
    MISS LOTTIE GRACE DAUDELIN, versus FRANK D. COSTLEY
    No. 8740
    COURT OF APPEAL, PARISH OF ORLEANS
    "ÍIRRIAM A. BEIR, JUDGE;
    January 2, 1923.
    
      
    
   BY: WIllIAAI A. B3BI, JUBSE:

Shis Is a suit By direct action for damages to plaintiff's automobile, and By reeonventional action, for damages to defendant's automobile, Both, of which were damaged By collision in AuduBon Part in the City of Hew Orleans.

EaoB of the litigants oharges the other with gross negligence, and each claims the other to have Been additionally liable under the doctrine of last clear chance..

The material allegations of the pleadings herein filed need not Be noted to any extent, the suit'Being predicated largely upon issues of fact, to Be determined from the testimony adduced at the trial in the lower court.

Defendant, and plaintiff in reoonvention, has answered the main suit Bjr pleading an exception of no cause of action, and answering the merits -By pleading particularly the violation on the part of the plaintiff of the general laws of the road, and the City ordinances of the City of Hew Orleans. The ordinances pleaded were made part of defendant’s answer, and offered in evidence at the trial of the cause,

•There was judgment in favor of plaintiff in the Pirst City Court of Hew Orleans, for the sum of $68.64, the defendant's claim in reconvention, for the sum of $189.40 Being dismissed. Prom this Judgment defendant, and plaintiff in recon-vention, has appealed. The only two eye-witnesses to the .accident were plaintiff and the son of defendant. The respective amounts claimed By the litigants constitute actual damages to each ¡OÍ thé automobiles, and the Bills for repairs of eaoh offered An evicttnee are not disputed.

We find that the accident occurred on January IS, 1988, at about four o'clock P.M., in AuduBon Park, atriwr near what is known-as the exit leading from the Park to Magazine St. Plaintiff was driving her car through the upper side of AuduBon Park from- St, Charles Ave. and around the curve in the Paris: towards the Magazine St. exit. This roadway upon which i^flaintiff was travelling is a public thoroughfare running through the Pari;, and is used, or intended, only for vehicle traffic. J?or more than a city block’s length, this roadway runs from the upper side of Audubon Park to a point .known as the 'Pea House in said Park, and to this extent the road is parallel to Magazine St. <le find that while plaintiff was driving her i'ord car down the Park roadway parallel to Magazine St., and within a short distance of the exit to Magazine St., she noticed the. defendant's car coming, or about to come, out of the inner roadway loop which runs in front of the Audubon Pea House, end takes a returning direction to the Magazine St. exit.

Shere were two plans, or sketches, and two photographs, offered in evidence. One of the sketches was offered by plaintiff and the other, together with the- two photographs, was offered by .defendant. There is considerable variance between the sketch of plaintiff and that of defendant, and we find, upon examination of the testimony, that the sketch offered by defendant is a more correct plan of the locus in q.uo. The photographs, marked "Defendant I. and II." respectively, as well as th§ sketches, show that part of the park at the intersection of the exit and that of the driveway, where there is an eleotrio light pole. The pole is midway between the extreme sides of the exit, but does not in any maimer stand in, or obstruct, the driveway in the Park, ffrom the point of the eleotrio light pole to the exit point of the loop, we find the driveway to be a two-way thoroughfare; and that the balance of the driveway, as well as the entire loop, running from the lea Room back again into the driveway, is a one-way thoroughfare, running from the direction of Magazine St. towards St. Charles and back again in loop towards Magazine St.

It is contended by the plaintiff that the stretch of roadway upon which she was driving, from the electric light pole to the exit point of the loop, -is a one-way drive, and that this distanoe is about 30 ft. On the other hand, defendant contends that this same distanoe is 110 ft., and that the driveway here is not a one-way, but a two-way traffic thoroughfare.

Vie find that the defendant's contention is the right one, and we further find that the width of this two-way thoroughfare from the point of.the aoeideht to the Magazine St, side of the thoroughfare, is. some SO odd feet. The width just mentioned gives-to. vehicles.-going towards the Tea House into the loop, or out of the loop'into the thoroughfare in the direction of Magazine St. ample room to pass each other, and that vehicles going towards the Tea Room ar into the loop should, under the general law of .the ro'ad, as well as the traffic ordinances of the City of Hew Orleans,- keep to the right of said road, that is, towards the side nearest Magazine St,t and that those vehicles should coming out'of .the loop, and -for the space of 110 fU/also keep to the right, going in the -direction parallel to Magazine St., and until turning to the left for purposes of exit, from the fark.

The sketches Of both plaintiff and defendant show that the point of the accident was in the grass directly off of the loop, and at the point of intersection-of the main thoroughfare with the exit point of the loop.- The. evidence 'establishes conclusively that the primary cause'of the accident was the plaintiff' s failure to keep.well id the right while, going, as she testifies she intended, to'go, tovterds the Tea.Souse,- She .testifies, however, that before reaching the electric light pole, in gestión, she saw the defendant's oar-well to the left of the exit from the loop, apd that noticing the approach-'of defendant's oar, she turned well .to her left., and checked the speed of her oar until she found that defendant's oar Vías dangerously near her, at which moment, she aeeelerated the speed of her oar, at the same time turning her 'ear Still further to the left. We find, that she was undoubtedly confused, as .she herself testifies, and that her failure- to pursue .her' course well to the right was the sole cause of the accident.

Vie further 'find that the driver of the defendant's car at all times observed the rules of the road and the Sity ordinance a, by keeping to his right, although by so .doing, the inevitable, accident .occurred. We .also find that' the do otrine of last dear chenoe cen only he applied against plaintiff for the reason that she admits having increased her speed, and also having continued to pursue her unlawful direction to the left, when she could and should have turned to the right at the last moment before the cars came into collision.

Had plaintiff at all times kept to the right of the road, and had she particularly done so even after believing that defendant's oar was dangerously near her, the accident would not have occurred, failing e^cthis observance of the rule of the road, as well as the ordinances, she, and not defendant, must be found at fault. The driver of neither car was exceeding the speed limit allowed under the law, and hencg the aocident can only be attributed to the fact that plaintiff failed to keep to the right while in the 110 ft. of two-traffic roadway upon which she was travelling.

The City ordinance which is rightly invoked by defendant provides in Section I. thereof, that the provisions and regulations of the ordinance shall govern the manner of use on the public streets and thoroughfares of the City of Hew Orleans, of automobiles, etc. There was some attempt .in the trial of the case to prove that the driveways in Audubon Park and the traffic thereon, were governed by rules and regulations of the. Audubon Park Commission, but in this respect the testimony offered was, in our opinion, properly rejected. The witness introduced for this purpose by plaintiff, showed clearly that he had no official knowledge of the rules of the Commission.

There being no evidence before the Court of the power of the Audubon Park Commission ro make any rules or ordinances different from those enacted by the City Commission Council, and the ordinances of the Council not differentiating in any way the traffic rules applicable to the public streets as distinguished from driveways in public parks, we find it proper to hold that the thoroughfares or public driveways in the public parks in the City of Hew Orleans, are to be governed by the ordinances relative to traffic throughout the City.

Prom our appreciation of.the facts of this case, and from their application to the. City ordinances which we consider the law of thé oase-, we -are of the opinion: that the' Judgment of- the trial chart Is erroneous, and that there, -fthauli he judgment, for defendant in the sum prayed for in reconvention..

It is therefore ordered, adjudged grid dsóreed, that the judgment herein appealed from in favor of plaintiff Shjtt. .against defendant in the sum of .$.68.64, and rejecting the demand of plaintiff in reconvéntion, should he, and the; same.-is: hereby •reversed, and it is now ordered,- adjudged and decreed that there he judgment in favor of Frank D, Costley and .against .'lottie. grace Daudelln, in the sum of $12?.40. With legal interest thereon from date of judgment until paid, and for all aostg- in hpth courts.

JODSMSHf KBYBBSSB.

January 2, 1923.  