Meyers v. Rouseo ( 1920 )

Dinkel q.l. Ij

Alikin; -Iso th. t the acciient v; g cuuj nd e..tirsly through the fault, ns.'ligence .ni gross c-. rcleesness of the oUfendcnt in permitting a vicious and uncontrollable horse to ho upon the public thoroughfare and in no i..a nor vas contribute.! x by pi. in-i'ff but that he was absolutely unable tc ovoid s', id accident.

That as a result Of said e.ooident plaintiff s is Sained injuries to his left arm and body and from v/hioh he claimed he had suffered up to the filing of this suit. He alleges further th- t he had incurred expenses for doctor and medicines in the sum cf §£5.00 and for pi-in and suffering he w.--s entitled to the sum of $350.00 ...nd he prayed for judgment for both amounts.

The answer of the defendant denied the accident was caused entirely through the fault and negligence of himself by permitting a vicious and unócnircllable horse on the street, claiming that the horbe in question v/as Same and gentle and had been th- t way for a period of four years prior So the filing of the present suit and never should any trace of vioiGUsness.

The defsnáont1 s pr-yer is finally for o. dismissal of this action.

The first witness examined in this case on behalf of plaintiff was one A. V. Dusand.

He testifies that he was the Traffio Policeman stationed on the Ksix lleutral Ground, Intersection of Canal, Chartres and Camp Streets; he saw the horse strike a float and the buggy go to pieces; that plaintiff was crossing Chartres Street as the horse kept coming, plaintiff being knooked down; he was taken into a drug store at the oorner of Canal & Chartres Street where temporarily hi3 wounds were dressed; he did not make any attempt to check the horse because the animal w.-s pretty fiery; he frequently when on his beat let this horse cross over the street because he would not stand; knows the horse well and knows that the horse was always fiery and being the one who turned the semiphore he always gave the horse the right of way because he did not want to see anyone hurt; he has had quite a good deal of eiqjerienoe running horse, driving a float, bres-king in animals and driving a wagon.

The next witness was one S. Mandella.

He was standing at the oorner of Canal and Chartres Streets at the time of this aooident. "Going into May's old Drug Store at the oorner of Chartres and Canal and coming down to the oorner I saw plaintiff on the opposite side of the street; everybody was looking towards Chartres Street and as I got to the oorner I saw this horse running.away and the buggy ran up against a float; the horse continued running up Canal Street and went up Camp Street; the' officer in charge tried to stop him but he could not; knows plaintiff very well, lives across the street from hiB house, saw the horse knock plaintiff down and several people pioked him up and brought him in-

0. ¶. Miller another wintess for plaintiff.

He did not see the aooident but subsequently going into drug store saw plaintiff sitting in one of the arm ohairs; found him very weak and nervous and he looked to be hurt inwardly; worked in the same offioe that plaintiff worked.

Plaintiff himself was the next witness and substantially his statement is to the following effeot:

"I was leaving the offioe to go home about five o'olook in the evening, crossing Chartres Street, X was very careful, crossed over and took the best pavement to get to the Prytania Car; X saw a young man;I didn't know who he was and from his actions and his looks I beoame satisfied that there was something wrong and I tried to get over to the Godohaux side of the Street; I didn't know what was coming and I oould not avoid it and this horse was ooming along; I heard his hoofs and he threw me down and injured me, my leg was blaok and blue, my arm was all bruised and I was in a very nervous state; in the drug store they gave me something to quiet my nerves; afterwards was taken home and attended to there." In speaking of his injuries, plaintiff says "I suffered quite a long while and I still have not got the use of my left arm as I had it before this accident and I suffered possibly for two months afterwards, I could not get out my ledger, being a bookkeeper, and hsd to be assisted in having the book hxEgk brought to me and it took several months before I oould help myself and even today I havn't got the power I formerly had.

On cross examination of this witness an attempt was made to prove a compromise had been offered by plaintiff; that he had. agreed to aocept the sum of $40.00 in full settlement of his oalimj the plaintiff absolutely denied making any such offer and if he had it not being in writing, oould not be used in this. case.

For defendant the witness first to testify was Mr. Felix Rouseo,

When asked these' questions:

Q. Hie are investigating an aocident that occurred on September 18th, 1917 about five o'oloolc in the evening when Mr. Meyers the plaintiff claims to have been injured by a horse owned by Mr. Frank Rouseo, whioh ran away; will you relate in your own way wh&t you know about that sac aocident?

A. Yes sir; that animal got soared on Chartres between Canal & Customhouse from a mo.toroyole.

Q. Were you driving that horse?

A, Yes sir.

0,. Tell the Court what happened?

A. He go soared by a motoroyole on Chartres between Customhouse and Canal and he made two or three springs end hit the float,

0. Were you thrown from the buggy at the time of the oollission with the float?

A. Yes sir.

o. You were knocked unconoious?

A. yos sir.

o. You know nothing ehout the accident to the . laintiff in this os.se?

A. He sir.

Q. V.'-. a ;h..t hor3e vicious animal?

A. Ho sir? he is a pie' 3ing sninnl, I hove driven him for tv/c years.

On cross examination this -witness persisted that this w s i- gentle xkx horse uid the accident occurred through fr:. ht from the motorcycle.

F. E. Dole, the next witness for the defendant did not see this aooident; knows the horse in question. is a fine driving horse and sorrel; has known that horse for six or seven years, he was a tsne and gentle animal; had driven him fifty or sixty times all over the oity, over parades and everywhere else, never heard of that horse running away before.

The next witness, Joseph Sarro, knows kx nothing of the aooident in question; knew the horse for a long while; he is a very pretty shrrel horse, a fanoy horse, gentle, easily guided, any lady oan drive him; never knew or heard of his having run away prior to this time.

We have thus substantially given the main portions of the testimony of all witnesses who testified in this oase, pro and oon. It is very evident from the testimony particularly that of the offioer who knew the animal for a long time, had oooassion on his beat to watoh him very olosely; he was a very fiery horse and on evejy oooassion that it was possible to turn the semiphore to give the horse the right of way he did so in order that no one would be injured; he has no interest in this oase whatsoever and has thoroughly explained to our satisfaction his knowledge of animals girsx prior to his beooming a policeman and we are satisfied that his statements are true in every partioulcr; he saw thief aooident, oould not prevent it beoause he was afraid of the animal in question, knew his oharooter, that if he attemped to oheok him he would either be seriously injured himself or killed outright.

The other tesxti witnesses' testimony from which we have quoted satisfies us that the. plaintiff in this suit was injured just as testified to by him and that from the injuries after being attended to at the drug store subsequently employed a physioian, bought medicines and for quite a while, although going to his business the very next day, he became a hkxxxkk nervous man and besides being a bookkeeper oould not handle his ledger but was compelled to have others do it for him.

The son of the defendant who we.s driving the animal claims that the accident occurred because a motoroycle ran into him, the horse run away and collided with a float knocking the buggy to pieces and throwing him therefrom knocking him unconcious so th'.'.t he h d to be telcen to the Chsrity Hoccital for, at tsntion.

It is a strange coincidence that no one heard or saw the motoroycle in cuestión save end except un this witnejs*. If is/fortunate, if it be true, that there were no other witnesso: present to testify to the same fc.ot, if it w: s a fact. Being uncon-oicus he was unable t.nd did not see plaintiff in this case at the time of the accident nor afterw-rds; beyond his te-timony the testimony of the other witnesses on behalf Of the defendant do no impress us very favorably; they all testify as to this being a gentle horse,never vicious, ooul.i be driven by a Iddy and ther testimony to like effect. We áre inolir.ed to the believe tlr. t this is not true; the character of this horse ia established by the e-trolman in thi3 o< se who he,d seen this horse time and again, had watohed his movements, knew he vr. 3 ¿, vicious ;ni..al and not . ishing tc see ..r.ycne hurt always gave 'chis horse the right of way.

For Sunt, t.-ly for the defe.. 1'nt in this oase, I-, intiff was not seriously hurt but t. stroks of this oh -renter, irrespective of the bodily injuries i3 sufficient to justify a reescni'tle judgment such t.s rendered by the lev-rnel Jud e in this evse.

We have onrefully examined this record; vie have read every line of the testimony, pro and oon, and we are convinoed plaintiff has maintained his aotion Just as the Court aquo decided he had.

Issues of fact mainly involved.

"The owner of an enimel is responsible for the damage he h.s caued and the burden is on the owner to prove that he was without fault, and did all that Was possible to prevent the aooident.

An owner, knowing the oharaoter of the horse, uses him in frequented places, does so at his own ris k; it is only where the happening oould not reasonably be anticipated by him, that the risk may be said to be assumed by the public."

Aymani vs. Frank Russo, 6th Court of Appeal, p. 169.

For the Seasons assigned it is ordered, adjudged and deoreed that the Judgment of the Lower Court be and it is hereby affirmed, with oosts of both courts to be paid by the defendant.

-Judgment Affirmed-