Giarruso v. New Orleans Ry. & Light Co.

SOMMERVILLE, J. This is a personal injury suit where plaintiff claims damages from the defendant because of injuries resulting to him from a collision between a wagon driven by him and one of defendant’s street cars. Defendant answers, denying plaintiff’s allegations, and alleges contributory negligence on his part. There was trial before a jury, a verdict in favor of the defendant, and judgment in accordance with said verdict. A new trial was applied for, and refused. [2] Plaintiff, in his petition, alleges numerous faults and acts of negligence on the part of defendant’s employes. In his testimony before the jury plaintiff contradicts some of these allegations; others are contradicted by witnesses called to the stand by him; and nearly all of them are contradicted by the witnesses for the defendant. These contradictions, taken together with the contradictory statements made by plaintiff while he was giving testimony on the trial of the case, together with his failure to remember those things which were or might be of importance to the defense, were clearly the causes of the jury bringing in a verdict against him. Under the circumstances, we shall affirm the verdict of the jury. [3, 5] Plaintiff alleges, among other things, that defendant was operating a Carondelet car over the Clio street track In Elysian Fields street; that the said Carondélet car was being operated in an opposite direction [561] from that usually run by the Clio car, that ■his wagon was struck by the car and he was thrown from it, and injured, without any fault on his part. He further alleges that the operating of the Carondelet car in that way was contrary to the contract entered into between the defendant company and the city of New Orleans. It becomes unnecessary to decide whether the defendant was operating the Carondelet car referred to contrary to its franchise privileges or not, in view of the testimony to the effect that said cars had been operated in the manner complained of along the track referred to for several years. The testimony of the witnesses for plaintiff and defendant shows that such action on the part of defendant company was known to persons in the neighborhood. Plaintiff testifies that he was not aware that the defendant company operated the cars in the manner indicated. Previous knowledge on his part becomes unnecessary to establish contributory negligence by him on the occasion referred to, for the reason that he testified in the recorder’s court, when the motorneer was on trial in that court, that' he (the plaintiff) saw the car coming a half block away. It is true that plaintiff denies, on this trial, that he saw or heard the car in advance of the collision; but his witnesses contradict him by testifying that he made an exclamation when he saw. the car, that he whipped up his mulqs, and that he turned their heads in an opposite direction. In view of all these circumstances, we are led to believe that he not only knew of the custom of the defendant company to run the Carondelet cars in the way they were run on the night of the accident, but, also, that he saw said car, and tried to cross the track before the car reached him. He took chances of crossing the car track which he should not have taken. The collision between the wagon and the ear was largely, if not entirely, due to the fault and negligence of plaintiff himself. He cannot, therefore, recover. The verdict and judgment appealed from are affirmed, with costs.