
    (97 South. 601)
    No. 24725.
    GANNON v. NEW ORLEANS RY. & LIGHT CO. et al.
    (May 29, 1922.
    On Rehearing, Oct. 2, 1923.)
    
      (Syllabus by Editorial StaffJ
    1. Street railroads &wkey;>l 14(10) — Evidence held to show operation at excessive speed.
    Evidence in action for damages sustained in collision between street car and automobile held to show that street car was being operated at excessive speed showing negligence, but not showing reckless disregard for human life, and that failure to stop car so as to avoid the accident was due to sucTl excessive speed.
    2. Street railroads <&wkey;99(IO) — Automobile driver held negligent in attempting to cross track when he could have seen car.
    Where automobile driver turning to cross street car tracks stopped to permit car to pass and by making an ordinary effort to ascertain whether car was approaching from opposite direction could have seen car by which he was struck, he was at fault in attempting to cross immediately after the first car passed.
    3.Street railroads <&wkey;l02(2) — Recovery for negligence held barred by negligence of automobile driver.
    Where plaintiff’s chauffeur was at fault in attempting to cross street car tracks, his supervening negligence precluded recovery by plaintiff for the street car company’s negligence in operating ear at excessive speed.
    Rogers and Land, JJ., dissenting on rehearing.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Action by John J. Gannon against the New Orleans Railway & Light Company and another. From a judgment for plaintiff, defendants appeal.
    Judgment set aside, and plaintiff’s demand rejected on rehearing.
    Dart, Kernan & Dart, of New Orleans, for appellants.
    Merrick & Schwarz and W. J. Guste, all of New Orleans, for appellee.
    By Division B, composed of O’NIELL, LAND, and BAKER, JJ.
   LAND, J.

This is an action sounding in damages. On the afternoon of October 31, 1918, plaintiff’s car, occupied by himself and his chauffeur, was wrécked at the corner of the lower side of Canal street and North Rendon street in the city of New Orleans, by collision with a Villere street car, owned and operated by defendant railway company. At the time of the accident, plaintiff was seated on the rear seat of the automobile, which was attempting to pass over the public crossing from the lower to the upper side of Canal street.

There are double tracks over this crossing; the outbound track being next to the lower side of Canal street, and the inbound track next to the upper side of Canal street. This collision took place on the outbound track, while plaintiff’s automobile was astride this track.

The Villere car had come from the barn in block 365 on the lower side of Canal street, at the corner of White and Dnpre streets, and was on its way out towards the Cemeteries, to its regular route at Villere street. It was a small car, -with a hand brake, and had no passengers aboard. The accident occurred 4 blocks from the car barn, at the North Rendon street crossing. This block lies between North Lopez street and North Rendon street, and the testimony in this case relates to incidents happening in this block immediately before the accident. There were two automobiles in Canal street on its lower side in this block, when the Villere car entered the block on the outbound track. The Villere ear and these automobiles were all going in the same direction out towards the Cemeteries.

One of these automobiles was a Cole car, occupied by J. B. Ferchaud, Jr., and a Mr. Brown, who was driving the car. The other automobile was a Liberty Six sedan, occupied by John J. Gannon, the plaintiff, and his chauffeur. When this Cole car was about the middle of the block, J. B. Ferchaud, Jr., observed the Villere car, as it entered the block. The Cole car was traveling at the rate of from 12 to 15 miles per hour. The Gannon car had already passed the Cole car, and was on its way to the North Rendon street crossing. The testimony of J. B. Ferchaud, Jr., is to the effect that the accident occurred before the Cole car reached the scene of the collision. In other words, the Villere car had traversed the whole distance of the block, and had collided with the Gannon car, before the Cole car, which was in the middle of the block when the Villere car entered it, had reached the scene of the accident. The Villere car was traveling, therefore, at a rate of speed twice that of the Cole car, i. e., from 24 to 30 miles per hour. The testimony of J. B. Ferchaud, Jr., is corroborated by the physical facts connected with this collision, and clearly shows that the Villere car was operated at an excessive rate of speed at the time of the accident.

The impact of the onrushing street car was so great that it catapulted plaintiff’s machine up the car tracks a distance estimated at at least 50 feet. The chauffeur was hurled by the impact from his position at the wheel of the automobile, and was bruised about the body and his fingers dislocated. John J. Gannon, the plaintiff, who occupied a rear seat in his machine, had both hands cut from the shivered glass of his car, five ribs broken, and sustained also serious contusions of the head and bruises of the body. The violence of the blow from the collision broke two wheels, all of the running board, bent the chassis, and demolished the top of the Gannon car.

The Liberty Six sedan, in which the plaintiff was riding, was not merely pushed along1 the tracks by the speeding street car, but was struck one terrific blow, which had sufficient propulsion to drive this machine up the tracks to the place where it finally rested. The conductor and motorman of the Villere car were very careful in their testimony as to statements about the speed of this car. The motorman states that the car was operated at three-fourths speed, and that it was coasting. We are not informed by the record as to what rate of speed is attained by three-fourths speed. The conductor and motorman both testified that the Villere car slacked up to see if anybody was jumping off of the Spanish Fort train, which was approaching this crossing on the inbound track at the same time the Villere car was nearing it on the outbound track. They also swear that the hand brake and the reverse were both applied before the accident. Yet, as counterbalancing this testimony, we have a Liberty Six sedan, hurled 50 feet up the track, and almost demolished by the collision. In the face of these- plain physical facts, we cannot accept this testimony as reflecting the true facts of the case, and we feel justified in reaching the conclusion that the speed of the Villere car, as it approached this crossing,'was excessive and extremely dangerous to vehicles attempting to cross at that particular point.

The conductor and motorman both testify that the gong was sounded as they approached the North Rendon street crossing. The conductor of the Spanish Port train, which first passed the crossing and then the Villere ear about 45 feet below it, states positively that he heard no gong signal from the Villere car. Neither did J. B. Perchaud, Jr., who was in the Cole car, and near fhe scene of the accident, hear any such signal. Nor was the gong heard by the chauffeur of the Gannon car, before he drove on the track. The weight of the testimony in the case is to the effect that no such signal was given by the employees of defendant railway company in charge of the Villere car.

J. B. Perchaud^ Jr., describes the Villere ear in question as “one of those Villere cars, as it runs it bounces up and down that way.” It is further described in the testimony of L. J. Guilbeau, a motorman of defendant railway company:

“Q. Was that a new car? A. No, been in service a long time. Q. A very old car? A. At times they put it on runs. Q. It was not even painted, was it? A. It had been painted when it was new. It was pretty old then. Q. Pixed up since? A. Yes, all fixed up since. Q. Did it have an air brake on it? A. No, hand brake.”

W. P. Loan, assistant claim agent of defendant railway company, testified as follows, concerning the hand brake:

“Q. Say, when you have car operated by hand brake and the car is in good condition, and proceeding along at three-fourths speed, and there is a sudden necessity to stop the car, also assuming that the brakes are in good condition, within what distance would a capable motoneer be able to stop that car with a hand brake and that car is empty? A. Within 100 to 125 feet. Q. In how much shorter time would he be able to stop under the same circumstances by using the reverse as well as the hand brake? A. Between 50 and 75 feet, because there is a momentum to the car.”

This expert testifies as to the distance that a stop could be made under favorable conditions at three-fourths speed. This testimony, however, throws no light on stops made at excessive rates of speed, except to prove that attempted stops, under such circumstances, are utterly impracticable, within any reasonable or safe distance, after the danger is discovered. To operate a light car equipped with a hand brake, at an excessive rate of speed, over a public crossing in a populous city, in absence of the usual signals, as in this case, is proof of gross negligence, especially on account of the obstructions, more or less, of view at this crossing, on the right-hand side before reaching same, occasioned by poles and shrubbery located along the neutral ground on the lower side of Canal street. This crossing was rendered especially dangerous, at the time of the accident, by the fact that a Spanish Eort train, composed of motor car and trailer, was approaching the crossing on the inbound track and at the same time the Villere car was neaiúng it on the outbound track. The Gannon car had stopped at the crossing to allow the Spanish Eort train to pass. This is the testimony of the chauffeur of the Gannon car, and it is fully corroborated by the conductor of the Spanish Eort train, who states that he noticed the Gannon car standing there, as he stood on the platform of the motor car of the Spanish Eort train, and as it was passing the crossing. This is necessarily true, as it is admitted by all of the witnesses, that the Spanish Fort train passed the crossing first, and passed the Villere car about 45 feet on the other side of the crossing.

The conductor of the Spanish Eort train testified as follows:

“Q. When you first saw the automobile, you were about in the middle of the crossing? A. Yes, that is, the train was in the middle of the crossing. We had two coaches. Q. The automobile was at the crossing? .A. Yes, sir. Q. Where was the automobile, across the other track? A. About 10 feet out from the track. Q. Was it partly headed to cross the street? A. No, sir; she was on an angle. Q. And it stopped? A. Yes, sir. Q. Was that automobile visible to the Villere car in that position? A. No, I cannot say that.”

This testimony was given on cross-examination. The witness had already testified on direct examination that he saw the Gannon automobile at this crossing and it had stopped.

This testimony of the conductor of the Spanish Fort train flatly contradicts the testimony of the conductor and motorman of the Villere car, in their statements that the Gannon ear, without stopping, turned suddenly to the left and moved on this crossing in front of the Villere ear. The testimony of these two witnesses is also contradicted by that of the chauffeur of the Gannon car, that he stopped to let the Spanish Fort train pass by the crossing.

The conductor and motorman of the Villere car both admit in their testimony that they saw the Gannon car in Canal street, when the Villere ear had reached the middle of the block, at the end of which is located this crossing. They were both aware of the presence of this car, and, if we take their testimony as true, their eyes were fixed upon it from the time they first observed the machine, until the collision occurred. These witnesses would have the court accept their statement that the Gannon car, without stopping at the crossing, without pausing an instant to ascertain if the tracks were clear, suddenly turned from its course on Canal street upon the outgoing track, and deliberately ran in front of the Villere car, as if the occupants of this automobile were bent on self-destruction. These statements of these witnesses are not satisfactorily corroborated. • They are not the true facts of this case. When they first saw this machine, they should have slackened speed, placed their ear under control, and sounded the gong, as they were not only approaching a public crossing, with footpaths on each side of same, but the Spanish Fort train was also approaching the same crossing, at which some of its passengers might alight. The danger of collision under such circumstances with either a vehicle, passenger from the other train, ■ or a pedestrian was self-evident, and the greater the danger-, the greater was' the necessity for their exercise of vigilance and care. Had they done what the circumstances of the situation clearly demanded, there would have been no accident, even if plaintiff had been at fault. We therefore are of the opinion that plaintiff is entitled to recover.

Some question has been raised about the amount of damages for the wrecked car. We have no way of ascertaining from the verdict of the jury what sum was allowed by them on this item. The quantum of damages claimed by plaintiff, including -that to the automobile, is the sum of $27,107.60. The verdict of the jury is for the sum of $5,000 in solido against defendant companies, and for the additional sum of $5,000 against the defendant railway company. In the itemized statement in plaintiff’s petition, damages to the automobile are fixed at $1,150. The record fail^ to disclose how much of this sum was included in the verdict returned.

The plaintiff was severely injured by, the collision. He was badly shocked, and, when examined by Dr. Souchon at the Hotel Dieu, was semiconscious, cold in his extremities, clammy, and perspiring very freely. He sustained in the accident a badly contused and lacerated wound of the head, small wounds in both hands, a number of bad bruises, and four or five broken ribs. His recovery was slow. At the time of the accident plaintiff was the president of the Hibernia Bank' & Trust Copapany, and was receiving per annum a salary of $25,000. Since sustaining the injuries in the collision, plaintiff has not been able to follow any pursuit, because of physical weakness and nervous condition. Under these circumstances, the verdict is not excessive.

The judgment appealed from is therefore affirmed, at the costs of appellants.

On Rehearing.

By tl\e WHOLE COURT.

OVERTON, J.

While John J. Gannon was crossing the tracks of the New Orleans Railway & Light Company, in his automobile, at the corner of Rendon and Canal streets, in the city of New Orleans, one of the cars operated by the i'ailway company ran into Gannon’s automobile, knocking it some distance. The unfortunate occurrence resulted in injuring Gannon severely, and in damaging the automobile considerably. Because of the injuries sustained by him, Gannon instituted this suit' against the railway company and its bondsman, the National Surety Company, for the sum of $27,107.60, alleging, as his cause of action, that the car, which ran into the automobile, was being dangerously, negligently, and unlawfully operated at the time of the accident; that the motorman made no attempt to apply the brakes timely, and, if he did, that the attempt, on account of the excessive speed of the ear, was a failure; that the car was an old one; that its brakes were of old style, and not suited for use at the speed at which the car was being propelled; arid that the National Surety Company, having signed, as surety, the bond required of the. railway company by the ordinances of the city of New Orleans, is liable as surety on said bond to the full extent of the damage sustained by him on account of said accident.

The railway company, through its receiver, answered by denying negligence on its part, and by averring substantially that plaintiff’s chauffeur, who was driving the automobile at the time of the accident, attempted to cross the tracks, used for the operation of its cars, when one of the cars was so near the crossing that it made it dangerous to go on the tracks, and that plaintiff’s injuries were due to the carelessness of his chauffeur, whose negligence, it is averred, is imputable to plaintiff. The defense of the National Surety Company, in so far as it is necessary to notice it, is the same as that of the railway company.

Some time after the filing of the suit, Gannon died. His testamentary executor has been substituted as party plaintiff.

The accident occurred on the afternoon of October 31, 1918. Gannon was driving on Canal street, in the direction of the Cemeteries. When he reached a point between North Lopez and North Rendon streets, he concluded to return, and so notified his chauffeur, who, on reaching North Rendon street, turned the automobile to cross to the upper side of Canal street; but, as the chauffeur saw a train, consisting of a car and a trailer, near the middle of the block, coming in from Spanish Fort, he stopped the automobile, near the neutral ground, at the crossing, about 16 feet from the outbound track, to permit the train to pass. At that time there was a Villere street car, running in an opposite direction from the incoming Spanish Fort train, on its way, on the outbound track, to begin its run on Villere street. The moment the Spanish Fort train passed, Gannon’s chauffeur attempted to cross the tracks. As he was crossing the outbound track, which was the nearer of the two tracks to him, the Villere car ran into the automobile, and knocked it some 50 feet distant. Gannon, as stated, was severely injured, and the automobile was seriously damaged. The chauffeur escaped with only comparatively slight injuries.

The street car, at-the time of the accident, was being propelled at an excessive speed; though not so much so as to show a reckless disregard for human life, still the speed at which it was being operated showed negligence on the part of the railway company. The motorman testifies that he sounded the gong, when the danger appeared, and did what he could to stop the car and avoid the accident. His failure to have at least checked'the ear sufficiently to have avoided the accident was due, we think, to the excessive speed at which he was operating it. Gannon, at the time of the accident, was absorbed in thought, and knew but little more concerning what occurred than the fact that his automobile, while crossing the tracks, was struck by a street car, which resulted in injuring him and in damaging his automobile. His chauffeur, however, testified that after he had stopped to permit the Spanish Fort train to pass, and before he started to cross, he looked io see whether a car was approaching. on the outbound track, hut neither saw nor heard one coming, and that he therefore attempted to cross.

The chauffeur seeks to account for his failure to see the approaching Villere car by pointing out that there were obstacles that obstructed his view. The record discloses that there were obstacles on the neutral ground, consisting of a light post, a tree, a tall palm, and an oleander bush; still these obstacles were not so located, nor were the branches of the tree, or the foliage of the palm, so low as to entirely obstruct the view; and in our opinion, had the chauffeur made an ordinary effort to ascertain whether a car was approaching the crossing on the outbound track, he would have observed the Villere car nearing the crossing, and would have seen the danger in attempting to cross.

We therefore conclude that the chauffeur was at fault in attempting to cross at the time that he made the attempt, and that while the railroad company was also at fault, yet, as the fault of the chauffeur, who was Gannon’s servant, supervened and brought about the accident, Gannon cannot recover. Heebe v. New Orleans & C. Railroad, Light & Power Co., 110 La. 970, 35 South. 251; Dewez v. Orleans R. Co., 115 La. 432, 39 South. 433; Dubose v. New Orleans Ry. & Light Co., 123 La. 1029, 49 South. 696.

For the reasons assigned, it' is ordered, adjudged, and decreed that the verdict of the jury and the judgment appealed from be and the same are hereby annulled and set aside, and it is now ordered that plaintiff’s demand be rejected at the .costs of his succession in both courts.

LAND, J., dissents.

ROGERS, J., dissents, being of opinion that judgment appealed from should be reduced to $5,000 and, as thus amended, should be affirmed.  