This is a suit for damages resulting from a collision between two automobile trucks at a point not far south of the town of Ponchatoula, on the Hammond-New Orleans highway, at about 2 o'clock of the morning of July 24, 1931.
Plaintiff who had gone to New Orleans in his truck to get a load of fish which he retailed at his place of business in Amite was on his way back home, and was therefore driving north. Defendant's truck, being driven by a man named Martin, was on its way from McComb, Miss., to New Orleans, carrying a load of milk. In the truck with Martin was a young man named Riley Hancock, whom he had picked up on the road. This party did not testify in the case, but there is a stipulation in the note of evidence to the effect that, had he been put on the witness stand, his testimony would be substantially the same as that of the witness Martin, driver of the truck. With the plaintiff, in his truck, was a negro named Pink Anderson, who happened to be driving at the time of the accident.
Plaintiff blames the driver of the defendant truck for careless and negligent driving and for being on the wrong side of the road and running into his truck, causing it to be damaged to the extent of $550. He also claims to have lost his load of fish valued at $62, a bottle of medicine worth $2, and the loss of two days from his work, which he values at $10 per day. In addition, he alleges that he had to pay $5 for wrecker service for towing his truck from off the highway. His total demand is for the sum of $639.
The answer of the defendant is virtually a denial of all the allegations of the plaintiff's petition, and it contains a counter charge of negligence on the part of the driver of plaintiff's truck in being on his wrong side of the road and not heeding light signals to get on his right side so as to let the defendant truck meet him in safety. By reason of that negligence the defendant in a reconventional demand asks for a judgment against plaintiff in the sum of $305 for damages which are itemized as follows: Damage to the truck, $225; value of 15 cans of milk that were destroyed, $30; five days' loss of the use of the damaged truck at $10 per day, $50.
The judgment of the lower court, strange to say, declares the evidence and the law to be in favor of the plaintiff and against the defendant, but the decree is in favor of the defendant and against the plaintiff, dismissing his suit at his costs. As it is the decree *Page 678 which controls, the judgment, therefore, is one in favor of the defendant. It is, however, silent with regard to the reconventional demand presented by the defendant. Plaintiff took an appeal in open court, and at a subsequent date defendant also obtained an order of appeal, and it now urges upon us that the judgment should be amended by awarding the damages claimed under the reconventional demand.
The case is one in which the testimony is rather conflicting. There was an equal number of witnesses on each side, and these are also divided equally on the different points involved in the testimony. The two witnesses who were in the plaintiff's truck testify favorably for the plaintiff, and the two in the other truck testify in the same way for the defendant. We say the two in defendant's truck, because the admission placed of record with regard to the witness Hancock, who resided in the state of Mississippi, virtually makes him appear as testifying in the same manner and to the same facts as the witness Martin who was driving the truck. If any one of the witnesses is not as positive as the others in his testimony, it is the negro Pink Anderson, who at the moment of the collision was driving the plaintiff's truck. He is rather vague and indefinite in his account as to how the accident occurred. A witness named Anglade, night marshal of Ponchatoula, who arrived at the scene after the accident, testified that the marks from the wheels of defendant's truck were east of the center line of the pavement, and, on the other hand, we have the witness Montagut for defendant, who also arrived some time after the collision, who says that the marks of the wheels of plaintiff's car were west of that center line, which was on the side the defendant's truck had the right to be.
There is one fact, however, on which there appears to be no contradiction, and that is that, after the collision, the truck of the plaintiff was on the west side of the road, which is the side upon which defendant's truck was proceeding on its way toward New Orleans. This fact favors the version given by Martin, the driver of the defendant's truck of how the accident occurred, and justified a finding by the trial court in favor of the defendant.
The case does not impress us as one in which the accident was due to the fault of both drivers of the trucks. The lower court did not find the defendant's truck driver at fault, as otherwise, it seems to us, it would have rejected defendant's reconventional demand. As we are of the opinion that the testimony favors the defendant and shows the driver of plaintiff's truck to have been at fault, it is necessary that we decree a judgment awarding the defendant the damages which it has proven in reconvention. We find sufficient evidence to support the item of $225 for damages to the truck and also for the $30, the value of the milk that was lost. The item of $50 for loss of the use of the truck has not been sufficiently proven, and will not be allowed.
For the foregoing reasons, therefore, it is necessary to amend the judgment of the lower court, so as to make it read as follows:
It is now ordered, adjudged, and decreed that there be judgment in favor of the defendant, Inter-City Express Lines, Inc., and against the plaintiff, Tony Misita, rejecting the said plaintiff's demand and dismissing his suit, and it is further ordered, adjudged, and decreed that there be judgment in favor of the said defendant, plaintiff in reconvention, and against the said plaintiff, defendant in reconvention, in the full and entire sum of $255.00, with legal interest from judicial demand, and all costs of this proceeding.