
    MARCEL B. DELLANDE, versus JOSEPH D. PASCAL
    NO. 8288
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL,- JUDGE:
    June 19th, 1922.
    
      
    
   : V/IILIAM A. 3311, JUDGE..

Defendant herein appeals from the Judgment ren-dored against him in the sum of $771.33, an amount for which the Judge of the trial court found him liable to plaintiff, who has-claimed clamagos in the sum of $1,571.33. plaintiff and appellee herein has not answered the appeal to this Court, nor prayed in any way for the amendment of the Judgment as rendered in his favor. The trial was without Jury.

Plaintiff's petition alleges that on the 14th day of September, 1920, at about 2:25 A.II., while driving and operating his Pord automobile down Burgundy Street in this City, and while going- in the direction from Canal street, that at a short distance past the intersection of St. Ann Street his automobile collided with, and ran into a one-horse spring wagon standing some thirty or forty feet from the corner of St. Ann and Burgundy Streets, on the river side of Burgundy and heading down torn, and that as a result of said collision his automobile was damaged to the extent of $66.33, and that plaintiff himself sustained damage, including doctor's bill, for $5.00, to the total sum of $1,605.00, making a total amount claimed in the petition of $1,571.33.

It is charged in the Tetition that in violation of the city ordinances and of all other laws of the road, that defendant's wagon was unlawfully placed in the roadway so that traffic was obstructed, and that no lights were on the wagon to give proper notice to the public of its location, even though unlawfully parked on the street at that time; that petitioner's physical damages resulted in a severe laoerttion of the ear and ohin; that in the hope of avoiding permanent soars he was compelled to submit to a second operation, all of which resulted in great pain and suffering, and that notwithstanding the said operation, he will be permanently soarred and, disfigured.

We find from the evidence that defendant's wagon was undoubtedly located on the river side of Burgundy Street about thirty or more feet from the corner of St. Ann, the rear part of the wagon being towards St. Ann Street. On the wood side of Burgundy street, and almost directly opposite the wagon, there was a pile of sand and gravel being used at the time for the purpose of repairing Burgundy Street, and that this sand or gravel pile, together with tool box and cement bags,the latter situated on the wide-walk, were properly lighted by red lights.

There is some confusion about the locality of the sand pile, two of defendant's witnesses and one of plaintiff's witnesses saying that the sand pile was on the ri.-ht side of the street in front of the wagon. The preponderance of evidence, however, is that the sand pile was located as we have found it, that is, opposite the wagon in question.

It appears from the evidence that plaintiff had been out riding with some friends about mid-night, and after returning from the road to West End with three other men, all of whom had left him, he proceeded down Burgundy Street towards his home, and when reaching the corner of st. Ann Street he observed the sand pile and red lights to the left of his machine , and in his efforts to avoid the same, turned his oar to the right, with the result that he ran into the wagon, which he claims not to have 3een, and which he swears had no lights of any sort upon it.

The evidence is convincing that at this corner the street was well lighted by electric lights, but there is no evidence to show that at the moment that plaintiff's oar came down the street that there was sufficient light for him to see the wagon parked some distance from the comer. He states that vías while driving, one of the wheel3 of his machine ran on the oar traok and the other on the wood side, and that when he v;as next to the sand pile he oould not go any other way, and that he hit the wagon, whose right wheel was over the oar traok; that the sand pila attracted his attention, and in trying to avoid it, ho came into oollision with the wagon.

There were no "ye witnesses to tho accident except the plaintiff himselfi^ho swears that the wagon at the time of tho collision was in a slanting position, that the shafts were on the^sfide-walk and the hack wheel was on the track.

The evidence is conflicting as to whether there ras a light of any sort on tho wagon at the time of the collision. The first witness called for the defendant swears that he saw a light on the wagon at about 10:30 o'clock, while passing that corner, but this witness' testimony was entirely discredited by the Judge a quo, who said that he did not believe a word stated by him.

Another witness on behalf of defendant, when asked about the light on the waron said that he had not observed this fact. Throe of the witnesses lor j. lain!iff, that is, himself and two others, give positive testimony to the effect that there was no li. ht ■. iatsoever on tho wagon.

Tho defense offered to this suit is that the plaintiff was guilty of contributory negligence because he ivas driving « motor vehicle at c rapid speed, and that it vas his duty to be on the constant outlook for obstructions in the hijhvty, and that defendant's waron was at a com. lets stand-still, and had a red light on the rear thereof. It is'further contended that the corner net.r which the accident occurred was well lighted by olocrie ligr.ts , and that if plaintiff had been vigilant, and had used proper care and caution, he could, or should have men defendant's wagon. It is also charged that plaintiff ins intoxicated and incompetent lo o.rive sn automobile, and that jt. Ann street being at the time torn up and under repair, do fondant '.as justified, and in foot compelled to park Ills wagon on Burgundy street, for the reason that re could not get ingress or egress to Lis stable, which waa situated on St. Ann between Burgundy'and Dauphins. Defendant finally pleads that there were piles of sand, gravel and rook adjacent to defendant's wagon, which piles were provided with red lights to warn passersby of obstructions in the street.

Observing these several defenses-, we are inclined, from the evidence before us, to agree with the judge of the trial court, that they have not been supported by the evidence adduced at this trial. There is some- evidence in the record to the effect that plaintiff was intoxicated, but all those who are especially disinterested, particularly the two policemen who came to the scene of the aooident, testify to the contrary.

There is nothing in the evidence to show that the plaintiff in any way contributed to the adoident , or that he could, or should have seen the obstructing wagon which was entirely devoid of lights or danger signals, and defendant's own contention that the street was under- repair, a thing well known to him and not at all, so far as the evidenoe shows, known to the plaintiff, imposed on him the particular duty of seeing that the roadway was not, through any act of his, additionally obstructed, especially by his wagon placed just at the point where he admits in his own defense, other obstructions were given to that part of the road by those charged with its -repair.

The attempt to impeach the good character of . the plaintiff herein has, in our opinion, wholly failed, and has not favorably impressed this Court as to the strength, if any, which defendant has in his side of the case. .The first and important'point of law in the case, and whioh, no doubt, largely influenced the judgment of the trial court, is the traffic o®&' dinano.e relative to the lights which vehicles should have afteif the hours of daylight traffic. Art .IT.,Sec. 4 of-the ordinance' oovering the street traffic in the City of Hew Orleans .particularly ■the last clause thereof, reads as follows:

"All vehicles not motor propelled are required between one half hour after sunset and'one half hour before sun rise, to have on the left side a light which will show white 300 feet to' the front, and red 300 feet to the rear. In addition to'1,this, all spring vehicles must carry a reár end light."

■ ' In the case before us these requirements have been wholly unobserved, and .the liability of defendant cannot be avoided by pleading negligence on the part of plaintiff, such as has been urged by him in this case.

We find that though the street where the accident happened was under repair and was somewhat obstructed on the wood-side by the sand and gravel pile, the evidence is convincing that the river side of the thoroughfare was .well- open to traffic but for the unlawful and negligent aots of the defendant in obstructing same, and but for his added and gross negligence in failing to place upon the unlawful obstruction the lights and danger signals required by the traffic ordinance hereinabove quoted, ¡there is no evidence before us that plaintiff vías driving at a high rate of speed as alleged, but not proven, by defendant, or that plaintiff was in any other manner violating any traffic laws. We are convinced that the proximate cause of the accident wa3 the wagon obstruction to the right of the road and that side of the road where the plaintiff had a right to be, and that defendant's failure to even light the obstruction as' the law requires, deprived plaintiff even of his last clear chance to avoid the ao-cident, had he also been in any manner negligent.

It may be properly presumed that had. the wagon contained a red light in the rear that plaintiff would have seen it as he did the other red light on the sand-pile just a few feet directly oppssite the wagon, and would thus.have been notified of the double obstruction existing on either side' of the road.

We have carefully examined the several authorities of our Supreme Court as cited in defendant's brief and supplemental brief, bui find them not applicable to the facts before us, for the particular reason that defendant has violated the law in two respects most conclusively against him that of using the public street under any conditions as an over-night parking place, and in failing to take even the most ordinary care to notify the public by lighting the obstruction unlawfully placed in the highway,

l’he trial judge has undoubtedly given most careful consideration to the extent or evidence of physical damage sustained by the plaintiff, and the amount allowed by him, to wit, ’§700 does not seem to us as excessive, fko amount of other damages allowed, as necessary repairs to the automobile and the small bill of plaintiff's doctor, does not soem to be in dispute.

s ',ve find no error in tho judgment appealed from, and same is therefore affirmed.

JTOGMBHE AEFIRIuKD .

June 19th, 19B2.  