
    Dejans Transfer. Inc. -versus- Schmidt & Zeigler.
    No. 8075.
    Court of Appeal. Parish of Orleans.
    Dinhelspiel. J.
   Elnkelspiel. J

Plaintiff institues' this suit against defendant claiming an indebtedness of $497.,50, arising from the fact alleged, that on the 13th. September, 1919, plaintiffs team consisting of a spring wagon with one mule was driven by one of the empoyess of plaintiff, on Water Street, in the City of Hew Orleans, near the Louisville & Hashville Railraod Sheds, between Julia and Girod Streets, and that while said team of plaintiff was proceeding in the direction of Girord Street from Julia Street, on Water Street,or river front roadway, and when at a point near the middle of said block, plaintiff's driver saw an auto truck approaching from the opposite direction at a rapid rate of speed, that said driver in order to give defendants driver room to pass, brought his team to a stand still; defendants truck was about fifty feet from where plaintiff's mule and wagon Stood. That defendant's driver did not slacken his speed and passed plaintiff's mule and wagon on the right side of said mule and wagon, and in so passing plaintiff's mule and wagon, said truok struck the right shaft of plaintiff's .wagon with such force as to knock plaintiff's mule doen and break plaintiff's wagon.

That there was room for defendants driver to have pftssed plaintiff's mule and wagon with savety, but said driver was guilty of reoklessness and want of care in striking palin-tiff's mule and wagon, and said accident happened entirely through the fault, recklessness and negligence of defendant's driver and through no fault or want of case and caution on the part of plaintiff's driver.§. and as a result of the mule being knocked down and injured it was necessary to place him in the oare of a Veterinary Surgeon for treatment where he remained eighteen days, subsequently going into pasture, and after being there for a while removed to plaintiff's stable where he was properly attended to, fed and oared for, itemizing the amount of money expended for the Veterinary, for the killing of the mule, which subsequently died, for the pasture of the mule and for other necessary expendes' in all amounting to the claim as specified and set out by plaintiff, and for which demand Judgment is prayed for.

The defendant denies that it's truck was travelling at an unlawful and reckless rate of speed, and avers, that plain tiff's driver drove his mule and wagon in such close proximity t4 the truck of defendant that it was impossible to avoid strikeing it; that said accident was duly etirely to fault and negligenoe of plaintiff's driver; that defendant's driver did everything in his power to avoid the accident, and the injury to plaintiff's mule was not the fault or negligence on the part of defendant's driver.

Denying further, damages claimed, particularly for the loss of the mule and repair of the wagon, and therefore parys for a dismissal of this cause, and judgment accordingly.

The testimony in this case is confined mainly to the driver of plaintiff's wagon, and he, in may respects oontradicts himself as to the position of his w?,gon and the position of defendant's truck.

He says: " I left the railroad and pulled on the side. There was box oar on the side of my wagon; the defendant's truck was oomdng about fifty feet from me when I stopped my wagon so he ran into me, and hit the shaft and threw my mule down".

In answer to a question by the Court, this witness goes on to oa#:- The truck struck him in front, " and he went about 80 feet from me before he stopped; it hit into the shaft’’. Again; - Q- Was there any room on your right side for him to pass without hitting your wagon? -A- Yes.

Or Was there room enough? -A- There was enough room.

The Court:- Q- What street was that on? -A- Water Street.

Q- That Is the front street out there on the levee? -A- Yes.

Q- That Is where all those trucho are? -A- Yes, Sir.

Q- Is that street paved out there with those heavy blocks?

A- Yes, It has the rook, as you have on Chartres St. Belgin blook.

He goes on, and testified; that the wagon stopped in the middle of the block from Lafayette Street, and the driver of defendant truck turned from Lafayette in to W*6Br Street.

<1- You oould not pull further on the left?

A- No, Sir; beoause I was up against the box oar.

Q- But that was not the right side for you to be on, the left?

A- I don't know about the right side or the left side there; there was a switch engine coming behind me; I oould not get on the right side beoause of some box cars.

Q- If you had given him room to pass you on the right, youx would have been on the right hand side of the roadway?

A- I oould1 nt go to the right on account of the railraod, there was whole lot of wagons unloaded.

Q- How did you expect him to pass on your- right side?

A- He oould have passed beoause he was coming up.

Q- Well, the space was exactly the same whether you .went up or down?

A- On aooount of another box car, I oan't say exactly the distance, if I had gone in there I would have blocked the road and a freight train would have caught me on the track» the train coming behind me.

§- But if you had gone on the right he could have continued on your left? -A- I could'nt because I had Just pulled away from the railroad.

Q- Why did you pull over there? -A- I had got a couple of packages from the railroad and had to put my wagon out of the way.

The next and only witness for defendant was Charles Mutin, who at the .time was the driver of defendant's truck. He goes on to say, that the accident oocuxred by the L. & H. Railroad, on Front Street, and when he came out Lafayette to Front, he slowed up and turn on Front Street in the direction of uptown, and when came up Front Street he drove to the right side of the street, and that was the only wa$ to drive. He first saw this wagon on Front St. about 50 or more yards from where he stood, and it was on the right side.

Q- When plaintiff's driver stopped what did you dot

A- I continued when he stopped. I swung to pass him, but the street being wet, the back part of the truok hit the mule and broke the shaft; it had been raining that day.

Q- Did you try to pull out of the way as soon as you saw the driver of plaintiff's wagon stopt -A- Yes.

Q- Did you use every means at your command to get out of the wayT.AXbe -A- Yes, Sir.

And he also testified, that he was going at the usual speed, 15 miles an hour, and he was pulling out of the tracks in order to try and didge plaintiff's wagon.

Q- If plaintiff's driver haa been on the left side of the road would you have passed him without striking him? -A- Yes.

We have thus given the main portions of the testimony Of both drivers, in order to show, from their statements, the situation at the .time this aooident occurred.

It is evidence to our minds, that if plaintiff's driver had turned, at the time he first saw defendant's truok, to would the left, as he should have done, this accideno wsul never have occurred.

It is further satisfactorily proven, that defendant's this driver did everything in his power to avoid *h«aooident, that he was where he should have been with his truck, and that he was under the belief, as he sould have been and as he had a right to be, that plaintiff's driver would move his mule and wagon, as he sould have done, and thus an accident would have been impossible, but we believe that the driver of plaintiff fearing the the engine with the steam oar might strike him and do possibly a severe injury, he backed up against the box car, as described by him in his testimony, when he should have driven to get out of the way of not only this truok but others in similar position. If there was any negligence, and there was not in our opinion, it was the negligence of plaintiff's driver and not of defendants driver.

For the reason herein assigned, it is ordered, adjudged ahd decreed, that judgment of lower Court, be and the same is now affirmed. Costs of both Courts to be paid by plaintiff.

-Judgment Affirmed-  