
    NO. 8945
    COURT OF APPEAL PARISH OF ORLEANS
    
      
    
    JACOB FALLO versus NEW ORLEANS RAILWAY & LIGHT CO.
   Dinkelspiel; J

ibis is a damage suit.

Plaintiff avers that on the 21st of Ksrch, 1923 at ten fifteen P. M., his automobile, in which he was riding, w«s'run into ana demolished at the corner of Broad and Onzago Streets, by a St, Bernard street oar, Ho. 300, owned, operated, and controled by the defendant oompany. Averring further tjat plaintiff was going down Board Street in his automobile and had stopped his automobile on the riverside of Board Street nearest to' the curbing a- the corner of Bro;-d and Onzaga Streets, to permit a passenger to alight, and after the passenger had alighted, plaintiff looked to see if there was any street c‘ar coming in either direction, saw a street c;r coming down Broad Street a block and a half away coming downtown, and he turned his -car to the left ana proceeded to arose Broad Street., but so rapidly wps the defendant's oar travelling thet before he could get over the crossing the oar struck his automobile, demolishing same and injured him. Thet defendant's oer was, travelling at an excessive rate of speed in violation or lew, particularly city Ordinance No. 786, Seo. 20, and that asid street oar was travelling at & rete of thirty five miles an hour and after the imps-ct proceeded at leist one hundred and fifty feet before it came to a stop. Thet the motormsn m>'us no effort to check or stop the oar until he >»cs right on top of petitioner, and so-terribl^ wes the blow end impact that the automobile was ikExwnxKam thrown completely around end pushed all the way across the tracks, whilst the car continued on its way for a distance 6f one hundred and fifty feet before it came to a stop. Plaintiff avers that his oar was damaged (describing the damages) in the sum of $150.00, and that he suffered severs and painful injuries, Saxxwhiakx one of his right ribs was broken, his left arm severely bruised, str-iined and twisted, and he suffered a severe nervous shook from which ho h' 3 ret yet recovered, and therefore should recover $1500.00 for his broken rib; $100.0.00 for the injuries to his left arm and $1000.00 for the nervous shook he suffered.

He further averred that the defendant company was in the hands Of the Ksxxx Receiver and that the Union Indemnity Company vas surety for defendant company in the sum of $3650.00 .and he cites and makes said company a party! to this suit, and claims judgment against both defendants for $3650.00, with legal interest from judicial demand, for coste and for general relief. Annexed to his petition is the bond of the Union Indemnity Company.

The defendant, the Railway Company answers substantially with a general denial, admits the furnishing of the bond in question and the amount thereof, and from, information received admits that on the date as set forth in plaintiff’s petition, plaintiff driving an automobile down Board Street reaching Onzaga Street turned directly in front of oar Ho. 300, of the Board Street line, which was then about to crocs over On-zaga Street; averring further that the dsfcsKds driver of said automobile should have known that it was dangerous to go upon the track under the conditions then, existing, and the accident and resulting damage was due to his careless, negligent and imprudent conduot in attempting to cross Broad Street when and as he did. therefore it prays for judgment in its favo#.

The Union Indemnity Company virtually adopts the answer of the defendant, the railway company, and prays that the suit as against it be dismissed.

The ordinance in question wes offered fn evidence.

Mrs. E. Castaing testifies substantially that she lives at 2540 Onzaga Street and that she was a passenger in plaintiff’s car the evening of the accident, he.d been out on a ride with him, she testifies that she was standing on the very corner xkemxahs where she had alighted from the car; the car had come from uptown and was going up Bread Street towards downtown, the oar stopped on Broad Street and Onzags and it came to a full stop* she got out at che curbing on the right h«dd side, after she had alighted-from the oar plaintiff asked her to look down the roed, whioh She did and she reported that the rOad was clear and that plaintiff could go ahead', plaintiff had to cross Broad Street to the other side and when she saw the street oar it vr,s a. block distant and was going at a terrific rate, so fast that you could not see it on the treok, could pot even hear it; after striking plaintiff, the oar went fully one hundred and fifty feet, there was no noise or warning given by the car, she heard no bell ring, there was no one in the auto after she had left it except the plaintiff, after the street car hit the automobile the automobile was between the uptown track' and the downstown track in the neutral ground.

On cross examination she testifies, "I was standing right at the corner, 'more towaras the uptown side, because he nev-er. stopped his automobile at the very curbing but a little further down, right by the tree; aiam*ix*it the automobile when--it., stopped was.--it was .about three feet from Onzaga Street, ■che auto, stood still, plaintiff out. off the power and and remained at this place for five minutes.. Witness further testifies 'that' plaintiff asked her to look and see if the road was olear and she answered perfectly clear go ahead. Sher further testifies, sha looked--both ways, up and down,, nothing was m sight withi» a block away, it was about a quarter past ten at •night, - the. street lights were burning and burning very clear,' Qhe testifies further that she continued to watch the street Car c.oming.-down-and it came at suoh speed that she had hardly time to look up when she'saw the oar had struck plaintiff, and she was- the first one to ruii to nim*

You Say the back -wheel must have been there, 1 did not ask you what must have been, but what you saw. A, X- am. telling you I was so bewildered X can’t tell you just- What happened. at the moment when he was struck. I don't knew whether it was the front vheel on the trvck or whether it .'.as not. He ’.vas just shout to cross when the c -r struck him.
Q, Then he had just gotten on the track when tae c^r struck him? A. Ho must have been.
Q. You were .looking at him? A. Y?s,

The next witness w.a the plaintiff, who after stating th'-t the auto in cuestión «as his property and ..here h3 had been that evening, and that ::e came from the direction of Canal Street &r.d-s->..e turning the corner cx Onzaga in order to 1st his passenger alight, he called to lira. Casteing after she had alighted xrem the csr and asked her if everything was clear and she said yea, she wrs then standing in company rfith her son, witness looked himself and it looked to him as if the o'-r was on the other side of the corner over a "clock off j he then testifies the car slowly sp-’-eded along and drove his oar to go right across, he thst peculiar effect you will hear emc on a break, and saw no more, he w-s hit. He testifies there was no bell rang, th't there ¡vas no noise only the screech of the brake, as if putting it cn the second' time; the car wes in the middle of the block b'fcre it struck him, the oar struck the middle of the auto.

Q. How much longer would it have been before you would have been clssrk of the track?
A. I would imagine, I can't say what time it would be, bun I figured I had lots of room, lots of time,- lots of clearance,

I can't imsgine where che man cerne from. And the Ford is a ^uick pick-up car; it is not a dreg, it goes right along.

He further testifies that he looked over.his left shoulder and saw the csr at least a. block away before he started to cross, and in order to reach the rail, he-was about five feet down near that curbing, towards the corner, the width of the street to the curbing is two or three £eet from the car traok and he started, to cross

In describing bis injuries be says tbst be could not get bis breath, could not understand what tb&t was, I said'I wasn't burt, and this ledy said, You must be, because you can't talk. He called on Dr. MoGuire a few days later and be made him go to'the Chai'lty Hospital to have an x-ray taken of the rib, end be worked on me for a broken rib; be suffered much --pain, he also suffered from the injury of bis arm, but the doctor told him that bis arm was not- broken. He testified th:-t it cost him ¡$150,00 to fix up his auto. On cross exam in's t ion be was asked:

Q. You turned on Broad street from there? A, I turned off-
Q'. I mean before the accident, where bad you turned on to Broad Streetí- A. I don't remember exactly. I was trying to think what house we went to.' axXxxxxtxsslxiss
Q, You don't remember where you turned on Broad Street? A, Ho sir. üíbetbsr on Esplanade, or whether we came cut TJrsuline or Dumaine, I don't remember what way we turned in.
Q. When you got to the edge of the curbing, or in line with that curbing on the nedtral ground, did you look again to see where the street oar'wss,- if it vías coming? A. Ho.
Q. Tihy? A. When I did.look the nar was on the other side of tie 'square, and I didn't'think it could-coma that, quick.
Q, And you -didn't listen, to sec- if any oar- might he there— whether it might here crept up on you? A. I didn't hesr any noise coming, until in'a seoond- I heard like putting the tosáis brakes on in a tight pinch, bn'.the ¿second tuin.
Q. -Vihene* was your automobile then? A', - it'struck me then. I. don''t-knowl.whet happened then;'I fell-down, in -the oar,
Q, There must hare .been some space".of -time from the time you heard. thts: brake movement, or. heaftd the no lee'from .the putting on of. the-brakes, tofthe time'you were hit;- There must hare been-a-.'fra'otiori of time?' • A. Thvt could hare been.'the' snapping of' yóu^. 'fingers.
Q, You had time to sense that the oar was on you, didn’t you?
A. When I heard that peculiar noise.
Q, Your oar had not been hit at that time? A, Ho, sir,
Q. Did you see the street oar then? A, X heard the noise,
When I saw the oar it had already hit me.
Q. When you sew the car, as you say a block away, did you know how it was moving? Was it moving fast., or slow?
A, I can't say that, because I didn't turn around to look at it any more. I ventured across,
Q. Vfhy didn't you look just before you got on the track! why didn’t you look again, to see if it was -coming? A, X felt like I had good clearance. There was something radically wrong, that he caught me that quick.»
Q. I am charging, in my answer, that there was something wrong with the operation of your automobile! that you didn't look before going on? A. Well, and I had her to tell me it was all right. I thought that was good assurance.

Joseph Castaing, the next jiííebrs* witness, is the son of the lady who was a passenger in the oar, and was waiting for hds mother the night of March 21st, and was standing oppoait the street oar when it hit the automobile at the oomeh of Broad & Onzaga Street*; he testifies that the street oar was fully a block and a half away before plaintiff started his auto, the car was ooming towards St. Bernard Avenue, and he stated plaintiff started to go across, he heard plaintiff ask whether everything was clear before he started, he,the witness-, answered go ahead Mr, Fallo, it is alright., and his mother said the same thing. Witness did not hear any warning, no bell rang, if there had been one he certainly would have heard it, he identifies the phaisi photo annexed to the record and offered in sxxst evidence, as the correct position of the auto*

The first witness in behalf of the defendant was a Mr, Filie, he was sixty four years of age and employed as n collegt- or for different societies. On the night in question he was £5 a passenger on the street oar.

He was ashed:

Q. We are investigating an accident that occurred on the 21st of March, 1923, at Onzaga and Broad Streets, sometime about a quarter pest ten in the evening, where a oar on Broad Street and an automobile tried to cross the street at the same time .and had an accident. Were you there at the time?
A. Yes, sir. I was on the thirds third seat of the car, of the street oar. There was nobody in front of me to mask the view,

1 was on the right side of the oar., river side of Broad Street, the oar was going in the direction downtown, towards St. Bernard. Witness testifies that the oar that was hit tried to cross the Btreet right in front of the street oar.

Q. How fsr was the cer away -from Onzaga Street at the- time the Ford started across? A. About ten or fifteen feet from the corner.

Witness further testifies that the street oar was going possibly about ten or fifteen miles, that the .gong, was sounded on approaching Onzaga Street, he testifies that the mo torrean tried to put the brake on the oar, oouldn't do it, couldn't stop the err, but. after the colllssion the oar stopped about fifty, feet from the other side of Onzaga Street.

Q. I am talking about after the accident, now, was the Ford on the left-hand side of the downtown track, or Oft the right-hand side of the down-bound track? a* On the left.
G. It was on the space between the up and the down tracks?
A. Yes, Sir.
0. And the street car, the rear end of it, w.ss about fifty feet from Onzaga? A. About.

This witness on his cross examination, did not in any manner alter or change his statements of his examination in chief, and on his reexamination by defendant's counsel!

Q. What I wa.nt to get particularly, if you pan give it to me¿ is this, when you saw this automobile.' turn as if to go across the street car tracks, how close was it to the street car track when the motorman rang his gong, how much space was there between the head of the automobile spad the street cart A.

About half a block before the crossing of Onzaga.

Q. I don't mean when he rang the bell the first time, there, hut when the man started to turn to go across the street, did ■the motoraan ring his gong again?
A. Yes e'ir.
Qi How mush distance wee. there then from the automobile to the street oar .track, when he rang the bell again? A. About tea feet..
Q. X don't mean how far the street oar was from that place., but how far sas the automobile from the car-track? A, The automobile tried to pass before the car, when the car was at the corner, tried to areas to the other side of the street.
Q, Well, what I want is this: you said you heard the motorman sound his gong and he tried to stop the oar. How close waa the as-automobile to the oar track at that time? A. He waa on the car trackj when the car o.ame to the corner. He tried to cross the track. When the oar reached the corner he was on the track.
Q> 'When you saw him did you see him in motion, the automobile? Hid yon see him moving? A, Ho.
Q. You didn't see the automobile moving? A„ Oh, moving, yes, sir.
moling Q* How close was he to the osr track when you first saw him/erstag towards the oar track? A, A few feet about 4 or 5 feet*

The next witness was J. H. Damon, who has been connected with the street oars for about fourteen years, bote in Algiers and Hew Orleans; witness testifies that he wa3 the motorman of the street oar on the 31st of -March 1933.

0,. An accident occurred at Onzaga and Broad Streets, on liaxoh 31, 1.933, about a quarter past ten, were you the motorman of a oar which had such an accident? A. Yes,
Q,. Do. you. remember bow you were running, on approaching Onzaga Street® A. Running .on full speed; At the. rate of eighteen miles an hour,
Q. Where was1 your street oar when, you first-saw the -automobile coming towards your track? A, When’1 first noticed-the ^.uto^' mobile, X was. in the middle-of ’ the square before you .’get- to ;Onza~-ga Street. The automobile was going in the same direction-I was going, going down Besad street.
Q. And how dose. to Onzaga was the'Automobile?-A. I not iced. him/, about the middle of the-block,, first, I suppose, X was going-down! He was going' in’the same direction-.’ %en I got about twenty feet from the' crossing of -Onzaga Street the automobile, shot -Across ’in. fronx of the-ear.and hit the render on the left hand pitte,’.hatch! ing his hind wheel,- turning the oar" around" thifc .way,- turned the; head or his o ar.uptown, .on the left hand side or the'track.
;Q. 'Your caí -stopped -after the•• accident? .4.-Tes/; sir. ' J.stopped in a - distance, of’about 125 fee-f.
(J. When'you saw him-, turn to go.-across zaga Street, were you? A.'About-twenty feet..'
Q, .Jftafr: did/ymt: ho? 'A. --I-. sounded- my -gong-'-and; 'refereed my: car /-right' of ff also used the brake.-
Q; -Could you. stop-the,o ar any-.-quiouef - -’than-- you. did? /.AV Ho sir/' impossible-, .at the speed. I was going!
Q. How close- was the, automobile to "the’’street- car track’.when yOu sounded your gong? 4,. I -notiéed -the automobile .running- in'f-r.ont’ of me. When I- saw hi»,- he;took -the sheer-to. cross the street;.to?;™ ards the woods, and-1 struck my gong immediately ¿na grabbed''mjy-brake. X had hold of the brake and oheoke’d-'-my -oar right' quick'.,
Q-. Tou didn't get the .-’question..- I' .aakedhowf&r was'the ..auto-, mobile from the street car track when you sounded youi„ gong?
A. .1 should judge he was about-twenty some odd feet/ at-thO most. That is how I noticed him xo cross, thf.t -is why.-X sounded my gong»

The next witness in behalf of the defendant was Philip Eotrugllo; this witness was a conduct or for the street oar company at the time of- the accident and had been suoh for about five years ;at the time Of-the accident'he was on. the rear-end of the oar, heard the crash, his oar was stopped after the.accident and he went- out to find out what was the oause of it, the street car ran about twenty five or thirty feet, the automobile was on the nettral ground between the .up and down tracts,

Onooross examination:

Q. How fast was th?t street car going that night? A.. Well .the ■motorman'had it on full speed, 9 points.

My idea is that, this car oould not go over eighteen miles an hour. Witness describes the jolt of the oar when it hit the automobile, .and that was the first he knew of the occurrence* He testifies on reexamination that a gong was sounded.

Q. How Mr. Woodville asked you something about the motion-of the car, if the crash was the first thing that you felt. I understood you to s.ay something about yes, and at the same time .the .ao.torman put on the- brake. How did you feel that, how did that come, the brake first and then the crash, or how? a. F.elt the aotormSn jamming his'brake, and then hitting just as he was doing $ nut ►

a passenger in the-’oar The Other witness, Mr. Blftom, who was/wksal at the time of the accident, was ci asleep and the crash awake him, knows nothing of the cause of the accident in question.

The testimony of Kami, taken by consent outside of Court gives very little -information one way or the other on the subject*

Considering the testimony pro and con, which is as usual in case? of this character, muoh at variance and at times contradictory, we are of the .Opinion; that the- plaintiff in this oase, whilst conversing with Mrs. Castaing after she had alighted from the car, drove his car on being iiirausxáifcyxihaxaxMiiíijmsjt informed by this witness, and possibly h r- son that there was nothing in sight and that the ooast was olear, ne drove his auto in the same, direction in which the street oar was coming, and whether he did so prudently or not, it was his duty bpfore attempting to cross the track to look and listen to determine whether that' attempt should he made or not. This he did not do until .it' was too late, and it has heen frequently held hy this Court and by the Supreme -Court of this Statej that one, before pax crossing the street oar track must at his peril, look and listen, and if he fails in this he cannot recover damages for any injury which toe may sustain»

The case of St&cx Snider vs. N. O. & Carrollton Railway Co, 48 An. p. 1, is to this effect.

In the case of Heebe vs. N. C. & C. R. L. & P. Co. 110, La. 970, the Court held:

"The recognised rule is that, before attempting t0 cross a railroad track, a persons hould stop, look and listen, and it wtll hardly, do to substitute fór 4t a rule to the effect that, being at a distance from a crossing, towards which he and an electric or eteam bar are traveling, he may then form .an opinion as to which of the two will get there first, and, acting upon that opinion, assay the crossing without giving himself .further concern upon the subject."

The same doctrine is announced in Durbose vs. N. C. Ry. & Lt. Co, 123 La. 1029, and in MaShane vs. N. C. Ry. & Lt. Co., 137 La. p. 830 the Supreme Court saye;

"One who attempts to drive a wagon- across a street railway track- in front of an approaching street car that could and .should, with reasonable csre be seen and heard approaching^ is guilty of negligence, and is no.t entitled to damages for injuries received from a oolliasion with the. stress oar,11

And in the 141st La. p. 1101, Tucker vs. I. C. R. R. the. court held:

"Ho failure cn the pert of the railroad company 'to do its duty will excurs anyone from using the senses of sight And. and Rearing upon approaching a railway crossing; and whenever the due use óf mthur sense -would hive enabled the injured person to escape the dtaKga: danger, the injury is conclusive evidence of-negligence, without any reference to ths railroad's fíilúre to-perform its duty." ■

Citing numerous authorities.

And in Leopold vs. T. & P. R. R. Co., 144 La. 1000, the court denied a recovery to plaintiff who vft.3 in an automobile driven by his son, and had almost crossed the tr- ok when 'it «ye.- struck;, the Court held, that though ths. engineer failed to 'cund boll or whistle and did net see the automobile until it wse struck, yrt plaintiff could and should have seen the train before going upon the tr'ck, and not locking cut for it 'was negligence, barring recovery.

The same doctrine ,vus applied in Mchren vs. N. O. Ry. & L. Co. 147 La. 345, wherein the driver of a brewery vftgon, injured in a collission with a street car at the corner of Chippewa and fourth Streets, was denied recovery, ths court holding:

"He' either did not look up,the street at the foot crossing, or, seeing the car coming at a swift rate, ho miscalculated the distance, or the time in vihich it would te.ke 'him to cross the track in safety. In thus acting he neglected to do his duty; and, though ths meterman may .also have been at fault, the injury must remain where it h«s fallen, as the fault of the plaintiff was the proxinr.te oause of ths injury to him.'"

From the foregoing authorities, and others, we are of the opinion, that plaintiff in attempting to.cross the trick as he did, whether he looked and saw the ccr coming at a rapid rate of speed or not, undoubtedly took the.chance, and unfortunately was caught in the accident, which caused the injuries to hiraself and damage to his automobile, and for which the defendant oannot under the circumstances be hold ^responsible.

April 30th, 1923.

For the reasons assigned, it is ordered, adjud decreed, thet the judgment of the Court ¿-quo bo annulled vsrssd and- set aside, and th?t there nor- be jttdg.-.-snt in defendants, costs of both Courts tc bo pi-id by pi:., iitiff ¡red and » re~ f-ivor of

-Judgment reversed and rsn-dored-  