Kiersky v. Peter P. Rowan Co.

BY: WILLIAM A. BELL, JUDGE: Hlaintlfí sues, the defendant corporation for ' '\Sita*§S^'Suff,ered to his auvomóbile by ¿ collision with-the def-'- ’ ®S|i^y¿.^t'o'%aolC4-: The-"' extent of'this damage was alleged and ¿gMÉK&»/!to.'ihave. been-; Two - Hundred and Dour Dollars and Twenty-Dive . 4HÜÍ &B04V2S)'.- .Additional"damages were olaime.d.in the sum of l)>3ÍÍ8K¿-. Hihn&red'-'-and'" Ten Dollars C$210i'OO) for resulting loss- of - '?'-Átí|í''«f-.pld'iht’íte,B' cñ'». liirii^'’ thirty-one days. The oáee was tried '#itbb,tali'; 3ttry (8nd. the ju,dge of bhe-trlal oourt -rendered judgment , In favor of plaintiff, in the sum’ of '$204.25. There were no reasons .g'íven..,fo» judgment,- - but from the amount allowed it is to ■ -be presumed that only, actual' damages to plaintiff's oar and not /those ola-iined .for loss of the use'of the oar, were allowed. ■ Upon appeal, plaintiff, as appellee, .prays for an ''amendment of the-judgment so as to allow the total amount -claimed,' to -wit, $514.25. ■Hlain'tiff * s petition- alleges that on. -September 25,-' 1920, about 11/si? clock A*H., at the' corner of Spruoe. aud Burr, ,-dette í'tréaís ua .'this'-City, a Peerless Sedan automobile owned by 'him-waa-'.'lá'jur&dfbjr O# auto truck-of'the defendant Corporation; ítSáf.thi» '**■ ihe time that petitioner's -auto had come'to.a stop,,to allow- a passenger'.to -alight, 'and was at a stand- ■ still 'and 'was' on-..the' lake side of Spruoe St. facing down, where it'.had a righ¥*t^^e'í'--bpt,thá,t ,-th'e: truqk -of defendant Was'backed ¡hsé',ltp-.driver 'o.ut -ó.f'-'Spruorf Bt. ■ into.-''thé 'riéa'r .right' side of plain-/ti'ff-'s, £uto, ,colliding; with and injuring same* • The usual allegations are-'made.;of-:íiégÍÍgbnos on-thb part of the-defendant qorporatj.o¿. ahd: it's'-employee,' or-.driver of -the auto'-'truck.- There is a .supplemental p.btitiob/eontai'ning'' allegations "which need no'j: be noted here. .The Mefendant answers by admitting the 'date¿Hd-the place:of-,thb;.íftsd4dént;,. and- particularly-the. allegations 'donteinad^iR'’thevSS'0'9,iid'paragraph of plaintiff's petition,'- which . .. ''oó'riti¿ius'’tbS 'fd,dlK' f%t:-'abb've'-narrated. At the same'time, however,. [487] defendant denies particularly that plaintiff's automobile had the right to be on the lake side of Spruce St. facing downtown, but that on 'the contrary, the position of said automobile was violative of the .ordinance of the City of Sew OrJ.eans-’goveming street traffic, and that the act of the plaintiff constituted negligence on his part, and on that,-of his employee, or'chauffeur, and that the collision and accident were due solely and entirely to the fault and negligence of plaintiff and hiB employee, and to the fao.t that plaintiff stopped his automobile at the place and in the manner mentioned, all in violation of the ordinance which prohibits vehicles from- stopping with their left sides to the curb exoept on a one v;ay traffic street. .Defendant particularly alleges that Spruce St. on which the accident happened is not a one way traffic sti;eot. Defendant further alleges that while its auto truck was in the act. of backing out of Burdette St. into Spruce St. after being stuck in a hole in Eurdette St. that the said aut'o truck was half way around the turn, backing towards down town on Spruce St, and towards the lake-side of said street, plaintiff's automobile oame down Spruce St. and passed the truck to the right thereof and came to-, a stop, with its left side to the curb lake-side of Spruce St. facing downtown; that plaintiff in so passing the defendant's truck to the right violated the ordinance as pleaded and was thus guilty of negligence; that defendant's driver had the right to assume that plaintiff would obey the law, not passing him to the right nor stopping his oar, in violation of the said ordinance, on the wrong side of the street; that consequently, defendant's driver continuad to baok his truck slowly, in order to put it in position to pro- . ceed up Spruce St., as he had a right to do; that defendant's driver was without fault, and at all times acting within the law, and had his truck under full control aiid government. She pertinent parts of the ordinance offered in evidence and pleaded by defendant in support of the allegations of negligence against the plaintiff, read as follows: [488] (a) "lío vehicle shall stop with its left side to the curb, except on a one-way traffic street and Then only for the '.purpose of loading or unloading'.' (b) So vehicle shall stop in any public street except close to the right hand ourb; except as provided in parking rules, or in an emergency, or to allow another vehicle or pedestrian to cross its path, nor shall any vehicle stop in such manner as to impede the progress of other vehioles or of pedestrians." She evidenoe in this case shows that on the morning of the accident, the defendant's auto truok was being used, with its consent for the accommodation of a friend, a past customer of the corporation, who was moving some of his household effects to his residence on Burdette St. between Spruce and Cohn St. in this City, end that defendant's auto truck driver in going' to this residence cane down Spruce St. from Carrollton and. turned into Burdette St. towards the river, and at a short distance from the upper corner of Burdette and Spruce Sts. the auto truok was stalled in Burdette St. which was unpaved, and in a muddy condition. The truok-driver, in order to get out of the hole in which the machine was stalled, backed from the upper side of Burdette St. from a point about 50 ft. from the corner of Burdette and Spruce Sts. end at an angle of about 45 degrees, backed into, down and towards the lake-side of Spruce St. and while in continuous motion, but going at a very slow rate of speed, the rear right end of the auto truok collided with the rear right end of plaintiff's automobile, at the moment that plaintiff's oar had come to a stop for the purpose of discharging a young lady passenger, who was riding with plaintiff at the time. The evidence is conclusive that before the collision occurred ■&&& plaintiff was coming with -his. car from out of Spruce St. on the upper sidS of Burdette St., and while going in that direction of downtovni, thkt plaintiff crossed to the right of defendant's auto truok while the latter was backing into Spruce St. as above described. [489] Three witnesses for defendant, that is, the driver of the truck, a former employee of the defendant company, and a friend who was using the auto truck, all agree that plaintiff's car came from the upper side of Burdette and Spruce Sts. and crossed to the right -of the auto truck about three feet away from the truck and between it and the lower-leke corner of Spruce and Burdette. We find as a fact that the truck driver in backing dorm into Spruce St. failed to look to -the rear, as- he might have done, but that every care and precaution was taken by . him, in sounding his horn several times just before getting into Spruoe Bt. The auto truok was equipped with a driver's oab having three windows, one to the front and two on either side of the driver. One of the witnesses, 3 colored man, a former employee of the defendant company,- was standing in the truck in the forward and left part thereof,' immediately behind the driver, but not in view of him because of the rear part of the dab being olosed."This witness at the trial drew a pencil sketch of t.he locality of the accident, and the position of bhe oars at the time of the accident. The sketch was offered in evidence by defen- • d ant and while not containing any designated-measurements, we find it most helpful and corroborative of defendant's witnesses,, whom we believe have correctly and truthfully detailed the causes and circumstances of the accident. That plaintiff was' at fault in violating the City Traffic ordinances is beyond peradventure. -His oar should not have been at the place nor in the position jwe find .it at the moment of collision. While this fact, is admitted in argument and brief, it is contended that the proximate cause of th^1-.accident was the failure- of the truck-driver to look to the rear, and not forward while in the act of backing.- The evidence, however, shows that had he done so, he could not have seen plaintiff's car which had slipped' in between the truck and the curb at the .moment" - of contact. [490] The doctrine of last clear chance is not applicable to the physical facts plainly established by a preponderance of evidence. Counsel for plaintiff particularly relies upon the decision of this court in Vaughn v. If.O. Ry. & Light Co., 10 Orl-. Appl. 116. In the cited case, it is dear that the plaintiff was himself negligent in violating the city ordinance-in question, that defendant failed 'to avoid the accident when both carefulness and time veie available. In the instant case, we find that all reasonable care -was-exerted by the truck-driver, but that the collision and plaintiff's violation of the ordinances were..simultaneous, allowing no opportunity to defendant's employe?to avoid the accident. Admi"tir;,', arguendo, that the truck-driver ’should' have looked to the rear while backing in that dfreotion (though we find that doin' so would not have-enabled him to see plaintiff's '"tri we are -f the opinion that the- law of this case is. found in "d r.t vo have .aid in Adams v. SAllaglier, 11 Orl.-Appl, 300: "ííhon the evidence shows that plaintiffs negligence was'the proximate cause of his injury,.he cannot recover agt-jnst the defendant, although defendant's Eur/auts were guilty of prior negligence." See also Myers v. Perry, 1 La. Ann., 372; Woods v. Jones, et als., 04 La. Ann. 1086; Clements v. La. Electric Light Co., 44 La. Ann. 692; Borell v. Cumberland Telegraph & Telephone Co., 103 La., 680; Legendre v. Consumers Seltzer & Mineral Water Mfg. Co,, 147 La., 122 After oareful consideration of the evidence in this C'.fe and of the authorities above olted. we are of the. opinion \!-at the judgment of the trial oourt-is erroneous,' and that plaintiff is in' no manner entitled to recover the damages It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby'is reversed, and thf t there now be judgment in favor of defendant, dismissing pialntif :'s petition at plaintiff's cost in both courts. JULSMEHT REVERSED. Nov. 27, 1922.