New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-04-28


Appeal from - SIxth District Court Tor
tie parish Of OfI66na Aotioh IN dnmAge6
alleged to have been caused BY care1essness
Of defendants n running over the child Of
plaintiff, aged eight years, and cutting OF
ono Of His leess Verdict end judgment ia
favor Of plaintiG, Geprge Hubenef, e
natural guardian Of tho child, for $500, and
in his own right Of t25oO. Appeal BY de-
The child, Charles Hpbener. testified that
he was coming down St. Charles street in
one Of tho horse cars Of the company; that
some ladies got in, and he rose and gave
them his seat, and went out on the front
platform; that while there, another boy
crowded him off. He fell backward, yet
fell ON his face. This was near Calli0Pe
street. He saw the steam train coming out
of the depot at Hvoli circle before, ne tell.
Hc then stumbled, according TO ms own
account, backward under the wheels OF INC
upward bound steam train, and sunered the
injury from which the suit originated.
The following questions and answers are
taken from the record of his testimony:
Question. As you fell from the car, you
say you fell backward from the platform
8. Aud your legs a. you say, fell ON the
steam car tracki A. Yes, sir.
O. At the time the car ran over you, were
you standing up with one foot out, OF were
Won ON the ground, TALENT A. i stumbled.
o. But did you stumble and fallf A.
stumbled off the horse car, over the middle
horse car track, with my leg on the steam
track. f 81 ~
Il lie clearly shown by witness of plain
tiff that the distance over which the child
declared he thus Fs'etumbled backward
was nineteen feet eight and one-quarter
inches. 1t was shown, also, to be made up
a. follows: From the down horse track to
the up horse track, six feet; up horse track
in width. four feet eight and one-half
inches; from up horse track to river or left
side of steam track, about nine feet; and
that between the tracks there were drain
ing cutters, and between the up horse track
and the eteam track there were piles OF
rubbish, some as high as two feet.
But furthermore, the evidence establishes
that the child was run over ON the night
hand side of the steam track going up on
the swamp side, which would increase the
distance over which ne stumbled backward
to about twenty-fou feet, or, - . witness
inches. And it must be further noticed
that to have got from the car from which
he was pushed to the rail on which his leg
was crushed. he must not only have STUN.
bled backward over two cutters, two sets
Of railway tracks and some piles Of rub.
bish, but must have passed over or under OF
around q steam train, by one of the rear
cars of which he was injured, his leg lying
ON the right hand, or 'sswamp side" rail.
We apprehend that we shall not be asked
in earnestness to believe this story; not
falsehood- il not necessary to say bat
but he was little child when the accident
occurred, and he was still child when the
trial took place about q year after. "When
. child is Q Witness" says Mr.. Ram in his
'sTreatise ON Facts" p. Isl, sit will be
natural to receive its evidence with proper
canton. A child may be very quick to per.
ceive3 Alright some things which it sees OF
hears, but from want Of knowledge or exper.
fence it may perceive imperfectly other
things it sees or hears. In seeing it may
ing may misunderstand words, and for
those which it heard may substitute others
Of . very different meaning. And there ia
danger lest . child should know something
from its imagination, or from what it has
heard other people say, and 90 amplify facts
beyond their just measure
But child is naturally artless, and
means to speak the truth. 1t is not to be
forgotten, however, that child is open to
10 UGKUllCus U1f3oCOS kuAuCuCCO VI kuOAAAE-
dated by the false representations or the
promises or threats of designing persons. "
To this it may be added that the memory
Of children is very treacherous, and their
Judgment of time, distance and cause and
effect very defective. Peter Lurges, q boy
of twelve or thirteen, testifies in o very
credible manner that he saw the accident;
that the boy Charles Aubener jumped on
the steps Of the steam car ON the swamp
side of the track, and then slipped of, and
30 was hurt. go A,
The attempt made to contradict his
statements in some particulars was q
signal failure. Record Up. 468 to 473; Cole
man. p. 284l testifies that the boy Hubenez
stated to him that he got hurt trying to
jump ON the steam ear. Mrs. Bevans, who
nursed the boy. says he told her Up. 4l5),
II was ON the steam car and the boy
pushed me of, and the steam car ran over
me-" TH f
The testimony Of Flanagan, witness re.
siding in the parish of Jefferson, was taken
BY commission and then excluded by the
Judge because another witness had stated
casually, on crOss-examinatiOn at the trial
that he had seen Flanagan in the city that
morning. The defendants reserved q bill
Of exceptions to this ruling, ruling clearly
erroneous. 8E 1i5
The testimony had been regularly taken
&c. p. 425), the witness resided in another
parish, and we fail to perceive how the fact
that another witness had seen him in the
city that morning, could establish the
ability of the defendants to produce him in
court or cast on them the duty
of doing 80. His testimony Up. 78),
which should have been laid before the
jury. shows that the boy Hubener was
playing about the steam cars about the
time they started, changing on the steps,
and that he told him to go away from
there or he would get hurt. The state.
ments Of the boy Kline, for plaintiffs, are
not in necessary conflict with those quoted
for the defense
We gather from the record as a whole
that the boy may have been pushed from
the platform Of the horse car, as he says he
was, but that this fact has NO Sausative re-
lati0n to the subsequent injury, any more
than if it had happened an hour or q yea,
before that finding himself left behind, he
went across and attempted to amuse him
self by jumping on the platform Of the steam
cars, which we're moving slowly up on the
further side Of the street, or neutral
ground; that he probably had time to cross
the steam track before the train came up
and when he attempted to get on jumped
up from the swamp side.
1t was at this moment that young Lurget
saw him, and . moment after he fell and
was injured. "He was jumping on" says
this witness Up. 2ol), with his two knees
this steam train; the company owed him nc
duty than they owe to all who walk the
streets-the duty of running their traini
lawfully and carefully. The train wal
running very slowlv and carefully and il