On the twenty-seventh day of September, 1870, the. defendant and his driver, with a horse and vehicle belonging to the former, stopped at a grocery store on the corner of Annunciation and Robin streets for the purpose of selling vermicelli. Defendant and his driver left the animal unhitched, and with no precaution to guard against Ms running away. While thus negligently and carelessly suffered to remain, the horse took fright and ran away with the wagon through the fence of Coliseum Square, and damaged the same to the amount of $6'00, as the plaintiff alleges, and for which sum prays, judgment against the defendant. The defense is a general denial.
The court gave judgment for' $20 and costs, and the city of New Orleans has appealed.
*783There is no doubt that the damage was occasioned by the gross negligence of the defendant or his driver, and that the plaintiff should recover judgment for the amount thereof. i
It is shown that the city lias-incurred the expense of $500 in repairing the railings; but, on the other hand, it is contended that the railings were not in good repair at the time the damage occurred, and such seems to have been the fact.
It is in proof that the defendant estimated the amount of the damage at $250. We have concluded to fix the amount of the damage at $375, the medium between the estimate of the plaintiff and that of the defendant.
It is therefore ordered that the judgment of the court a qua be annulled, and it is ordered that the plaintiff recover of- the defendant $375, with five per cent, per annum interest from judicial demand and costs of both courts.