
    Edgar A.Dumont vs J.D.O'Keefe,Receiver and C Appellant.
    No.8649
    Charles F.Claiborne,Judge.
    June 25th 1923.
   One of defendants' cars ran into - the ,plaintlff.’s,,;"'1 ■ ■ . • ' ' "/v"' automobile and demolished it .Hence this suit for. its1 value;1-?1*:

The facts are that the defendants run a 'double- - •' ■■ ■ i track line.of cars up Magazine Street and through Audubon Parfcj the traokalthrough the Park are on a neutral ground oti .the. Kl-Ver.\'y / ' ■, ;: ■ side of a paved roadwway wide enough to aooommodate ve&rilesj? f. . at the upper end of the Park,at a distance of’ about 10p fiat befors reaching Walnut Street,'there is no-more neutral,.ground - ■ j. • and Magazine Street narrows to such an 'extent that the entire street is occupied by the two tracks,leaving’no. room for vehicles on either side; just before reaching that harrow point-the-two tracks leave the neutral ground,and oross the above roadway.-.,. . v ,.' iv''fi'.vVíi diagonally on the right over a distance of about 85 feet WJ.th 1'-1.:1'1??’ a well defined curve exoeeding 45 decrees,and one track proceeds1’; up the right side of Magazine Street within a few .feet- of the;*!, side walk,making a sort of triangle or pocket between the osúr’"1 tracks and the side walk on the lake side .For that reason,a 1 / vehicle running up the roadway within the Park',must of necessity •• drive upor and across the right hand side track when it 1 savin, the roadway to go up Magazine Street. •

The plaintiff alleges that on the morning of January 23rd 1923 at about ten O'Olo'ek,his. wife was driving Éi’s'auto^ivsfl mobile up Magazine Street through Audubon'Park; that’ she1’enter*®?!..' - '■ • ” •' -íí'iw a few feet upon the track of the Magazine car at the point1 :...■•>■<;'• where the track makes a triangle wits the sidewalk * when su®* V!;* denly,and without warning, said automobile'was .struck‘frqk-;b#ft^¿¿'í by a street car coming up Magazine and operated*.by't'hé’d0^eáí&!§||s« company;that it- was struck wuth such- force;ás tó;.&uri;tt-'agaik^ a tres on the sidewalk,and totally wrecked it.He claims the value of the car $1600 .

The answer alleges that on the morning above stated "an automobile driven by a lady was driven upon the tracks upon which respondent's 'Magazine cars are operated in Magzine Street at the upper end of Audubon Park,at a time when one 08 said oars was so close upon the automobile that the motorman could not possibly stop it in time to avoid a collision," and it oharges plaintiff with negligence and heedless disregard of warnings.

There was judgment for the plaintiff for $1575 ,and the defendants have appealed.

Our examination of the testimony pleads us to the conclusion that the plaintiff reached the point where the Magazine Street oar enters into Magzine Street just where it begins to be narrow to admit of an automobile on the side of the track and at the triangle above mentioned where the plaintiff had to cross at least the single rail next to the sidewalk in order to proceed up Magazine Streetjthat she entered upon that rail or track without stopping,or slowing up,or looking^ and that by omitting such precautions required equally by care and jurisprudence she was guilty of gross imprudence which, under ordinary circumstances,would have fixpd the consequences upon herself,and would have prevented -h-hn pi MwMff from recovering 19 A 304-47 A 268-43 A 1,933-49 A 1302-50 A 1087-51 A 262 299-52 A 245-2149-105 La 418-427-113 La 475-789-1107-124 La 37-43-125 La 777-778- No.7405 Ct.App.No.7888 Ct.App. No.8127 Ct.App No.8595 Ct.App.

Even under former jurisprudence,she could not have recovered, from the defendant,even if it hadbeen guilty of negli genee,inasmuch as the fault would have been mutual 2 H.D. 1054 C_- 39 A 796-42-[ A XXXX-XXXX ].

But under modem jurisprudence. the plaintiff is entitled to recover if,notwithstandiiig^negli~ genoe,the defendant,in the exercise of due oare,could and should have avoided the accident.This is the application of the doctrine of the last clear chanoe as recognized by this Court in the cases Nos.7405-7988-8127-7824-7993 and by the Supreme Court in 39 A 799-46 A 1554-105 La 229-52 A 417-116 La 789- leading case Mc Clanahan vs RRD.111 La 781-125 La 777-778-898-124 La 165 171 -143 La 60.

We are of the opinion that the defendants could and should have avoided the accident .We' are satisfied that the defendants car entered the' Park after the plaintiff,and that it followed the plaintiffs' automobile until the moment of the to collision.There was absolutely nothlngAintereept the view at any time between the car and the automobile. Not only there was a motomeer on the front platform of the car. but there was also a pitman.They say that when they first saw the automobile it was thirty-five feet ahead of them.If they did not see it sooner it was their fault.They must be held to a knowledge of the fact that when they approached the curve,they had to cross the roadway in order to reach Magazine Street,and that all vehicles driving up that roadway also had to cross the same street,and that it was a danger point.It was so well known. to the employees of the defendants,that Edward Boehm,pitman for the defendants,testifies: " I had to make a stop anyhow,coming If •to that curve,and .you know they dont allow you to go on that curve without stopping".The distance bwtween the beginning of the curve and the point of collision is 87 feet of clear view over a paved street.There was no «Kea?eiee excuse for the employ-/T*ees 'of the defendants not to have see the automobile on the other r~ end of the curve,and they knew that the plaintiff had to cross the track at that p‘oint,for that was on herjijine of travel, and she liad no other road upon which to go.Under those peculiar circumstancés ,of known danger there was an obligation on the part of the defendants^employees to exercise more than ordinary oare aione would have avoided the accident,

"It is the duty of the' ohauffeur of an automobile to look out for pedestrians at street crossings and to take all needful precautions’to ayoid collisions with them".130 La 648.

f ^The motorman had reasons to believe that persons might be attempting to oross "at the foot crossings of that narrow street and he should have been certain that the crossing ■. was dear before taking his car over it. 125 La 898.

"While plaintiff was negligent in attempting to cross the defendant’s track at a sharp curve without stopping to' look and listen at the proper time and place,the Company .will b.e' held liable when the evidence shows that the engineer ..saw the .danger in time to a,vold the accident by sounding .the whistle or applying the brakes".116 La 789.

. "there was no proper care on the part of the employee ■ in oharge of defendants electric car.Such care and diligence must be exercised at dangerous places on a railway to avoid inf noting in jury,as the proper manning of a car requires" 51 A 146.

"the duty was by the ordinances of the municipality ánd rules of safety,imposed upon the defendant train to stop at the crossings.lt was not stopped".Judgeent for plaintiff 50 A 501.

Judgment affirmed.

June 25th 1925 .  