Alost v. J. Moock Wood & Drayage Co., Inc

• Decision Date: 04 March 1929
• Docket Number: 11,145
• Parties: ALOST v. J. MOOCK WOOD & DRAYAGE CO., INC
• Court: Court of Appeal of Louisiana — District of US

120 So. 791

10 La.App. 57

ALOST v. J. MOOCK WOOD & DRAYAGE CO., INC

No. 11,145

Court of Appeals of Louisiana, Orleans

March 4, 1929

Appeal from Civil District Court, Parish of Orleans, Division "A". Hon. Hugh C. Cage, Judge.

Action by Mr. and Mrs. Herbert Alost against J. Moock Wood and Drayage Co.

There was judgment for plaintiffs and defendant appealed.

Judgment affirmed.

Judgment amended.

Dart and Dart, Felix J. Puig and M. A. Woodruff, of New Orleans attorneys for plaintiffs, appellees.

Milner and Porteous, of New Orleans, attorneys for defendant appellant.

OPINION

JONES J.

Plaintiff, a guest in an automobile, sues for $ 25,000.00 damages for personal injuries alleged to have been caused by the negligent driving of defendant's chauffeur in a collision with a truck at the intersection of Magnolia and Clio Streets in this city about 12:30 p. m. on February 26, 1926. Her husband joins in the suit, claiming $ 1,373.20 for hospital and medical expenses incurred by his wife as a result of her injuries and $ 5,000.00 damages to him for loss of the companionship of his wife and for loss of possible joys of parenthood.

The negligence charged to the truck driver was excessive speed and failure to stop or slow down at a right-of-way street, as required by the traffic ordinance of the city.

Plaintiff alleges the following physical injuries:

All the muscles of the left side of the abdomen, including the peritoneum and fascia were so torn and lacerated as to allow the intestines to protrude through the rent to under surface of the skin, forming a large hernia, or hematoma, which necessitated immediate operation; small blood vessels that supply the nourishment to the intestines seriously damaged; traumatic appendicitis, and phlebitis of the femoral vein of left thigh, which prevented use of left leg and necessitated the use of crutches about the house; and nervous shock which has weakened her permanently.

Defendant admitted the collision, but denied all negligence, and in the alternative plead contributory negligence as follows:

(1) Unlawful speed;

(2) Car not under proper control; and

(3) Failure to protest against unlawful speed and sitting on front seat with two other persons.

The trial court, after the case was twice fully argued, found that the driver of the truck was guilty of negligence and assessed the damages to wife at $ 4,000.00 and to the husband at $ 1,373.20. No finding was made as to the negligence of the plaintiff's driver.

The record shows the following:

The collision occurred at the intersection of Clio and Magnolia Streets in New Orleans. Clio Street is paved and traversed by a single electric car track running from the river towards the lake. From this street another track branches off at Magnolia Street in the uptown direction. Magnolia Street at the point of intersection and below Clio Street was paved with brick or stones. At the lower river corner of the intersection is a building situated on the property line and described as Hyams' Stable. On the opposite corner, i e., the lower lake corner, is an open yard separated from the street by a board fence known as Hyams' Coal Yard. On the uptown river corner is a grocery, and on the uptown lake corner is a one-story double cottage. Magnolia Street is twenty-eight feet six inches wide from curb to curb, and the sidewalks are eight feet, eight inches wide, making the total width of Magnolia Street forty-five feet, ten inches. Clio Street has a width of twenty-eight feet, eight inches from curb to curb, with sidewalks of eight feet, eight inches, making the total width of this street also forty-five feet ten inches. Plaintiff was on the front seat of a Velie automobile with Mr. and Mrs. Edward Riehl, going out Clio Street towards the lake, and defendant's truck was going up Magnolia Street towards Carrollton. The traffic regulations make Clio Street a right-of-way street and vehicles thereon have the right of way over vehicles approaching on intersecting streets, which must come to a full stop. A horse and wagon, at the time of the collision, were approaching Clio Street from the lake on the uptown side near the curb, and, when the automobile was turned over by the impact with the truck, the horse was knocked down and a wheel of the wagon broken. After the collision the automobile was lying in Clio Street near uptown curb, facing toward the lake, about twenty-five feet from Magnolia, with its broken top touching the horse, and the truck was several feet from the corner on the lower side of Clio Street, pointing toward the lake. The right rear fender and right rear door of the automobile were smashed in by the impact with the...