
    Robert TILLMAN v. CITY OF NEW ORLEANS and New Orleans Public Service, Inc.
    No. 9850.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Donald A. Hoffman, Robert K. Tracy, New Orleans, Barbara Treuting Casteix, for City of New Orleans.
    James Maher, III, New Orleans, for New Orleans Public Service, Inc.
    David Paul Bains, New Orleans, for plaintiff-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

Robert Tillman was injured when a New Orleans Public Service, Inc. streetcar, on which he was a passenger, struck a New Orleans Police Department police car at the intersection of St. Charles Avenue and Josephine Street. Tillman sued Public Service and the City of New Orleans for damages. Trial on the merits resulted in judgment against both defendants, in solido, in the amount of $3,407.04 plus interest and costs. Each defendant appeals, contending that the other was solely at fault.

Both the record and the trial court’s written reasons for judgment support the streetcar operator’s version of the facts of the accident which indicates that Lionel Stevens (the streetcar operator) saw the police car’s flashing light out of the corner of his eye immediately before the car turned left across the streetcar tracks. He immediately hit the bell and applied his brakes, but the streetcar was only about five feet from the intersection.

Accepting the operator’s version of the facts as controlling, we consider that the ultimate factual issue before us is whether the streetcar could have avoided the crash even if the operator’s vision had not been somewhat obstructed by standing passengers.

We conclude that the streetcar operator could not have been aware of the turning vehicle until it was too late to avoid the accident because, by the officers’ own admissions, the flashing light wasn’t used until just before the turn was commenced. The streetcar, travelling at 15 m. p. h., could not have been stopped in time, and, thus, the conclusion that the operator’s blocked vision was directly related to his failure to avoid the collision is not supported by the record and is, we conclude, manifestly in error.

Accordingly, that portion of the judgment which casts New Orleans Public Service, Inc. is reversed. That portion of the judgment which casts the City of New Orleans is correct and is affirmed. All parties to this appeal shall bear their own costs.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.  