Campbell v. New Orleans City Railroad Company

• Decision Date: 01 January 1900
• Docket Number: 13,418
• Citation: 104 La. 183,28 So. 985
• Court: Louisiana Supreme Court
• Parties: MRS. WIDOW DENNIS CAMPBELL v. NEW ORLEANS CITY RAILROAD COMPANY

28 So. 985

104 La. 183

MRS. WIDOW DENNIS CAMPBELL v. NEW ORLEANS CITY RAILROAD COMPANY

No. 13,418

Supreme Court of Louisiana

January 1, 1900

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- King J.

Frank McGloin, for Plaintiff, Appellee.

Denegre Blair & Denegre, for Defendant, Appellant.

OPINION

NICHOLLS C.J.

STATEMENT OF THE CASE.

The plaintiff brought this suit alleging herself to be the natural tutrix of the minor Raymond Henry Campbell.

She averred that on the 10th of July, 1899, at from five to six o'clock p.m., said minor, of tender years, being in the Coliseum Square, a public park or place of this city, in the course of his play went upon the track of the Magazine street line of electric cars, belonging to and operated by the New Orleans City Railroad Company, when car number five of said Magazine street line, through the gross carelessness of the motorneer, an employee of defendant, ran upon said child, knocked him down and under the car, causing his right heel and leg to be shockingly mangled, breaking the bone and leaving the limb hanging only by a shred of flesh, and otherwise bruising and injuring him; that by said injury, said minor was occasioned great and prolonged suffering and pain, physical and mental, and was compelled to submit to amputation of the injured leg, becoming as a consequence, a cripple for life.

That the said injury was due exclusively to the gross carelessness of the defendant company, and particularly of said motorneer, who was not keeping a proper look out so as to see said infant in time to safely stop his car, and so avoid hurting him; that, had said motoneer kept a proper watch and look out, he could and would have seen said child in time to avoid an accident.

That it was her belief and she so charged, that said car was running at a high rate of speed, and beyond that which common prudence would justify and beyond what was allowed by the city ordinances; and that, even though negligent in keeping a proper watch ahead and to the side, still, had said car been going at a slow and proper speed, it might have been checked in time, even by ordinary braking, to prevent an injury so very serious as was done to said minor.

That, in such an emergency, the motorneer should have at once reversed the current, and thereby stopped the car, and so saved the child, or at least occasioned to him less grievous injury, and that said motorneer neglected to reverse the current.

That said motoneer was not competent and careful; and she believed and charged that the brakes and appliances of said car were not in good order and condition, and that the incompetency of said motorneer and defectiveness of the brakes and appliances contributed to the injury complained of.

That, under the ordinances of the city of New Orleans, and under the general obligations of defendant to safeguard the public, said car should have been provided with a proper fender; that, as a matter of fact, it was not provided with such fender; that the car struck said child standing, and had a proper fender been on the car, he would have been probably thrown away from and clear off the car and track; that, instead, he was knocked down under the car and under the wheels.

That said minor was damaged by the action of defendant company in the full sum of twenty-five thousand dollars, being ten thousand dollars for pain and suffering, physical and mental, and fifteen thousand dollars for loss of leg, whereby he was made a cripple for life, and whereby he was rendered less capable of earning a livelihood during the remainder of his earthly existence, for which sum he was entitled to judgment. She prayed that defendant be cited; that a jury be empanelled to try the cause and that in due course, defendant be condemned to pay said minor, through petitioner as his tutrix, twenty-five thousand dollars, with legal interest from date of judgment.

Defendant answered substantially by a general denial.

During the course of the trial defendant offered as part of its evidence the record in the matter of the minor Raymond Henry Campbell, on the docket of the Civil District Court for the Parish of Orleans. Plaintiff objected to the offer until some purpose was shown for offering it. Defendant thereafter stated that the suit was brought on behalf of the minor by the plaintiff as tutrix, and the record was offered to show that the proper steps required by law to qualify her as tutrix, had not been taken.

Plaintiff objected to the introduction of the evidence on the grounds:

1st. That it was entirely irrelevant.

2nd. That defendant had not put the question of capacity at issue by an exception filed in limine.

3rd. That the filing of a general denial is a waiver of any objection to the capacity of the party plaintiff.

4th. The defendant had no interest to question here the legality of the appointment by another court of a tutrix to represent this minor child.

5th. Even if defendant had any interest it could not impeach the action of a court of competent jurisdiction appointing the representative of a minor collaterally; that the only manner in which the correctness of the judgment of the court appointing a tutor can be questioned, is by appeal or direct action to annul it.

The court sustained the objection on the ground that an objection to the capacity of the tutrix to sue, must be urged by way of exception before the answer is filed; that the filing of the answer admitted the capacity to sue; that at any rate defendant could be amply protected in the event judgment should be rendered before the payment of the money, to which ruling defendant excepted.

The jury by a vote of nine to three returned a verdict in favor of the plaintiff against defendant, for five thousand dollars.

Defendant appealed.

Plaintiff on appeal prayed that the judgment be amended and increased to cover the full amount claimed in the petition filed.

OPINION.

This suit is brought by Mrs. Albertine Noamie Labauve, widow of Dennis Campbell, alleging herself to be the natural tutrix of the minor Raymond Henry Campbell, to recover for and in behalf of the minor, damages for personal injuries received by reason, it is claimed, of the negligence of defendant's employees.

During the trial of the cause defendant objected for the first time that the plaintiff had not taken the proper steps to have authorized her confirmation as tutrix, and she was not authorized to appear in that capacity. The court overruled the objection on the ground that the objection came too late, it having been raised by issue joined on an answer, and that defendant would be still in time, if judgment were rendered against it, prior to payment thereof, to see that the legality of plaintiff's position as tutrix should have been placed beyond the possibility of doubt.

We think the court's ruling correct. (See Montford vs. Schmidt, 36 Annual, 750.)

The gravity of the injury received, coupled with the fact that the party suffering the same is a little child, has caused us to examine the testimony in this case with the greatest care. There would be no difficulty as to the law of the case with facts established with certainty, but we have found in the present instance, the same looseness of expression and indefinite ideas as to time and place as is found in nearly every suit for damages for personal injuries, where the persons injured and the objects injuring are moving bodies.

It is no uncommon thing for witnesses in a case like the present, to testify in perfect good faith to certain matters as having occurred several "minutes" after each other and of having taken place ten, fifteen and twenty "feet" of a given place, when it is perfectly manifest to a court critically examining the whole that seconds should have been substituted for minutes and inches for feet. There is no class of actions where correct conclusions as to the legal consequences of acts are so dependent upon exact time and exact place of occurrences as that involving railroad accidents. The evidence shows that between five and six o'clock of the afternoon of the 10th of July, 1899, five children of the plaintiff's -- Eva, sixteen, Albert, eleven, Victor, eight, Mollie, ten, and Raymond, between five and six years of age were in Coliseum Square amusing themselves. The youngest child, Raymond, went shortly after this upon the track of the defendant company on Camp street next to the square, and in front of one of its electric cars coming up from Canal street, was knocked down and passing under the car had his leg so injured by one of the wheels as to necessitate amputation near the hip.

Neither the extent of the injury nor the fact that it was received by the child's having been run over by one of defendant's cars operated by its employees is disputed. The issue for decision is whether the injury was the result of negligence on the part of the employees giving rise to legal liability for damages by the defendant. We leave out of view any question of contributory negligence on the part of the child itself.

The park in the city of New Orleans known as Coliseum Square is an irregular body of land bounded on the side next to the Mississippi river by a walk fourteen feet wide covered by Schillinger paving; adjoining this walk and nearer still to the river was a space of ten feet running parallel to the walk which is sodded with grass and having trees at different intervals in the centre of the same.

At the outer edge of this grass plot is a curbing forming the inner or what is known as the "wood" side (or line) of Camp street. The defendant has two lines of track upon Camp street. The rail of the track next to the square is at a distance of a little over two feet from the...