Schlater v. A. Wilbert & Sons

The opinion of the Court was delivered by Fenner, J. The counsel for plaintiff, who is appellant, complain in their brief of sundry rulings of the judge in refusing to permit amendments to their petition, in rejecting evidence, and in refusing certain charges to the jury; but, at the conclusion of their brief, they say: “We pray your honors to examine the case and render such judgment as should have been rendered in the lower court. We pray your honors not to remand the case, but to end it.” We are bound to treat this as a waiver of those exceptions which involve the judge’s rulings in denying the amendments and in rejecting evidence j because the only effect of the sustaining of such exceptions would be to remand the case against the express desire of the exceptor himself. Of course, it would be impossible for us to try the case on pleadings not put at issue in the court below or on rejected evidence not appearing in the record. So far as the errors complained of in the charge of the judge are concerned, the full jurisdiction of this court over the law and the facts in [409] civil cases, enables us to take the case as established by the evidence in the record and to apply the law correctly, regardless of any errors which may have been committed below. Terrell vs. Boarman, 34 Ann. 306; Vredenburg vs. Behan, 33 Ann. 627. Plaintiff claims damages for injuries occasioned by a collision between a buggy in which she was riding on a public street in the town of Plaquemine, and a car loaded with lumber which was crossing said street upon an inclined tramway operated by defendants to convey lumber from their saw mill on one side of the street to their lumber yard on the other. The evidence shows that defendants had been operating this tramway in the same manner for a number of years and that plaintiff, as well as her driver and horse, were familiar with it and were in the frequent habit of crossing it. On this particular occasion, she was approaching the crossing in her buggy driven by a Mr. Davis, in broad daylight, when a car loaded with lumber was about starting down the incline, attended by two men who hold it on its descent to prevent its going too rapidly. One of the proprietors had gone down to the street, before it started, in order to give “warning to any passengers on the street. As the car started ho saw this buggy approaching and hallooed to hold back and waved his hat to them. He testifies that the driver, Mr. Davis, observed him and bowed his head, but, instead of stopping, continued to move on. The car descended slowly and the horse in the buggy was moving in a walk. After getting through a mudliolc distant about thirty feet from the tramway, the driver pulled his horse to the loft and struck him with the rein, quickening his motion, and directing him diagonally towards the line in which the car was moving, trying to cross ahead of it; but going too near to the car, some of the projecting planks loaded thereon caught in the wheels, lifting them and throwing out the occupants, resulting in the injuries complained of. The buggy, however, was not upset, but righted itself, and the horse ran away. It is useless to comment on the evidence. We have studied it with great care. We think it establishes, beyond a doubt, that the accident was caused by the gross negligence and rashness of plaintiff’s driver, who was in full view of the moving car and was also warned of its approach in ample time to have halted and to have avoided injury. He disregarded the warning and Continued to move forward in a rash attempt to head off the car and cross before it. In so doing, he drove too close and the projecting lumber caught in the wheels. The jury did not err in finding a verdict for defendants. Judgment affirmed.