
    KIENTZ et al. v. CHARLES DENNERY, Inc.
    No. 18011.
    Court of Appeal of Louisiana. Orleans.
    April 3, 1944.
    Rehearing Denied May 1, 1944.
    Writ of Certiorari Granted June 26, 1944.
    
      St. Clair Adams & Son, and P. A. Bien-venu, all of New Orleans, for plaintiffs and appellees.
    Edward Rightor and W. H. Sellers, both of New Orleans, for defendants and appellants.
   JANVIER, Judge.

This suit results from an intersectional automobile collision at the corner of Car-rollton Avenue and Banks Street at about 6 o’clock in the evening of December 29, 1942. Banks Street has two driveways each 28 feet in width, separated by a neutral ground 8% feet in width. Carrollton Avenue, one of the larger thoroughfares of New Orleans, also has two driveways, each 36 feet wide, separated by a neutral ground 38 feet in width. At this corner there is a. traffic semaphore signal for the purpose of controlling vehicular traffic. Defendant’s truck, driven by its employee, Jones, was on its way in Banks Street towards the business section of New Orleans, and Mr. and Mrs. Kientz were in their Chevrolet automobile going toward Canal Street on Carroll-ton Avenue, he operating the car, and she on the’front seat to his right.

• The truck of defendants had crossed the first roadway of Carrollton Avenue, had passed beyond the neutral ground and had entered the other ■ driveway on its way across, when it was struck on its right side and turned over by the Chevrolet car in which plaintiffs were riding. Mrs. Kientz sustained physical injuries and she seeks to be compensated for her pain and suffering and her loss of earnings while disabled, and Mr. Kientz, as head of the community, asks for judgment for the amount of the medical expenses of Mrs. Kientz.

Petitioners allege that as their car approached the intersection “because of the absence of a traffic signal” Mr. Kientz “did not slacken or reduce his speed” and did not “come to a stop prior to entering said intersection.” They also allege that defendants’ driver, Jones, did not look to see whether any vehicle was approaching from his right on the lower side of Carrollton Avenue, and Mrs. Kientz avers that had he done so he would have realized that their car “was travelling at such a rate of speed as to make it impossible” for her husband to stop it “prior to entering said intersection.” They charge that the failure of Jones to look was negligence which caused, or at least contributed to the cause of the accident.

Defendants admit the occurrence of the collision but deny any negligence on the part of the driver.. They aver that as the truck approached Carrollton Avenue the driver brought it to a stop as the traffic signal showed “red”, and that when the said signal had turned “green”, he, the driver, started the truck at a slow speed and crossed the first roadway, passed the neutral ground of Carrollton Avenue and had entered the other or lower roadway when the said truck was struck by plaintiffs’ Chevrolet which had entered the intersection, in spite of the fact that a “red” or unfavorable light was facing it, and that the said Kientz drove the Chevrolet into the intersection without stopping; that he was not keeping a lookout, and that he was operating the Chevrolet at an excessive speed.

There was judgment below in favor of Mrs. Kientz alone for $150 for her pain and suffering, and defendants have appealed. Mrs. Kientz has answered the appeal praying that the amount awarded her be increased to $300, as originally prayed for.

The record leaves no doubt that the primary cause of the accident was the defective condition of the traffic light. The light bulb which should have shown through the red glass towards Mr. and Mrs. Kientz, had burned out so that although when viewed from the other direction there was a green light, indicating to defendants’ driver that traffic might cross in that direction, there was no red light indicating to Kientz that he should stop.

Kientz says that the amber light was showing towards him when he was about three-quarters of a block away and that it continued to show amber until he reached the crossing, and this led him to believe that the automatic operation of the semaphore had been turned off so that, from all directions, the light would show amber indicating that any vehicle might cross without stopping, but that all vehicles must exercise caution. He must have been mistaken in saying that that light continued on amber because all other witnesses, who looked at the light afterwards, said that it was changing regularly from red to amber to green and vice versa from all directions except that from the one direction from which Kientz was approaching, the red light did not light when it should have done so. In other words that from that side as the light turned from green to amber, and then should have turned to red, the amber light went out entirely and no light at all showed towards Kientz. This is unimportant, however, because there can be no doubt that Kientz was negligent in entering the intersection as he did — whether he was faced with a red. light, — a caution light or no light at all. This fact is conceded by counsel for plaintiffs who say that insofar as the judgment rejects the claim of Mr. Kientz, it is correct.

It is contended, however, that the negligence of Mr. Kientz is not to be imputed to his wife and that, therefore, if the defendants’ driver was also guilty of such fault as had causal connection with the ensuing collision, she, Mrs. Kientz, may recover from defendants as a joint tort feasor in spite of the negligence of her husband. Of course, this is true. Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A.L.R. 148; McLellan v. N. O. & N. E. R. R. Co., 13 La.App. 581, 127 So. 648. Mrs. Kientz then can recover if the negligence of Jones contributed to the accident, unless she, herself was guilty of contributory negligence. This it may be necessary for us to discuss later since defendants charge her with independent negligence in that she failed to warn her husband about the excessive speed or about entering the intersection while the truck was crossing.

It is admitted that when Jones’ truck entered the second or lower roadway of Car-rollton Avenue, he did not look to his right to see if any vehicle was about to enter the intersection from that direction, and, of course, it is apparent that if he had looked he would have seen the approaching Chevrolet. He says that he looked as he entered the first roadway, that he had seen nothing on his left on that first roadway, and had then looked to his right to see if anything was approaching on the second, or more distant roadway and that “there was nothing coming to my right.” He states that he then proceeded across without again looking to his right. He crossed the 36 feet of the first roadway, and the 38 feet of the neutral ground, and the whole of his truck had entered the second roadway when he was struck. During all of this time the light facing him remained green, and, in fact, it was still green when the Chevrolet struck his truck.

It is contended on behalf of plaintiffs that there should be applied here the doctrine which was applied in the case of Thomas v. Roberts, La.App., 144 So. 70, which is to the effect that when a driver is crossing an intersection on a favorable light, he cannot close his eyes to obvious danger and proceed across if by a mere glance, which a person exercising only' ordinary care might make, he would have seen that there was danger from another vehicle crossing in violation of traffic laws. We think that doctrine sound in spite of unfavorable criticism of our former decision. See 7 Tulane Law Review 463 and Long v. White, La.App., 149 So. 133.

The criticisms which have been directed at the views expressed by us in Thomas v. Roberts, supra, result, we think, from a misunderstanding of what we said and of the facts of that case. For instance, in 7 Tulane Law Review, at page 46S, it is suggested that that decision “has the effect of encouraging open violations of traffic ordinances by placing a strict duty upon auto-ists to look for such violators, and by precluding recovery for damages if this duty is not complied with, * * *.”

We note the word “strict” and we note too that no where in that decision did we say or intimate that there is a strict duty of care on the driver who is proceeding on the favorable light. We said merely that he should have exercised “reasonable” care; that “the drivers of both cars to his left saw the truck coming, and the driver of the third car, which was behind his car, also saw the truck * * *” and we said that he should have seen it had he looked, and that under those facts he could not close his eyes, proceed into the intersection and then defend on the ground that he had the right of way.

It must be conceded that the facts of the Thomas case are somewhat different from those shown here, and it is only referred to because it follows the principle which is well established that a right of way or a favorable light does not absolve a driver from his duty to exercise care. In Buckley v. Featherstone Garage, Inc., 11 La.App. 564, 123 So. 446, 450, the Court of Appeal for the Second Circuit, through Judge Odom, then a member of that court, said:

“ * * * In a city where traffic is controlled by the signal light system, neither pedestrians nor vehicles are permitted to enter an intersection on the wrong signal, and to do so is negligence. But the driver of a vehicle who is rightfully in the intersection owes a duty to those who may be negligently therein, and that duty is not only to avoid injuring them when and if their peril is discovered, if he can reasonably do so, but, further, to use due diligence to discover their presence.”

In Holderith et ux. v. Zilbermann et al., 151 So. 670, 673, we said:

“ * * * While it is true that the defendant Vasterling had the right of way under the traffic ordinance, neither the provisions of the traffic ordinance nor the general rules of negligence relieved him of the duty of maintaining an adequate lookout. In other words, the right of way granted by the city traffic ordinance is not an unconditional and absolute right of way. Section 7, article 1, and article 2, Traffic Ordinance’ No. 7490 C.C.S.”

In the Holderith case we quoted from Kerns v. Lewis, 246 Mich. 423, 424, 224 N. W. 647, a statement which we think appropriate here.

“ ‘While the law accords the right of way, it requires, as well, the exercise of at least “horse sense.” The statute does not authorize one, in approaching a highway crossing, to assume that in all events he may proceed without looking, or, if unable to see, without exercising precaution commensurate with reasonable prudence.’ ”

See also Upton v. Bell Cabs, La.App., 154 So. 359, and Capillon v. Lengsfield, La. App., 171 So. 194.

We do not think that that doctrine should be extended beyond the limit at which it was applied in the Thomas case and have so expressed ourselves in Manuel v. Bradford, 166 So. 657, 658, in which we said:

“But this doctrine should be applied only where the danger is open and obvious and where a reasonably prudent person would observe it and avoid it, for ordinarily a driver may assume that other persons will obey the law and will not attempt to cross in violation of a ‘right of way”. In other words a driver situated as was Manuel need not exercise that high degree of care which he should have observed had he not been favored and protected to some extent by the traffic light.”

But we do not think that it is an extension of the doctrine to apply it to the facts here. Rather the contrary, for in the Thomas case there were other vehicles to the left of the driver of the Thomas car which interfered, to some extent, with his view and there might have been some very slight justification for his failing to see the truck which was approaching on the other side of those cars. But here there was not the slightest thing to interfere with the view of Jones and there was no other traffic ahead of him, and there were no pedestrians to require his attention, and, therefore, there was not the slightest justification for his failing to see the Kientz car— the slightest glance would have sufficed and had he seen it he would not have been justified in completely disregarding it unless it was obvious that its driver intended to bring it to a stop.

However, the failure of Jones to look to his right, as we think he should have done under the doctrine discussed, cannot be pointed to as a contributing cause of the accident unless it can be said that if he had looked and had seen the approaching Chevrolet, he would have realized that its driver, Kientz, was not going to stop before entering the intersection. In the Thomas case, the fact that the other vehicle was crossing the neutral ground, on which were situated street-car tracks, and was crossing at “an excessive speed” should have made it apparent to the driver of the Thomas car that the other vehicle could not be stopped but must necessarily continue into the very roadway in which the Thomas vehicle was about to be driven. Therefore, the fault of the driver of the Thomas car in failing to look to his left was a fault without which the accident would not have occurred because had he looked he would have seen, and having seen, would have appreciated the obvious danger of proceeding. Can the same be said here ?

Jones was proceeding on a favorable light. There was no other vehicle which had already entered the intersection and which must, therefore, of necessity, continue, and it is well known that many drivers, while approaching red lights, continue at a fair speed until their vehicles are almost at the intersection and then suddenly bring them to a stop. Unless then, it was obvious that Kientz could not do so, Jones would have been justified in assuming that he would do so since, so far as Jones knew, the light, being favorable to him, was unfavorable to Kientz.

The speed of Kientz and that alone is relied upon by Mrs. Kientz as justifying the conclusion that Jones, had he looked, would have realized that Kientz could not stop before entering the intersection. What is the evidence as to that'speed? In their answer defendants charge that Kientz “was driving at such a fasti and excessive speed that he was thereby prevented from having proper control over -the operation of his car.” And Kientz says that as he reached the intersection his car was running at “around 25 or 30 miles an hour.” Mrs. Kientz has no idea about the speed of the Chevrolet. The most significant testimony on this point is given by DeBenidetto who, testifying on behalf of defendants, says that he realized that there would be a collision as he saw the two vehicles approaching the corner. He was on the sidewalk very near by and he saw both cars. He saw that the light was red and that Kientz should have stopped, but says that as he saw Kientz approach “I was looking for an accident.” We understand this statement to mean that he realized from what he saw that Kientz was not going to stop. It is true that he also said that he wondered which of the vehicles would stop, but he followed this by the statements which we have quoted which obviously mean that as the vehicles approached he realized that since Kientz should stop and was not going to do so, there would be an accident. And if De-Benidetto realized this from what he could see, surely Jones must have realized the same thing had he seen the Chevrolet. Then, too the speed of the Chevrolet is evidenced by the fact that though the heavier vehicle, defendants’ 'truck was going at a: much slower speed, it was turned over on its side by the impact of the lighter Chev-relet — and it was not only turned over but, as it was struck, it was raised up in the rear by the force of the blow. Warren, also a witness for the defendants, says: “The truck seemed to raise up in back and tip over.”

We have done considerable calculating, talcing into' consideration the relative speeds of the two cars, in an effort to determine just how far from the intersection the truck was when its driver should have realized, had he looked, that because of the speed of the Chevrolet, it was no longer within the power of its driver to stop it. And we conclude that when the Chevrolet was still some thirty or forty feet from the crossing, and was going at what seems to have been an excessive speed, it was apparent that its driver did not intend to stop and that then Jones, going at a more moderate speed, was about fifteen or twenty feet from the corner and that he could easily have stopped had he been looking. Although Jones had looked when he first entered Carrollton Avenue, he had not done his full duty in that regard. .He had trav-elled ,mqre than eighty feet between lha time at which he says he looked to the right and the time at which he was struck from that directing—and only from that direction could he have been struck since that was a “one-way” roadway. One second or even a fraction thereof would have been all the time required for such a glance.

Onr views as expressed in Manuel v. Bradford, supra, are not inconsistent with our present view. There, as Manuel was about to enter the intersection on a favorable, light, he saw the other vehicle driven by Bradford some 80 or 90 feet away, and while its speed-was about 30 or 35 miles an hour. We held that he was justified in assuming that Bradford would bring his car to a stop since the light was against Bradford, and since there then remained ample distance within which he could have stopped. We say the same thing here; that had Jones looked he would have been justified in continuing so long as it was not apparent that Kientz either was not looking or did not intend to stop, and we think that the facts here justify the conclusion that had Jones looked, he would have realized that Kientz did not intend to stop and that his speed was such that he could not stop. He cannot he heard to say “I did not look but if I had I would have seen no danger”, unless the facts clearly show that had he looked he would have been justified in going ahead.

We do not think that Mrs. Kientz can be said to have been guilty of contributory negligence. She is not an automobile driver and, therefore, cannot be said to be familiar with speeds or with the distance required to stop automobiles. While the speed of her car was excessive, in view of the fact that it was about to enter an intersection, it cannot be said that that speed was excessive when the car was some 60 or 70 feet away from the intersection, because in that distance it could easily have been brought to a stop. And, therefore, it would not be proper to say that she should have realized that her husband was not going to stop until she got very near to the corner, and we do not think that when she did so there yet remained time for -her to make an effective protest.

When we come to consider the quantum we reach the conclusion that the amount allowed her for her pain and suffering was about the proper amount. She was struck in the stomach and she was bleeding from her inner right thigh, her right knee and her left leg. She was taken to .her mother’s, where she remained in bed for five days. At the time of the trial she stated that the scar on her lower left leg was still visible. She also said: “I had to take diathermy treatment for twenty-five days.”

The other two items claimed, $21.75 for medical expenses for which the husband asserted the claim, and $175 for loss of salary, which Mrs. Kientz herself presented, were properly rejected. The judge a quo was obviously correct when he dismissed the claim of Mrs. Kientz for her loss of earnings, since those earnings formed part of the community of acquets and gains existing between her husband and herself, and claim for them should have been made by the husband as head and master of that community. If he had made the claim, he would not have been successful because his own contributory negligence would have barred recovery. That earnings of the wife, while living with the husband, fall into the community is no longer a debatable question since the Supreme Court of Louisiana in Houghton v. Hall, 177 La. 237, 148 So. 37, 43, considered the effect of Civil Code Arts. 2334 and 2402, as they are affected by Acts 68 of 1902, 170 of 1912 and 186 of 1920, and said that it had “ * * * reached the conclusion that the earnings of the wife, whether she be conducting a separate business or pursuing a separate occupation from her husband, while living with him, under the regime of the community, are community property, * * *. ” The court considered a most thorough and interesting treatise of Dr. Harriet S. Daggett, Professor of Law, Louisiana State University, “The Community Property System of Louisiana with Comparative Studies,” in which the author sought to show that whether the wife be living with her husband or not, the earnings of her separate industry are her separate property, and the Supreme Court also said that The Tulane Law Review, in Vol. 4, No. 2, p. 281, arid Loyola Law Journal, Vol. 11, No. T, p. 28, take the same position, but the court added that it “has reached a different conclusion from that reached by Dr. Daggett and the two law reviews.” The question is also discussed in another article by Dr. Daggett in which she says that:

“The wife’s earnings under rather clear Louisiana statutory language, belong to the wife’s separate estate; but in order to prevent another item of unbalance, the court has declared them community property.” The Oklahoma Community Act, La. Law Review, Vol. 2, No. 4, p. 582.

In view of the clear and unambiguous statement of the Supreme Court, we have no hesitation in saying that the question is no longer an open one. See also Succession of Howell, 177 La. 276, 148 So. 48; Burns v. Rivero, 192 La. 767, 189 So. 129.

The claim asserted by Mr. Kientz for medical expenses was properly disallowed for the same reason, i. e., his own contributory negligence.

For these reasons the judgment appealed from is affirmed at the cost of appellants.

Affirmed.

McCALEB, Judge

(dissenting).

It is my belief that the conclusion that defendant’s driver was guilty of negligence is erroneous because it has the effect of destroying the superior rights granted by the city traffic ordinance to motorists trav-elling over an intersection on a favorable semaphore light by imposing upon them additional burdens which, in my view, are unreasonable.

In truth, the doctrine announced in this case is tantamount to an extension of the rule set forth in Thomas v. Roberts, La. App,. 144 So. 70. That rule has been subjected to vigorous criticism (see 7 Tulane Law Review, pages 463 through 465) and, while I have been and am still of the opinion that it is wholly sound, I think that any extension of that principle is unwarranted for the reason that it would result in encouraging open violations of traffic ordinances by placing an unreasonable duty of watchfulness on motorists travelling on a favorable light signal, as suggested in the Tulane Law Review article above referred to.

As shown by the facts stated in the majority opinion, defendant’s truck was trav-elling on Banks street in the direction of the business section of the city. When it arrived at the intersection of Carrollton Avenue, the driver stopped in obedience to the traffic semaphore light which was then red. Upon the change of the signal light to green, and thus establishing his right to proceed over the intersection of Carrollton Avenue, defendant’s driver looked to his left for traffic on the upper roadway and then to the right for traffic in the lower roadway. Upon observing that both roadways were clear of traffic, the driver proceeded over the crossing at a slow rate of speed (not over fifteen miles per hour), and, after he had successfully cleared the upper roadway and neutral ground and had preempted the lower roadway, his truck was struck on its right side by plaintiff’s car which had come into- the intersection from the lower roadway of Carrollton Avenue on an unfavorable signal.

It is conceded by everyone that Mr. Kientz was guilty of fault and there can be no doubt that his neglect was the proximate and predominating cause of the accident. But, in view of the fact that Mrs. Kientz was a passenger in the automobile, it will not do to dismiss her claim, because of her husband’s negligence, if the driver of defendant’s truck was guilty of any dereliction of duty which had causal connection with the mishap.

The majority find that defendant’s driver was negligent because, although he looked to his right for traffic proceeding in the lower roadway of Carrollton Avenue before he started across the intersection, he did not look again while he was negotiating the crossing. And it is further found that,_ if he had looked, he would have seen the Kientz car and would have realized that it was going so fast that it could not stop at a time when he could have brought the, truck to a stop.

It is conceded by the majority that the result in this case cannot be reached by an application of the doctrine of Thomas v. Roberts. I fully concur in this finding because I understand the holding in the Roberts case to be limited to situations where the motorist, proceeding on a favorable traffic signal, darts into the intersection without first ascertaining that the crossing is clear of all traffic. Hence, that doctrine is obviously inapplicable here because, at the time defendant’s driver entered the Carrollton Avenue intersection, the traffic on that street which had been travelling over the Banks street intersection had already successfully completed the crossing. It also appears that, before the driver went over the roadway, he looked to the left and then to the right and, seeing no traffic in either the upper or the lower roadway of Carrollton Avenue, he proceeded over the crossing. Therefore, there can be no doubt that the driver looked before he started over the intersection. The majority are, however, of the opinion that this was not enough; that he should have looked again for traffic in the lower roadway while he was in the act of passing over the upper roadway or the neutral ground.

I see no reason for placing this additional burden upon the truck driver. He had the favorable signal; he had looked and, in my view, he was entitled to assume that vehicles on Carrollton Avenue, approaching the intersection from either roadway, would obey the law and yield the right of way which the traffic semaphore had given him.

Moreover, when the majority conclude that the truck driver should have glanced again to his right while he was in the act of crossing the roadway, it is interesting to determine at what point in the roadway the driver was required to perform this additional duty. I suppose the answer is that he should have looked at a time and place where his observation could have effected an avoidance of contact with the Kientz car — that is at a time and place prior to his preemption of the lower roadway. On this point the majority, by their own admission, indulge in considerable calculations. It is stated that, since the upper roadway is twenty-eight feet in width and the neutral ground is thirty-eight feet, the truck driver had a clear and unobstructed view of traffic proceeding on the lower roadway of Carrollton Avenue for over 75 feet, if he had glanced again towards his right. Then, by calculating that plaintiff’s car was probably travelling twice as fast as the truck, the opinion goes on to state that, if the driver had looked to his right when he was fifteen or twenty feet from the entrance of the lower roadway, he would have seen the plaintiffs’ car some thirty or forty feet from the entrance of the intersection; that, if he had seen it, he would have observed that it was travelling at such a speed (25 or 30 miles per hour) that it could not stop and that, at the slow speed at which he was travelling, he could have stopped within fifteen or twenty feet and thus avoided the accident. This conclusion, in my opinion, is predicated on pure conjecture.

Assuming that defendant’s driver had the duty of looking again into the lower roadway of Carrollton Avenue before he preempted it (to which I am unable to agree) and that, at the time he should have looked, plaintiff’s car was thirty or forty feet from the intersection travelling at twenty-five or thirty miles an hour, how can it be fairly said that, if he had observed plaintiff’s car travelling at that speed, he would have been bound to believe that the car was not going to stop in obedience to the unfavorable traffic signal which defendant’s driver had valid reason to believe was facing Mr. Kientz? Surely, if the majority believe that the truck driver could have stopped within the 15 or 20 feet allotted to him, why would not he have just cause to believe that Kientz would stop within 30 or 40 feet at a speed twice as fast as the truck? And, even though the truck driver would have been otherwise impressed, who can say that his mental processes would have reacted so quickly that he could have brought his truck to a stop within fifteen or twenty feet? The majority admit that the duty which it has imposed upon the truck driver was a slight one, in fact, merely a momentary glance towards his right. Yet, it is found that, by the performance of that duty, he would have immediately reacted to the speed of plaintiff’s car and was in a position to stop his car before it preempted the lower roadway.

The speculations indulged in by the majority result, in my opinion, from a strained conception of the duty imposed upon a motorist negotiating a crossing on a favorable traffic signal. I fully agree that such motorist cannot, in the face of imminent danger, rely upon the right of way accorded him by law. But it should be borne in mind that the presence of a favorable traffic semaphore instills in a motorist a sense of security; indeed, a feeling not only that he is entitled to proceed but that his right to do so will 'be respected by others. And, except in cases of flagrant lack of observation, the courts should be cautious not to hold motorists, so situated, to a rigid account for their failure to observe and thereby grant protection to the negligent driver, who crosses an intersection in violation of law, or to accord to his passengers a right of redress where his fault is the predominating and, albeit, the proximate cause of the accident.

We are living in an advanced stage of the motor age. Heavy and congested vehicular traffic on the streets and highways is a daily rule rather than an exception. In these circumstances, it is vital to the public interest that the traffic rules and regulations be adhered to strictly (particularly with reference to the traffic semaphore system) as the motorist is, to a large extent, compelled to operate his car in the belief that the law will be obeyed by others. Hence, in gauging the fault which is attributed to one, who was operating his car in obedience to positive law, the courts should be convinced that the dereliction was most substantial and that it was such a direct factor that, without it, the accident would not have occurred.

I have read all of the cases cited in the majority opinion and find nothing in them which I believe to be in conflict with the views herein expressed. Indeed, the case of Manuel v. Bradford, La.App., 166 So. 657, which the majority opinion attempts to distinguish from the instant matter, is not only strikingly- similar but the facts therein are stronger in favor of a conclusion of negligence on the part of the motorist crossing on a favorable signal than those presented here. In that matter, the plaintiff was travelling on Carrollton Avenue in the direction of City Park. Upon reaching the intersection of Canal street and finding a favorable traffic signal, he proceeded over the riverside roadway and, while so doing, he was struck by defendant’s car which was being driven down Canal street at a speed of thirty to thirty-five miles per hour and which had proceeded over the Carrollton Avenue intersection on a red, or unfavorable, light. The question presented was whether plaintiff was guilty of contributory negligence because, in spite of the favorable signal facing him, he proceeded over the crossing after he had observed defendant’s car travelling into the intersection on the unfavorable signal at the above stated speed. It was there argued that plaintiff was at fault for two reasons, (1) that he should have realized that defendant would not yield the right of way to him in view of the excessive speed of his car and (2) that this fact was all the more apparent to him because defendant had already crossed the upper roadway of Carrollton Avenue on a red light. Despite these contentions we held that, because plaintiff testified that he believed the defendant would obey the law and stop in order to accord to him the right of way, the plea of contributory negligence could not prevail.

The distinction attempted to be made by the majority between Manuel v. Bradford and this case seems to be that, in the former, Manuel saw the Bradford car and testified that he believed that it would and could stop, whereas here, defendant’s driver did not see plaintiff’s car and that, if he had seen it, he would not have been justified in assuming that it would stop. Frankly, I cannot discern the difference. The evidence in this case shows that plaintiff’s car was not travelling at a speed in excess of twenty-five or thirty^ miles an hour. Therefore, if defendant’s driver had seen it, at the time the majority believe he should have seen it, why wouldn’t he have been entitled to assume that it would stop and yield to him the right of way ? In the cited case, we held that Manuel was entitled to assume that the Bradford car would stop, notwithstanding its speed of thirty to thirty-five miles an hour and despite the fact that Bradford had already crossed the upper roadway of Carrollton Avenue on a red light.

There is one other thing that I think should be mentioned with respect to the view of the majority. It will be noted that the opinion states that defendant’s driver had the duty of looking for traffic in the lower Carrollton Avenue roadway at the time he was proceeding over the upper roadway into the neutral ground. Yet, the conclusion that the truck driver would have been able to avoid the accident, if he had seen plaintiff’s car, is based on calculations of what he could have done if he had seen it at a time when he was fifteen or twenty feet from the entrance of the lower roadway of Carrollton Avenue and plaintiff’s car was thirty or forty feet distant. However, if, as found by the majority, defendant’s driver had the duty of looking to his-right at the time he was negotiating the crossing, it is probable that he would have seen the Kientz car while he was going over the upper Carrollton Avenue roadway or a distance of forty to fifty feet from the neutral ground entrance to the lower roadway. Therefore, the Kientz car, travelling at twice the speed of the truck, would have been eighty to one hundred feet from the entrance of the lower roadway. In such circumstances, could it be fairly said that defendant’s driver would not have been entitled to assume that plaintiffs’ car approaching the intersection at a speed of twenty-five to thirty miles per hour would obey the law and yield the right of way to him? I think not.

For the foregoing reasons, I respectfully dissent.  