
    Charlea F.Claiborne, Judge.
    BOSTON INSURANCE CO. VS HOWARD N. MOODY, Appellant.
    No. 7891.
    December 20th, 1920.
   BOSTON INSURANCE CO. VS HOWARD F. MOODY, Appellant.

No.7891.

Appeal from Civil District Court, Hon. Fred D. King, Judge.

CHARL3S F. CLAI30RH3, JUDG3.

This is a damage suit resulting from the oollision of two automobiles.

The plaintiff avers that on Larch 6th, 1S17 Fred S.Weiss —■-and ilrs. Friend, his sister, were owners of a seven na3ser.ger Cadillac automobile of the cost price of 82250 in first class condition ar.d as good as new; that the said Weiss and his sister had insured their auto with nlair.tiff comonny; that on s-id date, said auto was run into by an auto belonging to the defendant, E. E. Foody,. end driven by him, and was da.age’’ to an amount of $1490.70that oetitior.er was obii yr.ed to naj^rr.’. did nay^ said amount to 'Weiss and to bis sister, an'1 '.vas by them subro.grted to all their rights against the said moody. That the collision happened in the manner following: ",'eiss1 auto was driven by a careful chauffeur between 9 and 10 o'clock in the morning along the down town side of Louisiana Avenue, running slowly from the River towards the lake, when, on crossing the river side of St. Charles Avenue, it was run into by the auto of defendant driven by hiwself; that defendant was driving his auto down St.Charles Avenue towards Canal Street at an. excessive rate of sneed; R at plaintiff's auto was hurled against an electric li d;t cole on the neutral grouna at the corner of Louisiana and St. Charles A Avenues; that the collision was due solely to the fault*'of the defendant^while V.'eiss’ chauffeur was not guilty of any negligence^ and did every thing in his power to avert R.e accident.

Defendant admitted the collision but denied that it occurred through any fault of his an', alleged or. the contrary that it was due entirely to the negligence of 'leiss' chauffeur in that h-e attempted to for3 his way across the street in front of defendant's auto at a reckless rate of soeed; that he did. all in his power to avoid a collision by aoolying the brakes on his auto; he admits that '.Teiss' auto struck an electric light pole on the neuttal ground as alleged; but that this was the result of the excessive rate of speed at which the ’7eiss car was travelling, and he denies that the car '.vas hurled against the pole as alleged; he further alleges that his own auto was damaged to the extent of $395 for the recovery of which he reserves his rights against Weiss.

There was judgment for plaintiff, and defendant has appealed.

There were only five witnesses examined regarding the accident. They were: for the plaintiff, Charles Thornton, a bystander, and Arthur T. Rudkin, Weiss' chauffeur; for the defendant, H. N. Moody, jand Smith and Jongs, both his emoloyees.

Thornton testifies: He lives in Lake Charles; is a chauffeur since 1902; saw the accident; was standing on the down town river corner of Louisiana Avenue and St. Charles right up against the fence; be first saw Weiss1 car going out Louisiana Avenue; it had a little silk flag stacked-up in front worn to a frazzle; then he saw ,him coming back; just then he saw defendant's car coming, along in front of Dr. Newman's house, on the river side corner of St. Charles and Delachaise;

"he was coming in at an awful speed and his front wheels were just shaking"

and he was blowing his horn; he heard the noise of the machine __-j--- ^^4^* before he heard the horns; when Weiss' rolled up to the corner and almost came to a stop before he attempted to cross; he started to cross, and

"this fellow looked like he hugged the car track, and he crushed into and drived him into the cost, a telegraph post, and throwed the chauffeur out; x x x "

he was right over there after they got them out and picked the men up, and l’.oody said he thought he was nutting the brake on, and be was accelerating; the Moody car did not slow un before the accident; it must have been going at the rate of 35 to 40 miles an hour; the '.Veiss car crossed St. Charles at a rate of 8 or 10 miles an hour; the accident occurred on the wood side of St. Charles Avenue; be drove the car right into the telephone post which kept it from tundir: over; the i'oody car struck the tail end of the ’Teiss car; the two hind wheels on the left hand side; there was room behind the .7eiss car, for the Koody car to pass, room for two cars; there ’.vas nothing to prevent the I'oody car from seeing the V/eiss car; he was standing on the sidewalk facing the wood, waiting for “in. 3ddy Greever"; facing uptown wood corner; he heard the Koody car before he heard the horns; the Koody car began to sound its horn when it got near Solari's at the pressing shop; the ¡..oody oar was hugging the neutral gound; Weiss' oar was a left hand/^rive; the chauffeur was on the side on which Lioody was coning; V/eiss' chauffeur is careful; he has known him for five years; he

"never knew him to bend a fender in his life".

V/eiss chauffeur is white; and thirty-five years old; witness is colored; there is room on St. Charles Avenue for three cars abreast - probably four; under City Ordinances cars running on streets north and south have the right of way over cars running east and west; a Cadillac car is a heavy car; defendant's car, a Dodge, is a light car; V/eiss' chauffeur was knocked out on the wood side of the post; the accident happened at about nine o'clock in the morning; there was not much traffic; there was nothing to prevent the Weiss chauffeur from seeing the lioody high rate of speed; when the lioody car reached Solari, it crossed to the river side of the street and then came down across the Louisiana Avenue tracks on a 45 degree angle towards the neutral ground; that is how he hit the V/eiss car; there was no reason to hit the 7/eiss car; it was iust by reckless driving.

Arthur T. Rudkin testifies that he was V/eiss' chauffeur; had been for ten years; before that had been five years chauffeur for iirs. Isidore Eewraan; never had any accident before; his car .vas in first class condition, practically a nev/ car; when be approached St. Charles Avenue he looked up and saw nothing; when fce got to the centre of the street he noticed Koody's car coming down very fast; he then changed from second to third speed, that is, to a higher speed to avoid being struck by the car; but his accelerator did not take; the front wheel of his car was already on the track to make the turn uptown when he was struck on his rear wheels about three feet from the oost; he was ía,.£.¡ed aaninst the oost; the oost was broken in half; all that held it the wires; the lights of the 1-oody ¡.'achine were starred on his oar, and also the Dodge emblem; the blow knocked hiu* comoletely out of the car; the whole rear car wa3 nraoti-cally knocked out, the rear wheel and "transmission"; when he got to the corner of St. Charles Avenue, he saw the Moody car almost behind Solari's wagons coming at a terrific rate of speed; as re accelerated his speed, instead of the caí speeding up, it leg red; it had a defect; had the oar sreeded up, Moody's car would not have caught him; he would have been out 9f his way.

H. N. Moody, the defendant, says: He is a contracting engineer; he was driving his car himself on the morning of the accident at a speed of 18 and 20 miles an hour; on reaching Solari's he encountered ¡mny wagons backed up against the curb; he looked over the top of the wagons and not seeing any car, he slowed down and accroached Louisiana Avenue and when he reached about the middle of the lower rails of the car tracks h.e saw z¿ the 7/eiss car coming from behind two covered wagons trailing each other coming from the River going towards the woods;

"realizing that the street was wet I attempted to put my brakes on, but realizing it was futile I immediately apnlied my accelerator to try and get by the Weiss oar as there did not seem to be much chance of him stopp ing at the rate of speed at which he was traveling; he looked to me to be travelling in about the sane speed as I was"; '

he was then twenty-seven feet from the place where the accident happened; the 'Weiss oar was also at the same distance; he took the measurement of all those distances within a, half an hour of the accident; the wagons were going in the sane direction along Louisiana Avenue as the Weiss car; they were upon his left next to the neutral ground, and he passed them on the lower side; Louisiana Avenue had been scrinkled; we both accelerated and collided about the saa.;e time; in his car with him were Mr. Copp, Mr. Smith, and Mr.Jones; they all catapulted or were shot out of their oars, Rudkin also, Ur. Jones through the top^and others out at the side, and all were injured; one was knocked senseless, and another badly hurt; he first put on the brakes,and then accelerated; the roadway of both Louisiana and St. Charles Avenues is about twenty-four feet wide; he hit the Weiss car about the middle of the road-way; he hit the Weiss car; when the two cars collided, they were going at a greater speed than twenty miles an hour because they both accelerated; when the two cars became visible to each other, the Weiss car could have turned down St. Charles Avenue if he had been going slowly; but at the rate of speed at which he was going he had nothing to do but try to get by; he could have stopoed and slowed down before coming to St. Charles Avenue.

J. C. Smith, one of the occupants of the car, says it was going at about twenty miles an hour;- he first saw the Weiss car when he was crossing the Louisiana Avenue car track about thirty-five or forty feet away; there 'were wagons on Louisiana Avenue; did not hear any horn from either automobile; the impact of the car assisted the post to break.

J. C. Jones testifies that Moody was driving at about twenty miles an hour; he works for Moody, so does Smith; Moody blew his horn before he got to the car-track; he went through the top of the car to the pavement.

Ordinance 1392 Commission Council Series adopted Aoril 15, 1914 controls the traffic in the City of New Orleans.

Section 2 (a) provides:

"A vehicle, except when passing a uehicle ahead, shall keep as near the right hand curb as possible".

Section 4 (b):

"Subject to Section 2 of this ordinance, everything being equal, all vehicles and street cars going in a northerly or southerly direction shall have the right of way over all vehicles and street cars going in an easterly or westerly direction".

Section 5 (b):

"No vehicle shall cross any street or avenue running north and south or make any turn at a sneed rate exceeding one-half its legal speed limit".

Section 14 (a);

"The terms North and South" as used in this ordinance are used to indicate directions narallel to the Mississippi River, North being in the direction of the St.Bernard Parish line and South being in the direction of Jefferson Parish line".

(b);

"The terms East and West as used in this ordinance ¿re used to indicate directions at right angles with the Mississippi River, East being in the direction towards the Mississippi River, and West being in the direction of the Lake".

Ordinance 3027 adopted January 5th, 1916 Section 1:

"That the speed of automobiles and motorcycles in the City of New Orleans in the district bounded by Howard Avenue, St.Louis Street, the River and Basin Street shall be ten miles per hour, and on other streets and roads of the City twenty miles per hour".

Our conclusions from the testimony o^uoted above and from other parts which it would be too long to reproduce are as follows:

Weiss' car was running along the lower side of Louisiana Avenue, which has a neutral ground in the centre; it was.running in the direction of the lake, or from East to West; when it got near St. Char les Avenuej it passed a^vngon having -¿SEF-tsw another wagon; instead of passing the wagons on the left, as it should have done, undertlie ordinance, it passed them on the right, thus placing the wagons between it and the neutral grounds in that position, it could r.ot see the machines coi ir.g down the avenue, nor could they see it; a result which it v/as evidently the object of the ordinance to irev-T.t. It thus hamened that Moody did not see Weiss' car, nor Bid the chauffeur in Weiss' car see Moody; they saw each other only after the Weiss oar emerged from behind the wagons on Louisiana Avenue and rolled into the middle of St.Charles Avenue; both then saw the danger of the situation; it ms too late to check up, and speed was their only salvation; VIeiss attempted to accelerate, to get out of i'ioody's way, bpt his machine was out of order, and -would not respond; lioody accelerated also, with the hope of passing ahead of Weiss; in this attempt he instinctively swerved his car to the left, and instead of getting out of the way of Weiss' who vías also forging ahe¡MlgJce, TO|s^too late and ran into him with much violenae,a«i ;¡aii..ed him against the post/But in all this,

Weiss' chauffeur was at fault. Be was guilty of two violahbns of the City Ordinances governing the running of autos, lo When he passed the two wagons going in the sane o’irection he was, he should, aceoring to the ordinance, have oassed them on their left. Had he done so, he would have been in a better position to see lloody, and lloody would certainly have seen him ea.rlier, and the accident would not have haooened. Plaintiff's witnesses do not deny the presence of these two wagons.

2o Koody going down St.Charles Averue was travelling, accord- ^ ing to City Ordinances, in a northerly direction. He had the j right of \;ay, He was only bound to use ordinary care in avoiding'' oars crossing his path from either side^ ¿is it was not expected n that any would do so ./it was l/eiss' duty, on the other hand, to stop when he reached St. Charles Avenue, or at any rate to so slacken inis nace as to have his oar under -oerfect control and to look in order to avoid a collision with a car running down St. Charles Avenue. This he did not do. He did .not even hear the oar which,according to Thornton,was blowing its horn oontinuous- / " t i ly. He says be checked up almost to a stop, and looked un the street and saw no car coming. Iiis statement does not bring conviction. If be had checked up, he would have had 1'is c;r under control; and if he had looked up^be could not have helped seeing the lloody oar v/i ich must have been very close to I ii.v, since it caught up with him before he had time to cross the street. The street was only twenty-four feet wide, and if re was going at a speed of ten i.:ile3, as Thornton says, and lloody at twenty miles, lloody, could.not. havf been more than forty-eight feet from him. On a*nr ight ¡rorwifig of the r.onth. of larch, between ten and eleven, it would have been easy to see the car coring at twice that distance, and n.erhaos four tinas. Thornton, who was standing uo against the fence, at least nine feet from the street curbing, saw and heard, it nearly three hundred feet up the streets If he did not see the car it was because he did not use proper diligence to see it. When he says he saw it, it was.too late to stop; he was in the path of the oncoming car of Moody; all he could do was to speed up; his machinery would not respond, ardhe remained in Moody's road; Moody dashed into him and damaged him; but we think that he brought his troubles upon himself for which he cannot hold the defendant liable.

It it therefore ordered that the judgment be reversed and that there be judgment in favor of defendant rejecting nlaintiff's der.mnd at his cost.

Judgment reversed.

December 20th, 1920.  