Loyacano v. Jurgens

• Court: Louisiana Supreme Court
• Writing for the Court: BLANCHARD, J.
• Citation: Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (La. 1898)
• Decision Date: 30 May 1898
• Docket Number: 12,634
• Parties: SPIRIDONE LOYACANO v. FREDERICK JURGENS

23 So. 717

50 La.Ann. 441

SPIRIDONE LOYACANO v. FREDERICK JURGENS

No. 12,634

Supreme Court of Louisiana

May 30, 1898

Argued May 7, 1898.

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

Edwin T. Merrick, for Plaintiff, Appellee.

Dart &amp Kernan, for Defendant, Appellant.

OPINION

BLANCHARD, J.

Plaintiff sues to recover three thousand and fifty dollars damages for personal injuries received.

A collision occurred between two wagons on Elysian Fields street, New Orleans, in October, 1895.

One of the wagons was owned and driven by Paul Demagio; the other belonged to defendant, was on a business errand of his, and driven by an employee in his service.

The first mentioned wagon was the smaller of the two; was carrying a load, and three persons occupied a seat at its front. They were Demagio, the driver, sitting at the right plaintiff sitting at the left and a boy four years old. the son of Demagio, sitting between them. The wagon was at the time in the service of plaintiff, a fruit and oyster dealer, who had hired it to transport a load of fruit and ice to his place of business, he making the trip with the wagon.

The wagon of defendant was of the character of vehicle used by coopers for transporting barrels, having arms or hoops extending along either side of the wagon-bed and projecting over and beyond it about one foot and a half. It was at the time of the accident empty, and the only person in it was the driver.

Elysian Fields street is a wide avenue, in the centre of which is a space called "Neutral Ground," on which are located the tracks of a railroad company. On either side of the street is a roadway. It may be described as a double street, or two streets divided or separated from each other by the neutral ground.

The evidence is that the down-town side of the street is rough, described as "a bad road," not in use by vehicles. The up-town side is a fairly good roadway and is used by vehicles, whether going toward the river or in the reverse direction. On this roadway is located the track of a street railway.

The wagon in which plaintiff was riding had approached Elysian Fields street from the lower side, coming into it from Decatur street. It traveled across the street to the upper side and reaching the street railway track got on to it and proceeded slowly in the direction of the rear of the city.

Defendant's wagon was on the same railway track going in the direction of the river or front of the city. It was moving at a more rapid pace than was the other vehicle.

The two wagons met between Decatur and Chartres streets, a collision occurred with disastrous effects to the smaller wagon, whose three occupants were thrown out, one of them (plaintiff) having his leg broken. An ambulance was called, he was conveyed to the hospital, where he remained about a week receiving surgical attention, and was then carried to his home, where he was confined to his bed for eight months under the care of physicians. He was severely injured, being still on crutches at the time of the trial of the case below, more than a year and a half after the accident. That he will ever recover entirely from its effects appears altogether improbable. He is a young man, less than thirty years of age.

There is in the case the usual conflict of testimony characteristic of damage suits. The judgment below was in favor of plaintiff for five hundred dollars. Defendant appeals, and, in this court, plaintiff prays that the amount allowed him be increased to twenty-two hundred dollars.

The weight of testimony, we think, sustains plai...