Blackburn v. Louisiana Ry. & Navigation Co

• Decision Date: 10 April 1911
• Docket Number: 18,089
• Citation: 54 So. 865,128 La. 319
• Parties: BLACKBURN v. LOUISIANA RY. & NAVIGATION CO
• Court: Louisiana Supreme Court

54 So. 865

128 La. 319

BLACKBURN v. LOUISIANA RY. & NAVIGATION CO

No. 18,089

Supreme Court of Louisiana

April 10, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

PROVOSTY, J. SOMMERVILLE, J., takes no part herein.

OPINION

PROVOSTY, J.

On Rehearing.

A rehearing was granted in this case on the quantum of damages. On the original hearing no stress was laid by either side on the quantum of the damages, and the court, having reached the same conclusion as the jury on the merits of the case, simply affirmed the judgment. On application for rehearing, the attention of the court was called to the fact that of the three elements of damage in cases of this kind -- namely, (1) the physical and mental pain and suffering of the deceased; (2) the physical and mental pain and suffering of the plaintiff; and (3) the loss of support and maintenance -- only the first and third are alleged or relied on in the petition; and that, as founded solely upon these two elements of damage, the judgment was manifestly too large.

Plaintiff alleges in her petition that the head of the decedent was "crushed to an almost unrecognizable mass," and we found as a fact that "whether he was at all conscious after the impact of the car, it would be hard to say." Under these circumstances the amount of inherited damages for the physical and mental pain and suffering of the decedent cannot be very large.

In the case of Kimbell v. Homer Compress Co., 109 La. 967, 34 So. 41, this court said:

"The boy Kimbell was instantly killed; his skull was crushed between the boiler and the brick wall. [In the instant case between the box car and end of the pole.] He did not live to suffer and then die, leaving an heritable claim to his parents on account of his sufferings."

The court allowed the parents $ 1,000.

In Burns v. Ruddock Cypress Co., 114 La. 247, 38 So. 157, where the young man for whose death the suit was brought had lived 24 hours after injury and had been subjected to severe pain, the allowance was $ 1,200.

In Clements v. La. Electric Ry. Co., 44 La.Ann. 692, 11 So. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348, the court said:

"The deceased was almost instantly killed, and no damages can be awarded for sufferings."

We quote this last, not as meaning that where the death is "almost" instantaneous there is necessarily no room for suffering and damage, but merely as expressing the idea that in such cases the margin is scant, and the claim for damages more or less doubtful.

Passing to a consideration of the element of damages for loss of support and maintenance, we find that the plaintiff is a colored woman 65 years old; that her son, the decedent, was earning $ 55 per month as a brakeman when working every day, Sundays included, and when no deduction had been made for loss of time; that there is no evidence of his having contributed to the support and maintenance of plaintiff, except the following testimony of plaintiff herself:

"How did he support you? A. He sent me money. Q. How did he send you money? A. As he could get it. Q. How much did he send you every month? A. No certain amount. Sometimes he would send me $ 20; sometimes $ 30;...