
    No. 11,328
    Orleans
    ITEM CO., LTD. v. CHECKER CAB CO.
    (October 29, 1928. Opinion and Decree.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff and appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant and appellant.
   JANVIER, Judge ad hoc.

The delivery truck of plaintiff company and the wrecker truck of defendant company met in collision at the corner of Perdido and South Liberty Streets in the late afternoon of August 20, 1927.

The Item truck was proceeding out Per-dido Street towards the lake and the wrecker truck was being driven along South Liberty Street in an uptown direction.

After the accident both trucks were found about twenty-five (25) or thirty (30) feet in Perdido Street beyond the intersection of South Liberty Street, the Item truck lying on its left side. Each driver claims that before entering the intersection he slowed down to a very moderate speed and looked carefully for vehicles on the cross streets. The story told by the driver of the wrecker truck seems to us so highly improbable that we cannot accept it as the correct version of the - affair. He says that:

“* * * at the time I came to the corner and came to practically a stop and looked and did no't see anything, and blew my horn and shifted into second gear, as I pulled near the corner I saw this Item car making thirty-five or forty miles, I saw I could not beat the truck across the corner so I came to a dead stop, which was a little into Perdido Street, so the Item truck kept on coming and swung to the left and there was another machine on the opposite side, and the rear of the Item truck hangs into the front of my machine and drags it twenty-five or thirty feet out of Perdido Street and threw his machine into the right curb and then turns it over -and hits the other machine.”

The Item driver states that the wrecker truck approached at a very rapid rate and that its driver, in an effort to avoid the accident, turned to the right in Perdido Street, and that the wrecker truck was going so fast that it overtook the Item truck and its right front fender and front bumper hit the Item truck in the right rear, and turned it over on its left side. This seems to be borne out by the testimony and is clearly shown by the physical condition of the Item truck after the accident.

At any rate the trial judge saw and heard the witnesses and we are of the opinion that his conclusion is fully sustained by the record. In cases of this kind, where only facts are involved, we are not inclined to reverse the findings of the trial judge, unless they are plainly erroneous.

The judgment is therefore affirmed, all costs to be paid by appellant.  