
    (77 South. 512)
    No. 22543.
    MULQUEENY v. NEW ORLEANS RY. & ELECTRIC LIGHT CO.
    (Jan. 3, 1918.)
    
      (Syllabus by the Court.)
    
    Street Railroads <&wkey;114(7) — Personal-Injuries — Sueeicienoy oe Evidence.
    Only a question of fact is involved in this ease. .- - ; •
    O’Niell, J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.
    Action by Patrick W. Mulqueeny against the New Orleans Railway & Electric Light Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Armand Romain, of New Orlearis, for -appellant. Dart, Kernan & Dart, of New Orleans, for appellee.
   SOMMERVILLE, J.

Plaintiff, aged 69, alleges that while returning from work, about 11 o’clock at night, he was about' to board' a Villere Street car, and that he was knocked down and injured by a Peters Avenue car, both ears being operated by defendant company in New Orleans, all through fault and neglect on the part of defendant. He asks for $10,000 damages.

There was judgment for defendant, and plaintiff has appealed.

Plaintiff is the sole witness who testified bn his behalf. Five witnesses, who were in the employ of defendant at the time of the accident, testified on behalf of defendant. Three of these witnesses were not employed by defendant at the time of the trial. - . .

As the accident happened in Canal street near the river, at a late hour of the night, it is not surprising that there were no .other witnesses.

Plaintiff testified very positively that he was in the act of boarding a Villere-Street car which had come iron} the direction of the river, and that it was at a standstill at the time, when he was run into and injured by a Peters Avenue car on the adjoining track, which was going towards the river.

Defendants’ witnesses all testified that plaintiff was not attempting to board the Villere Street car at the time; that that car was standing on a switch some 25 feet distant, waiting for plaintiff to get out of its way; that plaintiff was actually backing away from the track on which that car was to run; and that he backed into the fender of the Peters Avenue car, which was moving slowly on the adjoining and parallel track behind him.

The motorman of the Peters Avenue car says that he saw plaintiff, who was facing the Villere Street car; that he sounded his gong, but that plaintiff suddenly backed towards his car; and that there was no time in which to stop his car to avoid the accident.

The testimony is most conflicting, with the preponderance in favor of defendant.

Judgment affirmed.

O’NIELL, J., dissents from the conclusion of fact.  