Lawn v. City of Monroe , 1928 La. App. LEXIS 176 ( 1928 )

STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, Pat Lawn, for the use and benefit of his minor son, George Lawn, sues the defendant, City of Monroe, for $15,000.00, damages alleged to have been sustained by his son in being pulled from the top of a truck-load of cotton on which he was riding on a public street of the City of Monroe by coming in contact with an electric light wire strung across the street by defendant as part of an electric light system owned and operated by it.

The defendant denied liability and alleged contributory negligence on the part of the injured boy.

During the trial defendant filed an exception to the capacity of plaintiff to stand in judgment for the use and benefit of bis minor son, alleging that tbe son bad, by judgment of tbe Juvenile Court of tbe Parish of Ouachita, been sentenced to confinement for an indefinite term in tbe Louisiana Training Institute at Monroe, Louisiana, and was actually confined in said institute under tbe judgment, in consequence of wbicb plaintiff was not tbe legal guardian of and bad not tbe care, custody or control of bis son, but that sucb guardianship, care, custody and control was in tbe said institute.

On these issues tbe case was tried and there was judgment in favor of tbe plaintiff for tbe use and benefit of bis minor son for $2,000.00, less a credit of $420.50 on account of expenses connected with the injuries received by the boy and paid by tbe City of Monroe, with legal interest on tbe balance from judcial demand.

Tbe defendant appealed, and plaintiff has answered tbe appeal and asks that tbe judgment be increased to $5,000.00.

OPINION

Tbe evidence shows that the City of Monroe was engaged in operating an electric light plant for profit and bad an electric light wire strung across south Grand street in that city and bad permitted it to sag to a point between eleven and a half and twelve and a half feet above tbe surface of tbe street and that plaintiff’s son was lying on top of a truck-load of cotton, tbe top of wbicb was ten and a half feet above the ground moving southerly on South Grand street. As to tbe manner in which be was injured, tbe boy testified:

"Q. You say you didn’t see the wires before you struck one of them?

“A. No, sir.

“Q. How were you lying?

“A. On my stomach, my face facing south.

“Q. Pacing tbe way tbe truck was going?

“A. Yes, sir.

“Q. Pacing ahead, with your bead and shoulders propped up on your arms?

“A. My bead thrown back.

“Q. Looking straight ahead?

“A. Looking over to tbe parish school.

“Q. Weren’t you looking the way you were going?

“A. No, sir.

“Q. Were you passing tbe parish school?

“A. Yes, sir.

“Q. Or very near it at tbe time this happened, and that’s what you were doing, looking that way instead of looking aheau?

“A. Yes, sir.

“Q. Tbe first you knew, tbe wire caught you under tbe chin?

“A. Yes, sir.

“Q. Knocked you off?

“A. Yes, sir.

"‘Q. That’s tbe last you know?

“A. Yes, sir.

“Q. You know about bow fast tbe truck was going?

“A. About fifteen miles an hour.”

Tbe evidence shows that tbe top of tbe load of cotton on the truck on which plaintiff’s son was lying and riding was ten and a half feet from tbe ground and therefore tbe wire that caught tbe boy under the chin and knocked him off the truck must have been from eleven and a half to twelve and a half feet above the ground.

In Williams vs. Louisiana E. P. Co., 43 Ann. 295, it was held to be actionable negligence for the operator of an electric light system to allow its service wires to bang so low above a public street as to interfere with ordinary traffic thereon, and that the wire in question was low enough above the street to interfere with ordinary traffic is proved by the fact that on two occasions it had been pulled down by vehicles attempting to pass under it, one of them a truck-load of hay and the other a truck-load of furniture; and notwithstanding this the defendant took no action looking to raising the elevation of the wire.

This was negligence on the part of defendant, making it liable in damages for the injuries suffered by plaintiff’s son.

Defendant insists that the boy was guilty of negligence and that his negligence contributed to the accident. We do not think the evidence shows this. It does not appear that the boy was aware of the presence of the wire or that he should have been aware of it, and but for the presence of the wire no harm would have resulted to him in consequence of his riding on the load of cotton.

Defendant’s negligence was the proximate cause of the accident and plaintiff’s son was not guilty of negligence and the defendant must respond in damages for the injuries suffered by the boy.

Defendant has not pressed, either in oral argument or in brief, its exception to the right 'of plaintiff to stand in judgment for the use and benefit of his son, and we assume that the exception is abandoned.

Plaintiff cites numerous authorities in support of his application for an increase in the amount of damages awarded his son, but considering the nature and extent of the injuries suffered by the boy we think the amount allowed ample. The injuries consisted of a slight fracture of the “outer table” of the skull above the left eye, from which the boy has entirely recovered, and the only disability remaining is a slight drooping of the left eye, lid which does not prevent the eye from being entirely closed, but does not enable him to lift the eye lid entirely over the eye. He was confined to the hospital for twenty-four days. His vision is not at ail affected in consequence of the drooping eye lid, nor is he at all. disfigured thereby. The boy testified that when his head gets warm it aches.

The District Judge, who heard and saw the witnesses testify and saw the boy as he appeared at the trial, gave plaintiff judgment for $2,000.00, less medical and hospital expenses, amounting to $420.50, paid by defendant, and the evidence does not enable us to say that this award was either too high or too low.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.