
    NO. 8250
    COURT OF APPEAL PARISH OF ORLEANS
    WILSON & COMPANY INC. OF LA VS. CRESCENT TRANSFER & SHIPPING CO. INC.
   Dinkelspiel; J.

claims damages, This suit/ in that plaintiff avers / • that the defendant oompany through its driver of an auto truck travelling Horth or toward downtown in Burgundy Street, the said truck of defendant being then about sixty or eighty feet removed from the intersection of Lafayette Avenue, when petitioner's wagon was in the aot of crossing asid street.

Alleging further that while the said vehicles were in the respective positions as aforementioned the defendant's truck driver endeavored to force the same ahead of petitioner's wagon as it was crossing the said street intersection and the speed of defendant's said truck being accelerated for that purpose.

That under the circumstances it becomming apparent to the driver of plaintiff's wagon th-it a collision was imminent;, said driver attempted to avoid same by swerving his mules to the left into Burgundy Street, hut that despite this action on his pert the defendant's truck struck the mule on the right of rear side of petitioner's said wagon, as the result of which the lag of said mule was broken, and it became necessary to kill him at the time of the accident; that the value of the mule was $375.00, the wa.gon was damaged in the sum of $34.50 and three dollars paid for the services of the veterinarian.

Alleging further that the collision and damage herein complained of was due solely and entirely to the negligence of the party driving defendant's automobile truck in that the 3-.i't party failed to timely exercise the duty of "lookout" in that he failed to give the right of way to petitioner's wagon as it star1-ed across the street intersection and thst he failed to avail hi...self of the last olear ohenoe to avoid the collision end drdve the truck at a high and negligent rate of sp-ei.

The answer of defendant denies that it is responsible for the doraage incurred and goee on (Art. 5) to allege that "admits thet when the collision w«.s imminent ..nu a; time when it could not be avoided that plaintiff's driver did attempt to avoid it; further alleging that the said accident was due wholly to the fault and negligence of psfcxii plaintiff's driver who attempted to cross Burgundy Street in such close proximity to the truck of respondent ths.t it was impossible to avoid striking the said mule, notwithstanding every effort mads by defendant's chauffeur and th;t had the driver of said wagon stopped and looked as he should have done, he would have seen the truok of respondent proximity in time to have avoided an attempt to pass when the/gxgxitmiwty of the truck made it impossible for the wagon to pass in safety. And finally defendant alleges that when the mules and wagon had crossed in Burgundy street or were near the intersection of the two etrests that it was impossible for the chauffeur of defend- • ant's truok to see him and had the driver of the wagon not attempted to cross at a time when it was impossible to do so without being struck, the said collision would not have occurred.

In behalf of plaintiff there were examined three witnesses, Joseph Harris, Patrick A. MoGill and John E. Soott.

Harris testified that he was the driver of plaintiff's wagon involved in *hls oollision at the intersection of Lafayette Avenue and Burgundy Street in this City on March 18th. 1930; that he vías in the act of crossing Burgundy Street in the direction towards the river; the truok was coming down Burgundy Street and that he was driving the wagon to whioh were attached two mules; he points out on the photographs annexed the exact spot where he first saw the truok and states he was in the middle of Burgundy Street and that he was about fifty feet from the truok when he first saw it right in the center of Burgundy Street and hie mules were walking and he saw the truok coming in the curve and saw that they were going to be hit, he swung his mules to the left and he did'nt toy to stop, he speeded and he did'nt have room enough and when he out short defendant's truok hit him and got tangled in his front wheel dragging him to ten or tweleve feet and threw both mulos to the ground. One of the mules was so that he ba-dly injured/rc-:S vas nubsequently killed and there was some slight damage to the wagon, the pole being broken»

On Crone examination amongst other things!

Q» And it is a faot.„ where you wore, when you say that you started aorose that you had a olear view of Burgundy Street?
A, Ho 1 had a clear view of about fifty feet until the curve out it off straight up»
Q. You could have stopped your Lillies?
A. Yon but if 1 stopped there was no room for him to pass,

Mr. McGill another witness for plaintiff who witnessed the accident at the time alleged, testifies that ho was standing right on Lafayette Avenue and Burgundy Street in the garage,

Q„ State to the Court, what, briefly is your observation of that occurrence?
A, I was standing right in the garage door facing Burgundy Street rah you can eee about ninety feet up Burgundy Street, there is a very bad curve there; plaintiff’s viagon was going out Laxayotte Avenue, and it me aboftt half way in the middle of the street of Burgundy Street, going towards the river, on Burgundy Street, tho truck ocming down Burgundy Street had plenty of time and sufficient time to check up and avoid hitting that animal, he .could not got aoross to owing his mules to go down Burgundy Street, and this truck struck the mule's leg juot above the fetlock, between the hoof and kneeg and the animal stood and could'nt move; the driver of the truck never stopped after hitting the aniicel for fully ninety f»et down Burgundy Street, I went after him. Being Biicssa shown a sketch of the 90ene of the accident he was asked if same was correct and whether the curve into Burgundy Street is as sketch shows up toward the river.
A. She curve is up Burgundy towe-rds Cantil; you have get to go around that ourve to go down.
Q. Suppose a wagon comes along going towards the point ues.ribed as X, Is it hot a fact that being between the point Y and the point X he could look up Burgundy Street in the direction of Canal Street and see anything coming down?
A. He could.

The witness Soott knows nothing of the accident save and except the value of the mule, damage to the wsgcn, amount paid to the veterinarian.

Witnesses for the defendant were Wiggins, Jules H. Caulfield, Charles Gatden, Jemes Perkins.

Wiggins testifies:

Q. Where you on a truok of the Crescent Transfer Company which had a collision with a wagon of Wilson & Company at Burgundy Street and Lafayette Avenue?
á. Yes Sir.

He was employed by the Custom House in the scaling department and going to the Ar_y Base to get scales, sitting in the middle of the trailor and going shout ten or tv,-eleve miles and seated on the left he,nd side being the Woods side and wss looking towards downtown, the way they were going.

0. Did you see the mules and wagon approaching the truok on Burgundy Street?
A. Yes, I saw them when they started to cross.
Q. About how far from the corner of Lafayette Avenue wia the truok bbx&sx when the wagon started to cross Burgundy Street?
A. I think they both started across at about the same time. There are three streets ocming in there, you can't tell very well the corner.
q. When the wagon starred across Burgundy Street did the wagon have time enough to cross in safety ahead of the truok?
A. Ho, he didn’t.
Q. When did the driver of the wagon firat stop or try to stop his mules?
A. To my knowledge he didn't try to stop; I didn't see him draw his lines at all.
Q. Suppose that when the truck was fifteen or twenty feet away from the point of ucoident, the man had stopped his mules, did he have time enough to do that?
A. Yes he hed time enough to do that.
Q, He swung over to his right in an effort to pass ahead of the mules.
A. The mules were still coming along and he kept to the right hadd side.
0,. He went over to the extreme right hand side to pass the mules? A. I suppose it wu.3 in an effort to pass the mules.
Q. What time of the day was this?
A. It was •'•-ft'-r lunch, we had lunch ?.t the Custom House and went right down; X oan't give you the exact time.

Jules A. C.-.ulfield, witness for the defendant testifies:

Q. Where «rere you at the time of the collision?
A. I was sitting on the truck, we were going to the Sugar Refinery after some scales. I was sitting on the trailer behind the motor, and this ws on of Wilsons, coming out of che direction of L‘ f&yette A-, snue ran into the wagon and hit the mules. The wagon was trying to pass this truck; vc were going a.t the rate of eight miles because when you get tc Lafayette in the junction of Music Street, you have tc slack for the curve; there is a water trough, and I don't know whether he came from the water trough, but he tried to pass us, p.nd he oould'nt.
Q. Wr-s he walking or trotting.
A. Ho, on a little gallop,
Q. Was there anything a.t that time to obstruct his view as he reached the lower pert of üurgundy Str'et, 30 a.s to prevent him seeing the truck coming down?
A. iiothing was in his way but the truck.
Q. When he attempted to cross in front of the truck, shout how many feet away from the truck at that lime was he from the point of collision?,
A. Right in the middle, midships, in the middle of the crossing there is üusio Street on one side and Lafayette Street on the other, and on this side of the Stress, ano. we were going in the center of the street when he hit us.

Reading of this witness's testimony on or os e-sx-imi nation in no wise changes in our opinion his evidence on direct examination.

Iir. Ch:.rles Gatden testifies:

He is employed e.t the Customhouse os one of the weigh-er's assistants, scale men, was on the truck then it collided with the mules attached to a wegon belong to V?i?, son & Con.o-.ny and was going to get some scales, left the Cusco.i. House about lunch time, ■vas sitting inxihKxirxiixx on the front sect on the right river 3iie going down, its a great big long track, open and could s:-s what was going on on the opposite side; the driver is in front, he is closed in, he is sittin; 'n front and the truck i3 something like a v-gon, the trailor is hitched to where the driver is The rear p'.-,,'t of the trailer is the highest.

0,. V/hsn 7/-„3 the first time you 3s.w this wagon -.-.nd these mules; how fur from the point of the accident when you first saw them?
A, V/hen X first saw the wegon it was coming in ftom one of those streets, I not f-.mili-.r with those streets down th;re; I think it \it.s Lafayette Avenue, I think he was ooming in as we were passing by. '
Q. At what 3peed wee this wagon trying to cross Burgundy Str-et; how were the mules going?
A. Trotting.
Q. Tftien they started to cross the str et down ,rich your truck was ocming how for vi s your truok from the point of collision?
A. The heed of the truck was past and this wagon came in and struck the mi Idle portion of the truck on the left side.
there Q. At the spped at which your truck yas going w-is/itaix time enough for the wtgon 6c stop in front of it?
A. Ho, the head part afxtk had done crossed over when this wagon came.

On oross examination.

Q. 'Cra didn't see this wagon until it went into the side of your truck?
A, Ho, I saw the wagon coming end the driver blew the horn before coming to the corner, and he crossed over, and the next thing I knew it came into us.

James Perkins, another witness for the defendant testifies:

C¡. Were you on one of his trucks at the time when it Collided with eome mules belonging to a Wilson & Company at Lafayette Avenue and Burgundy Streets.
A. Yes Sir.
Q. In whot part of that truck viere you sitting?
A. I w-.s sitting in front with the driver.
Q. At about what speed was that truck going down Burgundy Street?
A. About 8 to 3 miles an hour.
Q., When was the first time you saw the wagon?
A. We were on Burgundy Street, you see, one side is Music Street and the other Lafayette Avenue, we were going across and the wagon look id to ms like about ten to fifteen feet from us, and the .invar pulled up his mules and just as we crossed Ltuoyscbe Avenue the wagon w->3 on the other side of the gutter and I heard u lick, and chey hollered, and the driver stopped, we got down and came back and looked and saw the mule crippled, and the pole was broke, - nd it hit right in the side of the last whusi on the side of th-. truck.
0,. WsSthr.re anything when he re;-ched the lower property line of Burgundy Street to keep him from seeing th>r truck coming down?
A. Ho there was nothing it w&s a olear str-et.

the wagon He was seated with the chauffeur, was on r^e right side and/wns crossing Burgundy Street when he first saw it.

Q, When you first sa,w the wagon it was in the act of going across Bur randy Street?
A. Yes it vras going that way.
Q. There is a bend, in Burgundy Street as you come downtown where you ksk have to turn to the right?
A. Yes.

A oareful examination of the evidence in this case goes to show that drivers must obey the rules and laws of the road and there is in this evidence an ordinance, Ho. 5131 Commission Council Series, which distinctly gives the right of way and Seotion 3 page 3 speaking of wagons and trucks and other vehicles and describing atxsaataxaxd streets and avenues of the city cf Yew Orleans and the direction which drivers must take gees on and thus states:

"On all other streets and at intersections of above streets and avenues, all vehicles shall have right of way over other vehicles approaching' on intersection streets from the left -,nd shall give right of «'ey to those appro aching from the right!1

Commission And this rule cf ths/Sii? Council in our opinion, governs this case.

It has been frequently decided both by this Court and the Supreme Court that "the driver of a vehicle upon the wrong side of a. street assumes the risks of a collision with another vehicle unless he can she' that the party inflicting the injury could have avoided doing so by reasonable care."

Syllabus Jacob Fab ochar vs. L. Blum, I bol 8116/of thi3 Court13 ■decision in that case.

And to the same effect is the case cf Boston Insurance Company vs. Hosetrd 3. bloody, where the syllabus reu..i3"A chauffeur who disregards the provisions of the traffic ordinance and thereby cringe on a collision ana damage upon the .automobile he drives is guilty of negligence 'which dec-rs the owner of the damaged automobile from r-covering damages." This i3 found in Ho. 7891 of the docket of this Court, and there cited amongst other authorities applicable to thi.s oa.se, is the case c.f Schick vs. Jenevein, 145 La. at page 334, quoting from the syllabus:

"The law of the road requiring that s. driver shall turn to the right when meeting another upon the puhlio highway is not an inflexible one, but must be followed unless oircumstanoea and common prudence dictate a different course.
Where one is upon the wrong side of the traveled portion of a roa.d or has not conceded to the other party whom he has attempted to pass tha,t portion of the highway to which he is en-collision titled, end an/asaidSKt occurs,She burden is upon him who so violates the rule to show th;t hie act was not the proximate cause of the injury, or that there were justifiable circumstances which excuses his conduct."

If in this case the driver of the wagon had followed the rules of the road this acoident would not have occurred} in failing to do this he has brought about the result himself and the defendant cannot be held responsible for his gross negligence and violation of the traffic ordinanoe.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Court aqua be and the same la and this suit dismissed, hereby reversed,/costs of both Courts to be paid by the plaintiff.

Judgment reversed.  