Empolyers' Casualty Co. v. Maecklin

WESTERFIELD, J. This is a suit for $228.00 brought by plaintiff, as subrogee of William Terry, against defendant, for damages, alleged to have been caused by defendant’s automobile. From a judgment as prayed for defendant has appealed. Defendant is the owner of the Swiss Confectionery, and his responsibility for the damages claimed is alleged to arise under the following circumstances: A motor truck operated by the Swiss Confectionery was parked on the left-hand side of Chartres street, between Press and St. Ferdinand streets, in front of a building owned by William Terry. Walter M. Duffourc was driving his Dodge Sedan down Chartres street and as he approached the truck operated by the Swiss Confectionery, it began to back across the path of the Dodge Sedan. Duffourc, in order to avoid a collision with the truck, turned to the left, and, crossing the sidewalk, ran into the Terry Building, with the result that it was damaged in the sum claimed. Plaintiff company, which had issued its policy to Duffourc, covering property damage caused by his automobile, paid Terry and took a subrogation. The question is whether the damages sued for were occasioned by the fault of the driver of defendant’s truck, or by Duffourc, the owner and driver of the Dodge Sedan. The fact that plaintiff is the subrogee of Terry, a third person, can not alter the situation because defendant can only be held for ’damages due to his fault, no matter who suffered the damage. Obligations arise from contracts and quasi contracts and from offenses and quasi offenses. The driver of defendant’s truck was guilty of negligence. He violated the traffic ordinance in at least one important particular. He parked his truck on the [141] left side of the street with the left side of his truck nearest the curb. Ord. 7490 C. C. S., Art. 3, Par. 3. He may have violated other sections of the ordinance by attempting to turn around and by failing to extend his arm in a horizontal position as a warning of his intention to drive out into a stream of traffic. See Art. 1, Par. 6, and Art. 1, Par. 2, of the Ordinance. However, the evidence conflicts in this regard. Suffice it to say that defendant was negligent. In the view we have of the case it is immaterial whether in one or more particulars. We have next to inquire whether defendant’s negligence was the cause of the accident, for it is only in that event that defendant can be liable. Belocq vs. Hotel DeSoto Co., No. 8569 Orl. App.; Mitchel Bros., Inc., vs. Chas. Mallynn, 3 La. App. 69; Huddy on Automobiles,, 6th Edition, p. 468. Duffourc’s car, the Dodge Sedan, according to the testimony of its driver, was coming down Chartres street at ten miles per hour and when within twenty or twenty-five feet of the defendant’s truck, the truck began to back out. The speed was exceptionally slow we are told because the street was covered with “stick tar”. If this testimony evidence is believable then Duffourc was alone to blame for the trouble because he had ample opportunity to stop his car and it was unnecessary to drive to the left and into Terry’s building. Huddy on Automobiles, 6th Edition, Sec. 411, p. 480. A mechanic testifying in plaintiff’s behalf said a car going ten miles per hour could be stopped in less than ten feet. But we can not believe this evidence, and we find Duffourc exclusively responsible for reasons yet more evident. He was driving at a reckless pace and his car was not under control. Some witnesses estimate his speed at 20 and others at 30 miles per hour. Such estimates are only guesses at best. The physical -facts in relation to the career of the Dodge car after discovering the truck was in its path and after turning to the left to avoid a collision with the truck are more convincing and are eloquent of great speed. An automobile, which, like the Dodge in this case, runs over an eleven-inch curb, across an eight-foot sidewalk and over another curbing ten inches high protecting a flower bed, and into Terry’s building, knocking off the weatherboarding and a sliding door, and bowls over a 12xl2-inch post before coming to rest, notwithstanding the effort of the driver to stop it, may fairly be charged with excessive speed and said to be out of control. In Giardina vs. Massaro et al., 9648 Orl. App., a case strangely similar to the present one, we said: “Where a Ford automobile collided with another Ford automobile at a street crossing and after the impact jumped the curbing, proceeded along the sidewalk, knocked down a door of a grocery store, injured a pedestrian and was finally brought to a stop by steps on the sidewalk, the circumstances are so persuasive of excessive speed as to require strong proof to establish the contrary.” Under the circumstances and for the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s demand.