
    CHARLES DENNERY,Appellant Vs. Rene Solomon
    No.8514
    November 13th 1922
    CHARLES F.CLAIBORNE,Judge
   CHARLES F.CLAIBORNE,Judge.

The defendant .driving an automobile,ran into a tesan ' J of mules' driven by plaintiffs chauffeur and killed one of them; henos this suit.

The plaintiff alleges that on November 16th 1920 at about half past five oolook P.H. while his ohauffeur was driving a large spring wagon drawn by a double team of mules on Polymnia Street crossing St.Charles Avenue,the defendant,operating a Sedan automobile,ran into the mules and so injured oné of them that it died;that his ohauffeur had orossed the neutral ground of St.Charles Avenue going towards the river and had already reaohed the pavement side of the Avenue towards the river when the mules were struck by* defendants automobile; that said accident was oaused by the defendant not stopping or controlling his automobile coming down St.Charles Avenue ^ as he should have done,after petitioners driver had already crossed the neutral ground and was in the'street going towards the river,and therefore had the right of way,and had defendant stopped or controlled his oar,said aooident would not have happenad;XXX that petitioners driver did everything.'he,could to avoid the accident,nhd was without any fault,but said accident was due solely to the reokless and careless driving of-said defendant,and to his failure to control hlB said oar on¿the avenue,and give, petitioners driver the right of way-,as he should have -done;and plaintiff claims $426 as the value of the mules and $31.50 expenses.

Defendant denied all the-allegations of fact in said-petition contained and averred that the aooident was caused solely by plaintiff's fault.

The learned Judge of the Distriot Court rendered Judgment in favor of the defendant aooompanied by lengthy written reasons.

The plaintiff had appealed.

There is not much conflict in the testimony/only three witnesses testified.The plaintiff’s driver,and another witness for him,and the defendant.

The accident ocourred at about half past five on the evening of November the 15th; it was raining and dark,the pavement was wet and slippery;the street lamps were burning ^ and the lights in the street cars^ also,the lights on the automobile were burning;on plaintiffSwagon there wave one light, on the left or downtown Bide;the plaintiff's wagon was open, no top to it^nor oover,and the driver's seat was high;he was seated on the seat,and he could see all around;the defendant's oar was a closed sedan,weighing about 2200 pounds ; the plaintiff crossed the neutral ground at a walk; the defendant was driving,according to the plaintiff,20 or 25 miles an hour,and according to the defendant 16 miles;when the’ plaintiff's mules reached the» middle of the street nearest the river,the right hand mule was struck on the shoulder by the defendant's oar and the left hand mule injured;.defendant's oar continued in its course lffrto 15 feet when it ran into an iron post and broke it into three pieces;when the plaintiff's drive^ffirst saw the automobile he was"coming off the neutral ground"the wagon had already struck the pavement;wnen the defendant Saé first saw the plaintiff's wagon it was 30 or 40 feet away" coming across the neutral ground the defendant struck the mules While they were in the middle of the street;he struok the shoulder of the right-hand mule. j _ ,

The plaintiff's efcaseWeur testified that he first saw the defendant's automobile"Just as I were crossing down the neutral ground"and at that* time the automobile was"about three // quarters of a block away.

The law of this case is contained in artlole I seotion 8 of traffic ordinance Ho.5181 adopted by the commission council on August 6th 1918 which reads as follows ;

"2-"Right of way ! Vehioles traveling on the following A' ■streets have the right of way over vehioles approaching on intersecting streets,namely;St.Charles Avenue^a'Si'alBo all other streets with street oar traoks.All other streets and at intersections of above streets and avenues,all vehioles shall have right of way over other vehioles approaching on intersecting streets from the left^ar$ shall give right of way ' / to those approaching from the right «¡The error of the plaintiff is in believing that he had the right of way,on the contrary according to the ordinance^

¿defendant clearly had the right of way,for two reasons 2 . f 1st. Because he was traveling on St. harles Avenue, and Snd Because plaintiff's wagon was approaching him from the left and it was plaintiff's duty to give him the right of way to the defendant who was appraoching him from the right.

The right of way means that when two vehicles are approaching a common point where they will meet,one must yield to the other and give way,and ^if necessary^stop^in accordance with traffio ordinances on the subject/in case of a collision the one which violates the ordinance must pay for the resulting damages,as we have often decided,unles the other by reasonable diligence could have avoided the collision.

In crossing the street as he did the plaintiff violated both provisions of the ordinanoe.lt was his duty before he passed the neutral ground,to have stopped and allowed the auto to pass.

The auto with its twin head lights,glaring in the darkness of night,was in full view of the driver of the wagon, and we must assume that he am It,or could have seen it,if he had looked.In trying to cross,ahead of the auto he took the chance of failing to do so,and he failed.He thUB suddenly put himself across the path of the auto.Inasmuch as the auto had the rigiht of wai^it was the wagon's duty to have yielded It and to have stopped.The driver is certainly mistaken when he states the distance the auto was from him when he first sa<rt It.He says that' he first saw the autol'when he was coming down the neutral ground^ and that he it was then three quarters of a block sway from himjwe will say 225-feet.If that had been true,he would have been justified m crossing and the auto would never have struok him,because he would^orossed the street, about twenty feet wide,long before the auto would have reached him.But he was mistaken,and the best proof that he was,is that the auto struok him,and struck the forepart of the mule.The distance from the edge of the neutral ground a? the middle of the street,the point where his mules were struck^could not have exceeded fifteen feet.As the muies were walking.we will assume- that their sf&as was five miles an hour.In order that the ,auto^225 feet distant^ should have reached the point of contact at the same time as the wagon,it would have been necessary that it should have been running fifteen times faster then the mules^or 75 miles an hour^ which is impossible.Besides, * the driver himself testifies that the auto was naming 20 or 25 miles an hour,which is reasonable.The truth seems to us to be that according to the above figures the auto must have been^iot more than 75 feet from the wagon when the latter began to cross.If the plaintiff had stppped on the neutral ground^ as he should have done,the accident would not have happened, and there is no .evidenoe that the defendant could have avoided ■it by the use of reasonable diligence.The plaintiff had a light on his wagón but it was on the left.

Judgment affirmed.

November 13th 1922,  