ON APPLICATION FOR REHEARING
CARVER, J.In an able brief filed in support of their application for a rehearing defendants’ counsel quote from McGinn vs. N. O. Ry. & L. Co., 118 La. 811, 43 South. 450.
“Were we to sustain the verdict of the jury and the judgment of the court, we would have to ascribe fault to the defendant arbitrarily without any proof, and even really without any suggestion.”
And counsel say that much is the case here.
In the McGinn case a woman passenger on a street car alleged as her cause of action that after the car came to a full stop and while she was rising from her seat to leave the car the conductor gave the motorneer the signal to go ahead, whereupon the motorneer applied the power to the car which then went forward with great force, throwing plaintiff violently down in the' car.
No testimony was introduced to support these allegations. On the contrary, as a witness the plaintiff gave an uncertain, confused and somewhat contradictory account of the accident, saying that the car after stopping did not move either forward or backward but, on the contrary, claiming that something rose up under her. . Her son testified that he neither saw nor heard any signal to go ahead but that the car, after stopping, moved forward about half an inch, saying at one time that he saw but did not hear the jolt and at another that he heard it. He inferred that the motorneer must have applied the power.
The conductor and motorneer both testified that after the car stopped no signal to go ahead was given and the car did not go ahead.
The motorneer further testified that it was not possible for the car to move only half an inch under any way he had of feeding the power.
Pfeifer, a passenger, gave testimony so different from that of all the other witnesses that no notice seems to have been taken of it.
Mueller, the only other passenger, was positive that after stopping the car made no move either forward or backward.
In the Supreme Court plaintiffs’ counsel evidently recognizing his utter failure to prove the negligence alleged, or any other, seems not to have relied on any claim of proven negligence but asked for a judgment on the legal proposition that the contract between a passenger and a carrier for hire being one for safe passage, in case of injury a presumption of negligence arose which the carrier was obliged to rebut. The court said:
*55“The particular cause assigned by the plaintiff for the accident after the car had come to a full stop at her place of destination was that the conductor in charge of the car gave the motorman the signal to go ahead, upon which signal the latter applied the power to the car, which went forward with great force, throwing her down violently and breaking her leg. This has been disproved. We are satisfied that the car did come to a full stop as she alleges it did, but we are also satisfied that the conductor gave no signal to go ahead, and that the latter did not, in fact, do so. We fail to find any fact disclosed by the evidence which would warrant or justify us even in inferring that either of those employees had been guilty of negligence or failure of duty in any particular. The plaintiff does not pretend that the appliances of the car were not such as they should have been, nor does she intimate that the track was out of order. * * *”
And then added the quotation copied above on which defendant’s counsel rely herein.
We cannot agree with counsel that this is a proper-case in which to pursue the course taken by the Supreme Court in the McGinn ease.
The testimony of plaintiff and her sister, if true, is full proof of negligence on the part of defendant, and we do not find the contrary evidence, such as to warrant us in saying it is not, when the jury evidently believed it.
As to the testimony of the defendant’s witnesses, we deem it unnecessary to add anything to what was said in our original opinion concerning the glaring car lights and other things which easily could have interfered with their ability to make accurate observation of the occurrence.
The physical facts do not seem to us such as to require the inference drawn by defendant’s counsel.
If Gourrier turned to the right, getting off the pavement, and then just as or just after striking plaintiff turned to the left, getting back on the pavement, this, we think, might reasonably account for the location of plaintiff’s wounds and for her position and that of the car when it stopped.
The oncoming of what is called the “unknown car”—swerved to or towards Gourrier’s side of the road as it had to do to pass the Golden car—is a fact quite persuasive towards the conclusion that he did turn toward the right. If he did, and left the pavement, then he surely did make the left-hand turn, because when he stopped he was back on the pavement.
Premising that plaintiff and her sister were walking shoulder to shoulder at the very moment of the accident; that plaintiff was first struck on the left leg; that the inside point of the fender, which is evidently what first struck plaintiff, is 18 inches from the outside point, counsel argue that the account given by plaintiff and her sister cannot be true, because if so the sister would have been struck, which she was not.
None of these circumstances are proven and one at least is not true.
Plaintiff and her sister say they were walking side by side, but this does not necessarily mean side to side. If a foot or two apart, they might reasonably speak ofcthis as side by side.
The width of a Ford fender at its front end and for a few inches back is not 18 inches wide but only about 8 inches.
The plaintiff was dragged about 10 or 11 feet and various parts of her body were struck. It is guesswork to say which part of her body was struck first.
Defendant’s counsel complain that the damages allowed by the jury, $10,000.00, are excessive, and cite many cases where lower awards were made.
*56In our opinion most of these cases are not comparable to this one and in none of them were the injuries so serious.
Our original opinion fully states the extent of plaintiff’s injuries, amongst which were fracture of the skull, serious and permanent impairment of . vision and nerves, some injury to mentality and practically total destruction of earning power.
Amongst the cases cited by defendant’s counsel are four, in each of which $7500.00 was allowed. These are:
Miley vs. Saw Mill Co., 141 La. 484, 75 South. 214.
Knight vs. V. S. & P. Ry. Co., 142 La 357, 76 South. 799.
Dingle vs. Railway Co., 142 La. 717, 77 South. 513.
Clemmons vs. T. & P. Ry. Co., 148 La. 1050, 88 South. 394.
In the Clemmons case the only injury was the loss of a leg.
In the Dingle case the injuries were dislocation of right knee, splitting of one of the bones of the right leg, which the surgeons thought would necessitate her always walking with crutches, or a crutch and cane, and an injury, not described, but said to be serious, to her right arm, permanently impairing it to some extent. The court found that plaintiff was under no necessity of earning her own living, having devoted daughters who cared for her wants, and this consideration seems to have been an element in fixing the damages as low as was done.
In the Miley case the only injury was to a leg, though it was very serious, crippling Miley for life, but he could probably have his condition improved by having it amputated.
In none of these eáses was there any injury to nerves, eye or mind, which, in our opinion, are three of the most serious injuries which one could suffer.
In the Knight case there was no fracture of the skull and no injury to either eye. There was some mental impairment, though not very much; there was a possibility and perhaps a probability that this would grow worse.
Comparing the injuries in this case to those in the four above mentioned, we cannot say the jury erred in fixing the damages at $10,000.00.
Rehearing refused.