Cimo v. Karstendiek
| Decision Date | 05 April 1937 |
| Docket Number | 14999 |
| Citation | 173 So. 548 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | CIMO v. KARSTENDIEK |
Gordon Boswell, of New Orleans, for appellant.
E Howard McCaleb and Robert G. Hughes, both of New Orleans, for appellee.
This is an appeal from the verdict of a jury awarding damages to the plaintiff and to his minor son, for the actual expenses of the former and physical injuries of the latter, attributed to the defendant's negligent operation of her automobile.
An application for a new trial, after the verdict of a jury, was refused by the district judge with this comment:
We cannot construe these remarks as having any legal effect whatsoever. If they were intended to express the view that the verdict was contrary to the law and the evidence, it was the duty of the judge to order a new trial. Dahlberg v. Shreveport Traction Company, 141 La. 96, 74 So. 707. The law allows no other course.
The fact that both attorneys agreed to the overruling of the motion does not alter the situation. If we were to give effect to the remarks of the trial judge, we would invest him with authority to substitute his views for the verdict of the jury, whereas the law gives him the right to set the verdict aside only for the purpose of granting a new trial, and his powers in that regard are limited. Act No. 51 of 1908.
We cannot conceive the situation to be that counsel for plaintiff intended to abandon the verdict in favor of his client and to accept in lieu thereof an adverse judgment by the judge. We must rule that defendant waived her application for a new trial and chose to have the matter reviewed by an appeal from the jury's verdict. Otherwise we would have to introduce a new proceeding in our practice, a function reserved to another branch of the government.
The familiar and approved rule directs us not to disturb a jury's findings unless shown by the appellant to clearly contrary to the law and the evidence.
Defendant's own testimony establishes the following:
At about 10 o'clock on a Saturday morning she was driving her automobile along the lower driveway of Ursuline avenue which is about 18 feet wide, going in the direction of Bayou St. John. Just as she passed the intersection of White street, she saw a group of children, a little over a half a block ahead of her, standing on the neutral ground "as though they were statues." There was nothing to obstruct her view, but she did not see the plaintiff's son, who was later injured, as he was standing behind a larger boy. She was driving at approximately 25 miles an hour at about 4 or 5 feet from the neutral ground. When she was about 25 feet from the group, a sweater was thrown into the roadway, by one of the boys, in the direction of her approaching automobile. It landed about 4 or 5 feet from the neutral ground. The Cimo boy, aged about eleven years, made a wild dash after the sweater. She saw the boy run from a position right near the car track (in the middle of the neutral ground), which has a width of about 12 feet, into the street, and as he was just about to come over the curb (of the neutral ground) he put up his arm as though to ward off impending danger and kept it up until he was struck. He did not make any attempt to pick up the sweater, but attempted to dash across the street. She swerved her car to the right, or away from the neutral ground as soon as she saw him dash into the street, but he ran into her left front light and bumper. The bumper picked him up and threw him on the sidewalk with his leg extended in the street. She then swerved from her course, so as not to run into the palm trees on the sidewalk for fear that she and her mother, who was a passenger in her automobile, would be killed. It was then that she ran over the boy's leg. She stated that as soon as she saw the boy she tried to slack up a bit and thinks that she reduced her speed to about 18 miles an hour. She testified that she had remarkable brakes on her car. She does not know whether they were two-wheel brakes or four-wheel brakes, but, "if you are riding and you want to stop they give you a jolt and send you almost out when you want to stop." She said that she had no idea of distance, but thought she could stop her car when traveling 20 miles an hour in not over 20 feet.
When she finally came to a stop, she...
To continue reading
Request your trial
-
Tate v. Hill
...such negligence was not the proximate cause of the accident. Other cases, among the many, in point or nearly so, are Cimo v. Karstendick, La.App., 173 So. 548, and cases and authorities therein cited; Doyle et ux. v. Nelson et al., La.App., 11 So.2d 645, wherein many cases from various juri......
-
Jenkins v. Firemen's Ins. Co. of Newark, N. J.
...or three feet from the edge of the ditch, at the rate of twenty to twenty-five miles an hour * * *.' Our opinion also cited Cimo v. Karstendiek, La.App., 173 So. 548, and Moreau v. Southern Bell Telephone & Telegraph Co., Inc., La.App., 158 So. 412, with reference to the pronouncements in t......
-
Sutton v. Rogers
...Co. of Indianapolis, 47 So.2d 59 (La.App., 1st Cir. 1950); Stamps v. Henderson, 25 So.2d 305 (La.App., 2d Cir. 1946); Cimo v. Karstendiek, 173 So. 548 (La.App., Orls. 1937). Thus, a motorist encountering children near streets or highways must anticipate that the very young are possessed of ......
-
Bryan v. Durr
...by the motorist was applied in favor of an injured child in Guillory v. Horecky, 185 La. 21, 168 So. 481 (1936), and Cimo v. Karstendiek, 173 So. 548 (La.App . Orleans 1937). In the instant case the children, including Carl Bryan, were not crossing nor walking along the edge of the street, ......