
    No. 6453.
    AUTO REPAIR & GARAGE COMPANY vs. NEW ORLEANS RAILWAY & LIGHT COMPANY.
    Syllabus.
    Involves only issues of fact.
    Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 107,993. Honorable Gr. H. Theard, Judge.
    Stafford & Robinson, for plaintiff and appellant.
    Hall, Monroe & Lemann, for defendant and appellee.
   His Honor, JOHN ST. PAUL,

rendered the opinion and' decree of the Court, as follows:

This case involves only issues of fact. From .a judgment adverse to plaintiff, the latter appeals. The matter is submitted on briefs.

The evidence is somewhat conflicting, but on the whole the facts are about as follows:

A party of three were riding in an automobile, whicii owing to a puncture, had lost a tire.

Whilst attempting to cross the track in front of one of defendant’s cars, the left front wheel of the automobile, from which the tire was missing, caught against the nail, causing the machine to slide along the track in the direction of the approaching car.

For some reason, wholly immaterial and perhaps quite natural under the circumstances, the man at the wheel lost control, and in spite of all his efforts could neither turn out of the track nor back the machine.

On the other hand the motorman of the oncoming car did not perceive at once the real situation; but as soon as he did so he made every effort to stop his car. In this,, however, he was unsuccessful, being then too close; so that the two vehicles slid together and each received some slight damage.

Opinion and decree, December 6th, 1915.

Irrelevant, narrative and argumentative matters eliminated, this is substantially the testimony of LeBlanc, who was operating' the automobile, of Pillsbury, who was with him, and of the motorman. The only conflict between their testimony (more apparent- than real) being whether or not one or the other of the two vehicles had actually come to a full stop at the moment of the collision. There are other witnesses whose testimony is generally to the same effect.

Upon this state of facts it is clear that there is no room to charge the motorman with fault. The emergency arose suddenly and unexpectedly, and as soon as it arose he did all that he could to escape what was then already inevitable.

Another witness, however, (Chambers, the third occupant of the automobile) makes out a better case for plaintiff, to-wit, that the automobile had 'been stalled for some minutes upon the track in full view of the motorman who was then half a block off, but who instead of making any effort to stop, “deliberately” speeded up his car and recklessly ran into the automobile “full blast.”

But the trial Judge evidently pinned no faith to the testimony of this witness, who is contradicted by every other witness and by all the circumstances; and neither do we.

Judgment affirmed.  