*224NANCY W.GRANBERRY VS J.EMILE JARREAU,Appellant.
No.8845
This a a damage suit for personal injuries.The plaintiff alleges that while she was crossing common Street,she was ¡mocked down and injured by an automobile driven by the defendant;that she suffered the following injuries! 1st Two bones of the right foot broken;2nd the left ankle severely sprained! 3rd. her hips bruised; 4th her caen: wrencned;and 5th a nervous shook from which she has not yetó'receovered;that at the time of the accident she was employed as a file clerk at a salary of $80.uo P®r month; that she has not been able tb do.any kind of work since! the accident four months before the filing of her petition.She Claims tha following damages;
1st Loss of four months salary at $80 $320.00
2nd Loss of her earning capacity 5000.00
3rd rain and anguish,present and future 3000.00 •
4th Humiliation of having to limp-the balance of her life. 5000.00
Making a total of $ 13320.00
Defendant denied all of plaintiff's allegations and averred that the accident and injury to the plaintiff resulted, from Kto negligence.
There was judgment for the plaintiff for $5000 and defendant has appealed.
The raots of the accident are as follows:
on January- 17th 1922 between four and five o'clock in the evening,the plaintiff was walking on the sidewalls of Carondelet' Street nearest the Lake going towards Canal Street;' *225she was in company with two other ladiesjHiss Murphy was on the right,plaintiff was in the center,and Miss Moran was on the left; when they reached Common Street,they proceeded to cross it;just about that moment the defendant driving a Ford car,was proceeding down Oarondelet in the same direction in which the plaintiff was walking";when he. reached Common Street,he turned to his left towards the Lake in order to drive down Common Street;in doing so he ran down plaintiff and one of her companions and a third lady who was stepping on the down town sidewalk or Common omreet.
There is not much confliot in the testimony concerning the manner in whioh the accident happened.
Miss Moran testifies;
Q.What happened while you were orossing Common Street?
A.We first started over;it was time for the pedestrians to pass people were in front of us,and we got more than three quarters over when an automobile came down very quickly and it knocked down Mrs Oranberry and Miss Murphy;it didn't toucxi me,and the machine turned and'went on the.sidewalk.
Q. What warning or notice did you have that an automoDlle was coming there ?
A. We didn't have any notioesdidn’t have to think-
91. What I want to find out is,was your faoe back or.side,to the automobile ?
A. My back was to the automobile.
Miss Ethel Murphy says;
* That when they reached the comer of Common and Oarondelet hey proceeded to cross Common Street;while in the middle of the Street Mr Jarrau'f automobile came in from Oarondelet Street, coming from uptown going in the same direction as us and hit me on the wrist and threw me back,and then I saw it run over Mrs Cranberry's foot,the auto ran over her foot."they had no warning at all,that the automobile was going to turn into Common Street,no horn was blown;there were other pedestrians passing *226in front of them;after' the accident the auto ran up on the sidewalk into the empty lot and stopped;six or eight feet from there, the- left hand fender going to the lake hit her right arm;the auto stopped six or eight feet from the point it struck her.
Miss Freuil testifies that she was coming down Carondelet street ,and'- that she had almost orodsed Common Street when the accident occurred;that she heard no sound of an automobile horn ¶ positively none,that.if any had been sounded she would have heard it;there were other-pedestrians crossing the street;the auto hit the heel of her shoe when she was about stepping upon the sidewalk of Common'street,and nearly, threw her down;is positive she heard no horn;would have heard it if sounded,oannot be mistaken.
the plaintiff testifies;
She had no notice or warning that tne auto was going to hit her, positively none;the automobile came from behind her,on Carondelet going towards Canal Street.
On behalf of the defendant,the traffic officer says he did not see the aocident;his attention was attracted by a woman's soream;he turned around and saw the plaintiff lying in the streetdefendant's auto was on the siddwalk at an angle of forty-five degrees.
.The defendant testifies that he is a dealer in automobiles; that on the day of the accident he was driving a Ford Sedan; that he was driving down Carondelet Street;when he reached Common Street the traffic was going from the River to the Lake so'he came to a dead stop for possibly twenty seconds until he received the signal from the traffic officer to proceed;there were a great many pedestrians at that time going down Carondelet towards Oanal Street on the Lake side and on account of the crowd he drove very slowly and biew his horn;as he was proceeding in the direction of the lake there were two or three ladies in front of his car hesitating to cross;they steped backwards and forward until his machine got so close, to them,and seeing them in front *227of him.,and in order to avoid an .accident he swerved his car to the "right and made his way on the sidewalk.on Common Street;then he got out of his car and walked back six or seven feet and saw the plaintiff supported.by.two menjwhen the plaintiff was crossing Common Street she was looking down Canal Street5 there were three ladies talking togetherjhe does not know that his car came in contact with the plaintiff;he had no knowledge of it then or now; he immediately went to the plaintiff and took her. in His- auto up to. the•Hibernia. Bank Building;while traveling at six or eight miles an hour he could stop his auto within a foot.
There is no other testimony explaining “the accident.
To our satisraotion,it establishes that while three ladies were-quietly crossing the intersection of.Common Street unaware of any danger,the defendant,approaching them from the rear or at best from the.-side,and with full knowledge of' their presence, drove his car against them,struck the wrist-of one of them.knocking down another;, and ran over her and such was the rapidity, of his course hit the heel of a third,and'Jumped upon the sidewalk leaving the plaintiff lying upon the ground six feet behind his oar.But the defendant urges that, the plaintiff was negligent* and contributed.'to. the accident;that she. threw herself in the way of his oar,and that before crossing Common. .Street,she should have looked-up ^.Carondelet-Street to s.eé whether any car was coming .down and turning into Common...Street.We 'think not.The plaintiff, had satisfied the law when she looked up 'Common Street which'is a .one way street running towaites.'^Ko'Lhlisq, If' she bad looked up Carondelet Street and seen a oar coming down,nothinh would have indicated to her,nor.would she have had any reason.to believe that' the *ar would turn into Common Street.She would have been •Justified in assuming that the car- would have continued is course down Carondelet Street;and in that manner, she would have had no m reason to try and avoid it 8 Ct°App;341 ..
It was plainly defendants duty .in turning from. Oarond.el.et into Common Street to see that no pedestrians on Common Strefet *228at the customary oroseing.
Pedestrians have equal rights of way with vehicles on Streets-18 Am.and Eng.Enc Law 2d Ed 585 1 st Ed.964-Elliott on Roads 622 - 37 Cyc.273.275-28 Cyc 912 - 113 N.Y. App.Div 808-99 N.Y Supp 1091 -42 Me.332-104 N.E.457-50 A 1164.
A greater degree of care must he 'exercised by one using a dangerous instrument 125 La 944 .
One using upon a public street a death dealing machine like an automobile,must be duly observant 126 La 790-141 La 686 (605 ) Ct.App.No.6769.
But assuming that the plaintiff and her two companions were negligent and contributed to the accident,that alone does not constitute a defence.There are two elements essential to such a defence} 1st that plaintiff was negligent and 2nd that the accident was unavoidable on the part of the defendant by the exercise of reasonable care.Defendant saw those three ladies,as he says,hesitating to cross,backing and filling ^and -he apprehended an accident.He could have prevented the accident by stopping or at least checking.The last clear chance was with him.
Hegligence of a plaintiff will not exonerate a defendant who by the exercise of reasonable care could ha*e avoidded the accident.The leading oase upon the questipn in our Jurisprudence is perhaps Me. Clanahan vs R.R.D.111 La 781.
" While plaintiff was negligent in attempting to cross the defendants' track at a sharp curve without stopping to look and listen at the proper time and place,the Company will be held liable when the evidence shows that the engineer, saw the danger in time to avoid the accident by sounding the whistle or applying the brakes"' Ross Vs Sibly 116 La 789 .
To/tae same effect are the common law authorities *229Held,that the defendant had no ground uf exception to the following instructions:
sS>- That contributory negligence of the plaintiff would not prevent him from recovering if the defendant might,by the exercise of reasonable care and prddence,have avoided the consequences of the plaintiff's negligence." 139 U.S. 551 (558) and authorities 13 How.101-109-144 U.S.429-43 N.Y.75.82-5 Gray 64.72-29 Md.420-156 Pac.51-L.R.A.1916 E.58-898-7 A and E.E.Law 2 ED.P.387-2 Supp id 63 Shearman and R. on Neg.p.99- 1 Thompson on NeG. S 239-242 29 Cyc p.641 F 652 (d) 655 F.
The English authorities are the same."Though a plaintiff may have been guilty of negligence and although that negligence may in fact have contributed to the accident which is the subject of the action,yet if the defendant could in the result^by the exercise of ordinary care and ddligence^have avoided the mischief which happened,the plaintiff's negligence will not excuse him. Radley vs RED.Appeal cases 754-18 English Reports ( Moaks notes ) 37 (41)
II The further defence is made that the plaintiff cannot recover because immediately after the accident,while driving in defendants' car to Dr Yfebb's office,the plaintiff declared in the presence of the defendant and of the traffic officer and of the Misses Murphy and Evans " that the accident was not his fault,"
The defendant swears that, she said so;the plaintiff denies it.The traffic officer answers: Tes she said then,that she didn't think that mr Jarreau ran into her purposely,and that •it was not his fault something to that effect."
Miss Evans,a witness for defendant,whom she calls’1 Emile^ testifies that the plaintiff said:Why it was not your fault at an wr jarrau I lost mv head and Zigzagged across the street.
Miss Murphy denies that plaintiff said so.
Defendant and his wife also testify that a few days after *230the accident they called on the plaintiff who repeated that "it was not Mr Jarrau's fault;that she was getting along allright not to worry,the accident was unavoidable."
The plaintiff denies this statement and she is corroborated by Mrs Koehle who was present during the visit páid by the defendant and his wife to the plaintiff and who heard all the conversation between them.
She says that she did not hear plaintiff tell Jcr ana Mrs Jarrau that the accident was not due to Mr Jarrau's fault;that she told him that she knew he didn't do it intentionally."
In the presence of the conflict of testimony we cannot hold that defendant has established this branch of his defence.
Such a defenoe must be established with absolute certainty. 48 A 832-1 Woods 306 savin vs Juno-50 A 468
III There remains the question of' amount of damages.The law does not pretend to allow to a plaintiff such an amount as will compensate him for the damage done to him by the defendant.As was / well said by plaintiffs counsel in argument,no amount will compensate one for the loss of a foot or of a head hand,or of an eye, for it is an irreparable injui>y;or if any attempt is made at compensation,the amount might ruin the defendant,which is not the object of the law.
In the case of Vincent vs Morgan Railroad 140 La 1027 decided in 1917 the Court said a Neither the person originally injured nor those who sucoees to his rights with respect to the injury,and who acquire rights of thir own with respect to the injury inflicted upon them by his death,are entitled tp recover anything more in the way of damages than adequate indemnity for the injury and loss inflicted upon him and them in mind,body or estate,there being no provision in our system of laws which authorizes the cumulation in such oases of a civil action for the redress or a private wrong with a quasi,criminal prosecution e-for the assu*eBenefit of the public,but the solS* purpose and .principal objeot of which is to Increase the adequate indemnity *231recovered toy une plaintiff as actual and compensatory damages toy tile addition of a pecuniary penalty in the form or exemplary primitivej.or vindictive damages Also Dunson vs Baker 144 La. 167 -428 -586-146 La 678-10 A 33.
Prior to the atoove decisions Courts were in the hatoit of awarding exemplary or punitive damages.
For that reason,in examining those decisions,we must eliminate those damages in fixing the amount to toe allowed toy us. •While not ignoring plaintiff's testimony,we must give greater weight to the opinion of Dr O'Ferrall as to the extent and eewse-consequences of plaintiffs' injury.He was employed toy the plaintiff to treat her in juries,he is. an or thop odi súr geón, he treats diseases of the hones and jointsjhe is a graduate of Tulane University;was an interne in the Bellevne Hospital of New Yorky Massachusetts^ueneral Hospital in Boston,Senior Orthopedio Surgeon at Touro Infirmary,Chief, of the Orthopedio. service at the Charity Hospital and the New Orleans Dispendary.for women y, was a year in charge of the orthopedio service in' Europe¿is a member of the Amerioan college of ’’Burgeons of. the- Louisiana. State Medical Society and of the Orleans Parish Medical Societyjhe treated plaintiff for six .weeks or two months;saw her between two weeks and a month ago;he treated her exclusively for her right footjwas not asked to treat her toack^made no complaint of her hip,nor of nervous shockjhe saw her seven pr eight weeks after the injuiyjat that, time her right foot was 'swollen and-there was some pain over the top of the foot on pressure;he'took an ex-ray of her foot whloh showed a small.fraotufe of a bone and a slight dislocation- of another bone; he strapped-hep foot.-,Up, and put a pad for support and upon her return to, his. office ane seemed to think it was ¡better,and In' the1 course of- three or four visits to his office the swelling had. largely disappeared- and she was able to put pa her normal shocya-t first she', WAS wearing-a shoe that was out,her condition has progressed towards a normal foot; the-JLast time he saw her,’she .was having comparatively little pa-in,tout waa.„$||fti limping;she-parné in.aftér an *232absence of several weeks and. he tolfi^her foot was progressing satisfactorily and he thought it would eventually be entirely welljthe pad was to relive plaintiff's foot;she has a slight "pronation * Known by the laity as a Hat foot which necessarily gave pain before the acoident and greater pain after the accidenty be thinks she should in the ordinary course of events make a rapid recovery;and her foot would be the same as before the accident; he thinks she will be perfectly well in six months,it is not a permanent injury. Dr Levy says " That this lady's particular flat foot was not caused by the accident bgtt was due to other oauses over.which we have no control ".The plaintiff testifies that, in July last she went to the coast;she went in bathing and could not.walk in the sand;her feet became so painful and sore that she had to orawl on her knees and. hands;she has worked all her life;she can fill other employments than file clerk;she is a book keeperj'she taught school for twelve years;she was three ^ years in high school.
The accident oocurred in January; Dr O’Perrall testified in July he said plaintiff's foot would be well in .six months.
The plaintiff has i»ot established to our satisfaction that she injured her left foot,nor her hip,nor her back,nor that she suffered a nervous shock.Bor do we think that the accident has deprived her of her ability to work in other lines than as a file clerkj or that it has destroyed her earning capacity in other spheres^or that the injuries received by her are permanent.
With a view of being in line with the Supreme Court on the question of the amount of damages allowed for injuries of the same extent as those suffered by the plaintiff we have examined the following authorities and from them we gather that a sum not exceeding two thousand dollars isusually granted a plaintiff even 'whan in similar oases.the injury is permanent.5 A 703-10 A 88 A 15 A 703-17 A 166-19 La.414 20 A 25-35 A 13-751 - 36 A 966-37 A 27 *23338 A 111-39 A 649-40 A 467- 43 A 983-47 A 1107 -1440 -49 A 1466 52 A 1133-1155-1599-104 La 345 -634-105 La 451-106 La 170-409 108 La 423 -109 La 396-525-110 La 399-534-741-113 La 1040-114 La 802-1035-115 La 249-116 La 789-926-1033-117 La 1094-118 La 530 119 La 336-344-537-121 La 909-122 La 441-606-128 La 933-111 La. 467-126 La 634-145 La 323-435-734-139 La 788 -139 La 616 -140 La 529-1019-143 La 269-148 La 88 -134 La 863.
More especially the following 43 A 295-50 A 280-441-1163 51 A 178-52 A 1109-2153-41 A 624-104 La 411-106 La 271-111 La 467 114 La 1035-117 La 911 -119 La 537-121 La 231-242-126 La 568 128 La 933-130 La 39-139 La 616-92 So.Rep,58-142 La 403.
In Jones vs Tremont 139 La 631 the Court said" While the» is no standard for the measurement of damages in a case like this {.here should he some regard for uniformity" also 126 La.1088 (1099 )
In the three cases quoted by the plaintiff where heavy damages were awarded^the first was for the amputation of a child’s right arm^the seoond for permanent injury to both hands rendering them useless,fracture of the Jaw and loss of all tegthftarupture of the arum of one ear with loss of hearing and the injuries; the third^'150 La 6l'^the plaintiff suffered a curvature of the spine,is crippled for life and permantly incapacitated to earn a livelihood;suffered much pain and her power of locomotion is greatly impaired".
It was only in oases of ezcispAve- inJmry and pain with reduced capacity to earn a living,or where the plaintiff had lost a leg^ or an arm ov his eighty or hearing that a larger sum than two thousand dollars was allowed,as was decided in the cases quoted by the plaintiff.
Dpon the argument of the case plaintiff offered to file her affidavit statting that her condition had not improved and was becoming worse and praying that the case be remanded to take testimony on the question.
*234Ihe code of practice provides Art*804 * The Supreme Court shall receive no'new evidence even through it may hate been discovered since the Judgment below except in the oases hereafter expressed."
in the case of Sumer vs RRD. 37 A 648 (650) the. Court said:"Courts must be very oautlous in dealing with, elements of prospective damages,which should never be allowed.but in blear eases,supported by tangible proof,and in :a measure independent of expert testimony."
The above article 894.must be interpreted in conjunction with-article C.P.906 which authorizes the appellate Court to ^remand e; c^ise^n jOlogsee when the ends of Justice require it. But such relief is'gwMjteu only in extreme oases,and where otherwise it is evident that either party would fail to receive What he was entitled to,if all the facts had been properly presented and the law fairly applied.But in this case we feel 'able to grant the plaintiff all the relief she is entitled to according to- the ^record before us.In 119 La 340 the Supreme Court said*
"We have noted that defendant moved for an order remanding! the case on the ground of newly discovered évidenbe.It has had its day in oourt.lt is its misforture if it did not discover the evidence in time.There must be an and to litigation.A remanding order at this time in this os.se would find support in none of the boohs. *"**
It is therefore ordered that ;.the Judgment herein be reauoed-from Five Thousand dollars to Two thousand dollars,ana that as thus amended,it be affirmed,.the plaintiff to .pay the costs of appeal
October 30th 19SS