unanimous verdiots for defendant rendered on oonfliotlng evl denoe.

Mequet vs. Algiers Manufacturing Company, 147 La. 364.

"When defendant has the last olear ohanoe to avoid the aooident and fails to do so, he is liable, notwithstanding that plaintiff may himself been at fault."

Cusache vs. N. O. Ry. & Light Co. 9 Court of Appeal 351,

"Even gross contributory negligence on the part of plaintiff will not defeat his right to recover damages if by the exerois'e of ordinary core the defendant might have avoided the aooident."
Vaughn vs. N. O. Ry. & Light Co. 13 Court of Appeal 116.
McClanahan vs. Railway Co. 111 La. 781.
Harvey vs. La. Western Ry. Co. 114 La. 1065.
"The findings of the jury in questions of fact will not be disturbed unless it is olearly erroneous."

Fuge vs. N. O. Ry. & Light Co. 140 La. 582.

Numerous authorities have been olted by counsel both for appellee and appellant, which have reoeived our attention, particularly on the question of the last clear ohanoe and we are of opinion that the oases quoted in this opinion, together with the authorities oited, particularly in the 13th Court of Appeal, and the fact that this case was tried before a jury who found their verdiot in favor of plaintiff for a moderate sum,- under the oiroumstanoes, thus in our opinion, showing neither bias, sympathy nor prejudice and the further faot that the Judge gave his reasons whioh we have quoted, on motion for a new trial, overruling same, Satisfies us that substantial justioe has been done in this oase.

Plaintiff in this case has pr." it. an increase in the amount of the jury's verdict, to the au.-i tional amount prayed for in' her petition. This is denied for the reason given, that the jury's verdiot, with the approval of the Judge, has in our opinion rendered justice between the parties.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgment of the lower Court be and is hereby affirmed, oosts of both Courts to be paid by defendant and appellant.

-Judgment affirmed-  