
    EDWARD B. LUDWIG versus CHARLES MAURO
    NO. 8626
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    May 22, 1922.
   BY: WILLIAM A. BELL, JUDGE:

This case is on appeal from a Judgment of the irst City Court of Hew Orleans, awarding plaintiff .damages in ihe sum .of Two Hundred and Fifty-Hour Dollars and Hive Cents , ($254,05), the full amount prayed for in plaintiff's petition, ihe Judgment of the Trial Court also having rejected'defendant's claim in reconvent ion.

It is charged in plaintiff's petition that on the morning of December 4th, 1921, petitioner's Dodge Touring Oar, while in a stationary position, was run'into and damaged, at the corner of St, Charles Avenue and Hirst Street, by defendant's automobile, which was driven by defendant himself. It is charged further that the accident was due entirely to the carelessness and negligenoe of Charles Mauro, in that, beyond plaintiff's oontrol, his, plaintiff's, oar, had come to a full stop on the neutral ground, at the intersection of 3t. Charles Areme and Hirst Street, because of the stalling of plaintiff's engine, plaintiff's oar being a new one, not having gone over 500 miles, and the night being cold and damp, the engine came to a stop, and while in that position that defendant's oar, go.ing down the River-si'de of the Avenue, close to the neutral ground on that side, and going at an unlawful rate of speed, collided with plaintiffs oar, and caused damages to the car in the sum of Two Hundred and Fourteen Dollars and Hive Cents ($214.05), and loss of the use of oar to the plaintiff, which he valued, for eight days, at $6.00 per day, or $40,00, making the sum total claim of Two Hundred and Hifty-Hour Dollars and Hive Cents, ($254.05).

Defendant charges negligenoe on the part of plaintiff, and alleges that plaintiffs oar dashed suddenly across the oar trades at the place above mentioned, and ran directly in front of defendant's oar in'such a way as to make it impossible for the defendant to avoid the collision, and that he, defendant, was running at a moderate rate or speed, and observing all traffic regulations. Defendant claims in reoonvention, damages sustained to his oar in the total sum of One Hundred and Eighty-Bight Dollars, ($188,00).

From the written testimony taten'in the Dower Court, we find the following facts:

Plaintiff and two friends were in plaintiff’s Dodge oar, going up St. Charles Avenue, on the Riverside,, at about three-thirty o'elook on the morning of December 4th, 1981, When near the wood oorner of 3t. Charles Avenue and First Street, plaintiff stopped his oar to let out his two friends, and then proceeded towards the River-, aoross First Street, and while ia the middle of the neutral ground the engine of his oar suddenly went "dead,'' leaving the rear wheels of the oar on the River-most-down-going rail of the street oar traok, on the neutral ground. Shis position, the evidence shows, caused plaintiff'3 oar to project a short distance beyond the neutral ground- into the drive-way Of the down-going side of St. Charles Avenue, While in this position, and unable to start his oar, plaintiff testifies that he looked up the street and saw the defendant's oar coming down, at a distance of about two blocks, and that same wa3 going at a speed over thirty miles an how, that he, plaintiff, immediately blew his horn, and that he also shouted to defendant when he saw that he had not heeded the horn signal, and was within a dangerous and short distance from . him. fhe position of plaintiff's oar, the signals given by him. to def endant-,--as roll - as -the cause of-the-stopping of plaintiff's oar on the neutral ground, are all verified by both witnesses-who were in plaintiff's ear before he turned same into the intersection of st. Charles Avenue and First Street. Ehese two witnesses were standing, at the time of the accident, on the lower, River oorner of St. Charles Avenue and First Street, to which'place they had walked, after leaving plaintiff's oar, at the point above stated.

It appears that after the accident, plaintiff’s oar was still with its rear wheels st, or upon the far- River side of the neutral ground, and had, from the impact of the on-ooming oar, bean turned in an angular direction, somewhat down St , Charles Avenue.

The damage to plaintiff's oar was on. the right front wheel, the right wheel guard, or fender, and the forward part of the right running-board, thus showing that this oar was hit squarely on the right side from the front to all of the right forward side extending from the engine to about one foot of the running-hoard.

On the other hand, defendant's oar seems to have been damaged to the extent of having its front bumper driven well into the radiator, making a hole therein on the left of the center of-the radiator, defendant's oar, known as a pilot Car, being the heavier of the two oars, and weighing about three tons.

There were five witnesses to the aooident - three .for plaintiff, that is, himself and his two friends, and two for defendant, that is, defendant anda man who was driving with him at the time of the aooident. There is some testimony also about another man having witnessed the aooident, but he was not produced by defendant, though it is admitted by plaintiff's counsel that had suoh witness been present, he would have testified as did the other oooupant of defendant's oar, who has testified as a witness herein.

All of plaintiff's witnesses are consistent in their testimony that from the moment plaintiff’s oar went "dead" on the track, there was no movement of his oar at all until it was struck by defendant's oar, while on the other hand, the defense made by defendant is that although plaintiff's car had stopped, or .gone "dead" on the neutral ground, that beforS defendant reached the point of the aooident, plaintiff suddenly put his oar in gear' and plunged into the middle of the street, thus crossing defendant's right of way before he ooula recover or swerve out of plaintiff's oourse.

We have given careful attention to defendant's t-v r.-nony on this fact, as the liability of the one or the other .. il-5a;i+ depends principally upon this contention.

Defendant testifies that when about one block up Chañas Avenue, and while on the wood side coming down, though t'.e weather was somewhat hazy, he saw plaintiff's oar standing on the track on the neutral ground, on the inside of the curbing, ’.y the word "curbing" we unde-.." n.l him to mean tl j curbing enclosing the neutral ground. He further.-states that when he got about eighty feet from plaintiff's oar, it sta: ted off, and reached about ten feet outside of the curbing, into, and abe i the middle of the street. If this statement be true, and If plaintiff's oar suddenly lunged into the street, there might be some grouuis for the charge of negligence,made against the plaintiff, but on cross-examination we find that defendant says was about eighty feet when he first saw plaintiff who hud stopped on the tracks, and that plaintiff started to move a little, and then stopped, and went about two feet out of the curbing. Shis position of plaintiff's car about two feet out of the curbing, would have put plaintiff's car with its hi.M wheels resting on the extreme right down-going ridge of the ear trac-K, just where the three witnesses for plaintiff testify the oar was resting at the time of the accident. If defendant saw plaintiff's oar at any time on the neutral ground, whether it was wholly within the curbing, or slightly projecting into the right of way upon which defendant's car was -coming, it was defendant's duty to give plaintiff every opportunity to safely make the crossing , especially as defendant admits that he he<Td plaintiff's horn, saw his ear and his lights clout a block a’.7-;y, and then continues to testify as follows:

" Q. Was there any space between the front of Mr. Ludwig's car and the sidewalk where you could have passed?
A. Yes, sir.
Q. Did you make any effort to go to one side?
A. I was mostly on the lake side.
Q. You were closer to the neutral ground than the sidewalk?
A. My right wheel was in the center of the street.
Q. You just testified that there was plenty of room between Mr. Ludwig's oar and the sidewalk, did you make any attempt to go on the side?
A. Yes, sir.
Q. Did you try to go by there?
A. I mean between the neutral ground and the car line.
Q. How much room was there between the front of Mr. Ludwig's car and the sidewalk?
A. About fifteen feet fully.
Q. How wide is your machine?
A. Five feet four inches or 5 inches.
Q. Did you make any attempt to go in this fifteen feet between his car and the sidewalk?
A. I tried a little but I could not do it, that is where I hit the front of his car.
Q. You observed his ear for eighty feet continuously?
A. For a block, but he was on the neutral ground.
Q. During all that time, there was at least fifteen feet of street that you could pass, did you make any effort to go through that?
A. I oould not because he was going towards the river, there is an incline there.
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£).. You hit this oar, this ear did not hit you?
A. Yes, sir."

She other occupant of defendant's oar testifies that he saw plaintiffs oar stop with bright lights, about the middle of the neutral ground, shan he and defendant were one block away from where the accident happened, and that plaintiffs oar made .another start when defendant was coming near the neutral ground, about thirty or forty feet from First Street. This, of course, is corroborative of defendant's testimony about plaintiff's having made a second start while on the neutral ground, Dut this testimony oannot be relied on, for we find that this witness states that it looked as though plaintiff were trying to start his oar, and that it was probably in gear, and that all of a' sudden, plaintiff's oar ran into defendant's car near the side-walk. This witness further testifies that when he firs saw plaintiff's car, it was stopped about the center of the neutral ground on the tracks, and that afterwards it moved very slowly, as if someone moved it, for five feet, and that the front wheels got over the tracks, on the street,and that it appeared as if á part of plaintiff's oar was on the last track on the down course of the neutral ground. This witness oontradiots the defendant, in that he says that both cars were moving at the time of the accident, while as a fact, it appears from defendant's own testimony that the oar was at a full stop on the neutral ground, then started uo move a little, and finally stopped, with about vwo feet of the oar extending out into the street. This testimony oannot be reconciled. Witness' testimony to the effeot that-defendant's oar was run iaio- by plaintiff's oar is impossible of belief, when the nature of the damage to the two ears is considered. Had the aooident occurred as this witness for the defense testifies it did, then the defendant's oar would 'have been damaged on the left side, and plaintiff's ear would have had its front'radiator- and bumper in the condition that defendant's oar is shown to have had. It i3 conclusive from the evidence, that plaintiff's oar, and -not defendant’s oar was run .into,- in fact, on cross-examination, counsel for plaintiff forces this witness to admit as follows:

" Q. Mr. Mauro ran into his car?
A. Yes sir, as he earns around lie headed towards the sidewalk and Mr. Mauro's car hit him.
Q. What was the position of Mr. Ludwig's oar after the accident?
A. On St. Charles Avenue.
Q. Whereabouts?
A. On St. Charles Avenue and First Street.
Q. Where about?
A. It was headed towards down town.
Q. Where were the front wheels, in the thoroughfare?
A. It happened in the center of the street.
Q. Where was the back of his car?
A. Facing Third Street, it was not directly up and down St. Charles Avenue.
Q. Where were Ms back wheels, in the street?
A. One was against the curbing.
Q. Which curbing?
A. She curbing of the neutral ground.
Q. How far away were you when you first saw this car?
A. About one block away.
Q. How far away was Mr. Mauro's machine at the time that Mr. Ludwig, as you say, started his machine a second time?
A. When I first saw the car stop it was in the middle of the neutral ground, then I saw it move less than five feet, then it stopped again, by then we were within thirty to thirty-five feet from it, and then I saw again lights making different moves as if to start again, that was when the car was -about the middle- of the street.
Q. How far away were you then?
A. Thirty or thirty-five feet.
4. How fast was Mr. Ludwig going?
A. He had stopped again.
Q. Was he at any time going any faster than three miles?
A. No sir."

Questions asked by the Court of this same witness and his answers thereto show that his testimony is not reliable. The Court asked him the following:

"Q. The Dodge oar was struck?
A. Both struck,
Q. Which oar was hit from the side?
A. None was hit from the side.
Q. The Dodge oar was not hit from the side?
A. Only by a glance blow.
Q. Where was his damage?
A. Right front.
Q. Was his running board hit?
A. No sir, it may have been, I do not know."

From the preponderance of the testimony, which appears to be in favor of plaintiff, we find particularly, that plaintiff was not in any manner at fault, and that the sudden and dangerous position in which he was placed by the accidental choking of his e gine, created a situation of which the defendant in his on-ooming car was fully advised from a distance of more than a block, and that after signal given by plaintiff's horn, which defendant admits to have heard, the last chance of avoiding the accident was clearly with the defendant. The width of the Avenue at the point of the accident, and the position of the fourteen foot Dodge oar after the accident, show that defendant had ample opportunity, by careful driving, and by careful obsérvanos of the signal given to him, to have swerved, and safely cleared plaintiff's ear, which we are convinced, from the evidence in +his record, was not in motion after it first came to a dead stop on the neutral ground.

We are of the opinion that the evidence is clearly with the plaintiff, and that the finding of the Dower Court to this effect should not be disturbed.

JUDGMENT AFFIRMED AT DEFENDANT'S COST IN BOTH COURTS.

May 22, 1922.  