8 So. 581 (La. 1890), 10,631, Nivette v. New Orleans And Lake Shore Railroad Co.

Docket Nº:10,631
Citation:8 So. 581, 42 La.Ann. 1153
Opinion Judge:MCENERY, J.
Party Name:ARTHUR NIVETTE v. NEW ORLEANS AND LAKE SHORE RAILROAD COMPANY
Attorney:Branch K. Miller, for Plaintiff and Appellee. Buck, Dinkelspiel & Hart, for Defendant and Appellant.
Case Date:December 01, 1890
Court:Supreme Court of Louisiana
 
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Page 581

8 So. 581 (La. 1890)

42 La.Ann. 1153

ARTHUR NIVETTE

v.

NEW ORLEANS AND LAKE SHORE RAILROAD COMPANY

No. 10,631

Supreme Court of Louisiana

December 1, 1890

APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

Branch K. Miller, for Plaintiff and Appellee.

Buck, Dinkelspiel & Hart, for Defendant and Appellant.

OPINION

MCENERY, J.

Plaintiff sues for $ 20,000 damages for personal injuries sustained by him through the fault of defendant; the injuries consist of the loss, by amputation, of one joint of the thumb, two joints of the third finger of the left hand, and the mutilation of the hand in other respects; the amputations and other injuries were in consequence of, and caused by his being run over by a car of defendant, at the corner of Esplanade and Levee streets; the damages consist of physical and mental pain, injury temporary and permanent to [42 La.Ann. 1154] his hand; impairment of capacity in his vocation of cotton classer, marker and inspector, etc.

The negligence charged against defendant is:

1. The bad condition of the street where plaintiff was injured, which caused him to fall from a wagon he was riding on, to the track, where he was run over.

2. That the driver of the car, by the exercise of ordinary care, which he failed to observe, could have avoided running over him.

3. That the driver at the time was exhausted from overwork and long hours of duty, and on this account could not perform his duty with proper diligence.

After the overruling of an exception of no cause of action, defendant joined issue by a general denial, followed by a special denial of any unusual hole or bad condition of the street where plaintiff fell, and an averment of contributory negligence; it was further specially denied that plaintiff could have any right of action against defendant, based upon its contract with the city to keep the streets in repair.

A trial by jury resulted in a verdict for plaintiff for $ 750.

The defendant appealed.

The petition alleges that the plaintiff was in a wagon driven by Jacob Rosch; that, when said wagon reached the corner of Esplanade street, the driver, in order to allow the passage of a car of the defendant company, coming from behind on the track on which the wagon was proceeding, and going in the same direction, caused said...

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