Lapleine v. Morgan's Louisiana and Texas Railroad and Steamship Company

• Decision Date: 01 July 1888
• Docket Number: 1307
• Citation: 40 La.Ann. 661,4 So. 875
• Parties: BERNARD LAPLEINE v. MORGAN'S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY
• Court: Louisiana Supreme Court

4 So. 875

40 La.Ann. 661

BERNARD LAPLEINE v. MORGAN'S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY

No. 1307

Supreme Court of Louisiana

July 1, 1888

APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

R. S Perry, for Plaintiff and Appellee.

D Caffery, for Defendant and Appellant.

OPINION

FENNER J.

The plaintiff sues in behalf of his minor child Marie Lapeine, to recover damages for injury inflicted upon her through the fault of the defendant company.

He alleges that in April, 1885, Marie, with other children, was at play in the rear part of her father's yard, on the inside of a plank fence separating said yard from the railroad track of said defendant, when a train of cars belonging to the latter and loaded with split lumber passed along said track, and the stakes confining said lumber becoming loosed or disarranged, the lumber broke away from its fastenings and tumbled off the car, part of it being precipitated over the fence and falling into plaintiff's yard, striking the child, Marie, and inflicting on her the injuries complained of.

The evidence is, to our minds, conclusive on the following points, viz:

1. That the lumber was precipitated from defendant's car over plaintiff's fence and into his yard substantially in the manner charged.

2. That this was caused bye the improper loading or insufficient fastening of the lumber and by the imprudent handling of the train, and is imputable exclusively to the negligence and fault of defendant.

3. That the child, Marie, was struck and injured by the falling lumber.

4. That the child was entirely free from any fault or contributory negligence of any kind whatever.

As to all the above points, except the third, there is no room for the slightest dispute.

As to the third point, the evidence is conflicting, but after a thorough scrutiny, we are perfectly satisfied that Marie was struck and injured by the lumber.

The child was undoubtedly in the yard and near where the lumber fell. The lumber was pitched over into that yard. Immediately afterward the child was found with a wound upon her head and bruises on her body, and she stated she had been hurt by the falling lumber, although, by reason of her age and condition, she was not admitted as a witness.

The colored nurse, Mary Coleman, was the only immediate witness of the injury to the child. She is a curious example of utter depravity and insensibility to the obligation of truthfulness. She pretends to have been bribed by both parties, and her only complaint was that neither had paid the promised bribe. She was put on the stand by plaintiff and testified on every point in her favor. The counsel for defendant then produced a written statement made by her before a notary, and under oath, some time before, in which she contradicted nearly everything she had just been saying. Of course, such a witness is unworthy of belief; but it is a significant fact, that in the statement above referred to, which had been obtained from her by the agents of defendant and was produced by it on the trial, she stated positively that Marie was struck and hurt by the lumber. On this point we believe she told the truth. She is confirmed by Mrs. Lapleine, the mother of Marie, who saw the child when she was withdrawn from the lumber that had fallen upon her. Her testimony was objected to on the ground that she was incompetent under the provisions of Art. 2281, Rev. C. C., which declares that "a husband cannot be a witness for or against his wife, nor a wife for or against her husband."

It is clear that this is not the husband's suit, but that of the child. The petitioner himself expressly declares that he sues "in his capacity as father to his minor child, Marie, and for her separate use, benefit and advantage." The circumstance that, under Art. 221, C. C., "Fathers and mothers shall have, during marriage, the enjoyment of the estate of their children until their majority or emancipation," subject to the obligation of supporting and educating them, is not sufficient to disqualify either of them as witnesses in cases in which their children are parties. If it would disqualify either, it would disqualify both, since the law gives the enjoyment to "fathers and mothers."

There is much other corroborating and confirmatory testimony, and the whole, taken together, completely overwhelms the efforts of one or two employees of the railroad to establish that Marie was not struck by the lumber, but was some distance from where it fell, and was hurt by tripping and falling as she ran away in alarm. Not only is this theory inconsistent with all the facts and other testimony, but it is utterly insufficient to account for even the apparent physical injuries which Marie undoubtedly received.

The foregoing points being thus settled, it conclusively follows that the defendant is responsible for the damage legally occasioned by its negligent fault.

As to the nature and extent of the injury, it is shown, without any semblance of contradiction, that up to the moment of this accident Marie, then eight years old, had been a bright, intelligent, active and thoroughly healthy child. From that moment she became, and has remained, a constant invalid, seriously affected in mind and body, her nervous system shattered, subject to headaches, to attacks of nausea and vomiting, to frequent and sudden fainting or falling fits, emaciated, indisposed to physical or mental exertion, dragging her limbs in walking, and otherwise afflicted. At the time of this trial about two years had elapsed since the accident, and, though slightly improved, the child continues, to a great extent, affected, as above indicated.

The...