Queen v. Manheim , 9 La. App. 312 ( 1928 )

WESTERFIELD, J.

Plaintiff was struck and injured by an automobile. He sues for damages. Prom a judgment for plaintiff for $250.00, defendants have appealed.

In this court the defendant, Bernard Manheim, through his counsel, admitted liability, his co-defendant, J. K. D’Avricourt, persists in his denial of responsibility.

The plaintiff was standing, at the corner of St. Charles Avenue and Third Street, waiting for a street car, when the defendant, D’Avricourt, drove his heavy Cadillac car upon the neutral ground, striking and injuring him, in the manner set forth in his petition. D’Avricourt contends that he was forced to drive upon the neutral ground because any other course would have resulted in a collision with the Ford car, owned by the defendant Manheim, and, at the time of the accident, driven at a high rate of speed.

The Ford was proceeding across St. Charles Avenue from the lake to the woods, and the Cadillac going up St. Charles Avenue, from the direction of Canal Street' towards Carrollton Avenue. The evidence convinces us that the accident was due to the fact that the speed of the Ford car was excessive, and its driver failed to stop before entering the avenue, and, that the Cadillac, which had the right of way, was driven upon the neutral ground in an effort to avoid a collision with the Ford, which seemed imminent. Unlike the trial judge, we attribute the cause of the accident solely to the negligence of the driver of the Ford car and absolve the driver of the Cadillac car.

The nature of the injuries sustained by plaintiff is said by his physician to be “a sprained ankle and partial detachment of the ligaments tying the bones together in that ankle.” His foot was bandaged and he was confined to his room for fifteen days. He had been engaged as a janitor of a church on Napoleon Avenue and S. Robertson Street, at $50.00 per month, his employment to begin about nine days after the accident. This position he lost because of his injuries. He payed his doctor $50.00, in addition to $7.50 paid to a radiologist fo‘r an x-ray. Under the circumstances it seems to us that an award of $250.00 is inadequate. It should be increased to $350.00.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff to $350.00, and as thus amended, affirmed as against the defendant, Bernard Manheim.

It is further ordered that there he judgment in favor of J. K. D’Avricourt dismissing plaintiff’s suit.