Calhoun v. Northern Insurance Co. of New York

AYRES, Judge. For the reasons assigned in the companion and consolidated case of Page v. Northern Insurance Company of New York, La. App., 117 So.2d 279, wherein it was concluded that the accident involved was caused solely and only through the fault and negligence of the driver of the Stinson automobile in striking plaintiff’s machine from the rear and hurling it into the opposite lane of travel immediately in front of the motor vehicle of Roger G. Page, we find no error in the judgment appealed, so far as concerns the question of liability, inasmuch as there was no proof warranting or justifying any finding of contributory negligence on the part of plaintiff. Plaintiff was awarded $500 for the injuries sustained by him, consisting of a broken arm which was set and remained in a cast for six weeks. For this injury and for the pain and suffering necessarily endured as a result thereof, plaintiff urges, in brief, that the award should be increased to $2,000. Plaintiff, however, neither appealed nor answered defendants’ appeal and, therefore, we are without authority to increase the award in his favor. Suggestions made in brief cannot be considered in the absence of an appeal or an answer to an appeal taken by the opposing party. In response to defendants’ appeal, we may say that the award does not appear excessive. Accordingly, the judgment appealed is affirmed at defendants-appellants’ cost. Affirmed.