On the Merits.
The testimony is voluminous, and as is usually the case where there are many witnesses to an occurrance, no two persons see it alike or give the same version of occurrences, and it would be folly to attempt to reconcile them.
Without referring to any of the testimony specially, we will set out what we believe, from an examination of the testimony, to be the issue, and from those form our conclusions.
The legal proposition is clear that it was the duty of the defendant to employ skillful and competent servants; that the boat, •upon reaching its landing place, should have been securely tied or made fast before removing the “exit bar,” which permits passengers to disembark.
The testimony shows that the person ‘employed 'by the defendant, if not actually unskillful in the discharge of the physical task imposed upon him, certainly possessed a very low'order of intelligence, evidenced by his act in removing the bar immediately after tying the bow-line and before looking after the stern-line, and otherwise seeing to it that the boat was properly landed and touching its wharf from stern to stern, as should have been the case. His act in removing the “exit-bar” very naturally invited *364the passengers, and was an assurance to them that they could, with safety, leave the boat.
Among the passengers leaving the boat was the plaintiff, who, not as fortunate as the others who had preceded him, fell between the two boats, narrowly escaping death by drowning or by being crushed.
Under this statement of facts, “was the defendant guilty oi negligence?” We believe, unquestionably, and it was chargeable with gross negligence, but, says the defendant, even though we are chargeable with negligence, we are relieved of all liability by reason of the fact that the plaintiff contributed to this accident and his consequent injuries through his own negligence.
It is tiue that the jurisprudence is well settled that contributory negligence on the part of the plaintiff is a bar to a recovery, although the defendant be in fault, our own reports teeming with decisions to that effect.
Let us now see whether in the case at bar, the negligence with which plaintiff is charged is of such a nature as to bring it under the application of the doctrine just stated.
Plaintiff, himself, testifies that he knew that the stern line had not been tied when the “exit-bar” was shoved back, and therefore it is defendant charges plaintiff with negligently attempting to leave the boatpwell knowing that it had not been made fast in the stern.
Say the defendant, plaintiff should not have left the boat until the stern line had been tied.
From our appreciation of the testimony we find that the stern line was not always if ever tied, as a condition precedent to permit passengers to leave, and, therefore, we do not see why plaintiff should have had reason to believe that it would be tied on the night of the accident, especially when he had seen the defendant’s servant push back the “exit-bar,” a notice that the boat is moored *365or landed. Had not a number of other passengers preceded him?
Another indication to him that all was well and safe: “Is is an act of negligence for the company or its servants, to let down the chains before the boat is properly secured to tire bridge which guard the passengers from tire ferry-boat to the bridge; for thereby the passengers are assured that the boat is properly secured and the passageway safe for exit.”
(American and English Encyclopaedia of Law, Vol. 7, p. 949.)
The fscts in this case, we think, warrant US’in applying the very reasonable doctrine laid down in McGuire vs. Railroad Company, 46 An., p. 1554, the court saying:
“We are safe, we think, in affirming as a rule of protection to life and limb, that neglect or imprudence of persons injured by railroad accidents will not shield the company from damages, if, with proper care, their employees in charge of the train can avoid the injury and fail in that care. Thus qualified, contributory negligence is not to be deemed a license for recklessness and neglect. The qualification is aptly stated in a recent decision of the Supreme Court of the United States, and in our appreciation finch application to this case. Although the defendant’s negligence may have been the primary cause of the injury, yet an action for such injury cannot be maintained if the proximate and immediate cause can be traced to the ordinary care and caution of the persons injured. Subject to this qualification grown up in recent years, that the contributory negligence of the party injured will not defeat recovery, If he shows the defendant might by the exercise of ordinary care and prudence have avoided the consequence of the injured party’s negligence.”
The testimony shows that the defendant’s negligence in this cause consists primarily and is traced to its exercise of too great economy, there being combined in one person on the night-ferry the duties of a fireman, a bow-line tender, a bar (exit) tender, *366and a stern-line tender, these duties on the day-boats being attended to by as many different persons. It appears to us that even greater care was required at night.
May 29th, 1905. Rehearing refused, June 26th, 1905. Writ refused by Supreme Court, August 8th, 1905.From an examination of the record we are satisfied that the quantum of damages fixed by the Judge a qua is not inadequate-nor excessive. Plaintiff’s injuries were, we think, quite severe and very painful, and deem it safe to adopt the conclusion of our learned brother of the lower court who heard the witnesses and saw and examined plaintiff’s wounds, who said that “considering the whole evidence in this case I do not think the plaintiff’s injuries are of a permanent character. He, seems to go about as usual, has attended the trial of the case both in 'Gretna and New Orleans, does not seen to have been incapacitated from attending to -his work, and an allowance of Five Hundred Dollars ($500.00) seems amply sufficient to compensate him for the injuries which he received.”
The íeasons of the judge here given have reference to the permanency of the plaintiff’s injuries and his ability to attend to his usual work, and has no reference, as we appreciate the testimony, to his condition for a period following the accident, as proof is made that plaintiff employed some one to replace him at his post in the brewery in which he was employed, and the doctor’s fee and drug bill had to be met.
We are of the opinion that the judgment appealed from does substantial justice, and it is affirmed.