Thiel v. Shiff , 1928 La. App. LEXIS 64 ( 1928 )

CLAIBORNE, J.

The defendant was driving a truck upon which was loaded an iron bed.

The legs of the bed protruded about 18 inches from the sides of the truck. He drove the truck along the road of the Industrial Canal Bridge.

Plaintiff was standing on the sidewalk adjoining the road. As the defendant drove past the plaintiff the front leg of the iron bed protruding from the side of the truck came in contact with plaintiff, knocked him down and injured him. Hence this suit. The negligence and fault of the defendant are clearly proven and there is no doubt of his liability for his fault and the damage caused by him. The trial court rendered judgment in favor of plaintiff for $500. The defendant has appealed, and the plaintiff has asked for an increase of the judgment.

The damage suffered by the plaintiff is stated by his attorney in his brief as follows: He was injured on April 1st and was unable to work until June 22nd. He was earning $100 a month. He was paid his full wages by his employer less $110.86. Therefore that sum represents his actual loss, and $389.14 the amount allowed him for his suffering. The plaintiff remained in the Charity Hospital four days, in bed at his home one week, and visited the Charity Hospital during two months; it does not appear how many times; during all that time he suffered from his ribs and from a bruise mark on his cheek; on his left side near his heart he had a black and blue bruise mark about three inches square; no bones broken, no permanent injury; five months after the accident he still suffered pain in his chest when he coughed.

The defendant is driver of an automobile truck and has been for nine years, and is also a furniture dealer by occupation. In estimating the amount of damages to which plaintiff is entitled the ability of defendant to pay must be taken in consideration. Board of Control vs. McRoyes, 48 La. Ann. 1061, 20 So. 182; Loyacano vs. Jurgens, 50 La. Ann. 444, 23 So. 717; Payne vs. Morgan’s La. & Tex. R. & S. S. Co., 38 La. Ann. 164; Daly vs. Kiel, 106 La. 170, 30 So. 254; Means vs. Ross, 106 La. 175, 30 So. 300; Cognevich, In re, 124 La. 420, 50 So. 439; Jackson vs. Briede, 156 La. 573, 100 So. 722; Jacobs vs. Treyhan, 156 La. 585, 100 So. 726.

We see no reason to increase the amount of the -judgment. Vining vs. Lock, Moore & Co., Ltd., 1 La. App. 200; Jane Hampton and Husband vs. La. & N. W. R. R. Co. 2 La. App. 171; Brugier vs. Todd Bros. Auto Co., 2 La. App. 741; Becker vs. Ill. Cent. R. R. Co., 2 La. App. 745; Grier vs. Hamilton, 3 La. App. 120; Davis vs. Dixon, 5 La. App. 344; Hight vs. Casanas, 6 La. App. 30; Board of Com’rs of Caddo Levee Dist. vs. Glassel, 120 La. 400, 45 So. 370; La. Grove vs. City of New Orleans, 114 La. 253, 85 So. 160; Allen vs. Town of Minden, 127 La. 403, 53 So. 666; Simmonds vs. Southern Rifle Club, 52 La. Ann. 1114, 27 So. 656; Plescia vs. Le Roy, 148 La. 316, 86 So. 824; Cuneo vs. Joseph Ariatti, 154 La. 609, 97 So. 878; Shelton vs. Masur, 157 La. 621, 102 So. 813.