83 So. 362 | La. | 1919
This is an action by the father and mother, S. O. Ferrand and wife, against the defendants for the death of a minor son, Sam Ferrand, alleged to have been caused through fault and negligence of one Charles Beardon, while employed by and engaged in the business of the defendants.
The answer admits the death of the child, denies the negligence, and pleads contributory negligence on the part of' the deceased.
The demand was for $5,000 on behalf of each of the plaintiffs, and the further sum of $453.50 for sanitarium fees, doctor’s bills, etc., incurred in an effort to save the life of their son.
The case was tried before the judge below without a jury, and submitted upon a note of evidence taken upon a preliminary trial of the said Charles Beardon for manslaughter, under a charge preferred by the father a few days after the death of the child. The father having died before the trial of the present case, his heirs were made parties plaintiff to the extent only of the demand for reimbursement of the expenses incurred as above indicated. There was judgment for the defendant below, and the plaintiffs have appealed.
The record is short, and the facts disclosed thereby are as follows:
E. H. Fisher, superintendent of public schools for Bienville parish, residing at Arcadia, La., drove a new Paige car from that town to Ruston, La., and, the engine having become very hot, -took it into the garage of the defendants, at the latter place, to have the trouble remedied. Beardon was a young mechanic,' about 20 years of age, employed by Cook & Co., and to whose lot fell the duty of adjusting the car. Being unable to locate the trouble in the shop, he decided to drive it around the streets a while, in order to better determine what was wrong. He and Fisher got in the car, and drove south over the street on which the garage was located a distance of two or three blocks, to the crest of a hill, and then turned east at
Young Ferrand was taken to Monroe, La., on the first train, where he lingered 'from the 14th to the 19th of June, without regaining consciousness, and on the latter date died as the result of his injuries.
At the time of the collision, deceased, together with a number of other small boys about his age, were engaged in playing a game called “board down,” played somewhat similarly to “hide and seek,” except that, instead of the one who is to do the finding hiding his face and counting at the base while the others hide, he is required to throw a board or stick as far as he can, then retrieve it, and put it against the base, before beginning to search for those who have hidden. It having fallen to his lot to do the hunting, just a few moments before the collision, he had thrown the stick or board across the street, his playmates had dispersed to hide, he had run across the street to get the stick, and was doubtless returning to place it against the base when struck by the automobile. 'It is entirely possible that his mind was concentrated on the game, like that of Beardon on the car, and that he did not pay attention to
The only other person who witnessed any of the circumstances immediately preceding the collision, besides Fisher and Beardon, was an old negro washerwoman, on her way to deliver her week’s wash, who had stopped on the south side of Arizona avenue, at the crossing of Bonner street, to permit the automobile in question to pass. She saw the children on the south side of the street as stated by Fisher, saw the deceased run across the street, and pick up something, and says:
“He was running along by the side of it (meaning the car) for a while, and I reckon the dust hid him from me.”
All of the other witnesses appeared on the scene within a few moments after the accident, and the fact is undisputed that young Ferrand was picked up on the south side of the street, with a wound on the right side of his head.
Thus the statements of Beardon and Fisher are in some measure corroborated by the other witnesses.
Beardon died during the epidemic of influenza in the fall of 1918.
Opinion.
The lower court heard and saw the witnesses, and should have been better able to judge of their truthfulness than we are. There is nothing in the record to dispute them, except the eircutastance of the child turning and running suddenly in front of the ear, and, taken all in all, we can hardly permit this to outweigh the other positive evidence in the case, some of which is corroborated by other witnesses and circumstances.
We must conclude, therefore, that the deceased was guilty of contributory negligence, which continued down to the moment of the accident, and which bars plaintiffs’ recovery, notwithstanding the negligence of the defendants’ agent.
For the reasons assigned, the judgment appealed from is affirmed, at the cost of the plaintiffs.