
    NO. 8816
    COURT OF APPEAL PARISH OF ORLEANS
    MILTON SHIELDS versus ROCCA TRAMONTANA
    
      
    
   Dinkelspiel; J

Plaintiff alleges that on the 16th day of «Tune 1931, his horse and buggy was proceeding along the right side of the gravel road from Raoeland iwaiias Junction to Bayou LaFourohe, when without warning, a large motor truok driven by defendant at a high rate of speed passed too cross to plaintiff's said horse and buggy, the right side of the body of said truok which protruded over the side striking said horse behind the left foreshoulder, cutting a deep gash, from the effects of whioh she died two days later; and alleging that defendant was entirely at fault for said accident because he was passing too close to plaintiff's horse and buggy, was driving at a too high rats of spga&Kx speed when passing, he did not give seasonable warning of his intention to pass, and finally in not stopping the truck before the horse was hit; claiming damages in the sum of Í196.80.

Defendant exoepted to plaintiff's petition because it was too vague and indefinite, and further beoeuse it disclosed no cause or right of action, and if these exceptions were overruled, after denying various allegations made in plaintiff's petition answered further that on the data of the accident, defendant was driving,his motor truok on the Raoe-land Road to Bayou LaFourohe, and that in so driving defendant drove his truok past the horse and buggy some distance on the side, the horse harrnessed to the buggy turned and ran into defendant's truok, that the driver of the horse drove his horse carelessly and did not watch the road and the horse he was driving, if he had done this he could have Kxxtdsd checked and stopped his horse before it ran into defendant's truck, therefore whatever injuries plaintiff sustained were .caused by the want of care and skill of the driver of the horse end buggy,

The witness ^^^'testiw2d substantially that he was the driver of the horse and buggy in question, that he was on the edge of the road going to Matthews and the truck was earning behind; that he pulled as near the ditoh as he oould, the horse wanted to Jump over the ditoh, he swung bade on the horse, the horse was on a suanv, vas vruoic continued on the road and that is how the horse cams in oontaot with the truok, the horse was standing still, the truok was ooming in the same direotion that tete the horse was going, nad no warning of the truok coming, the 'ohauffeur did not blow any horn, the horse was struck on the left shoulder, it carried him and the horse and buggy some distance, the harness broke loose from the buggy and the witness Junked out of the buggy, the horse was injured having a wound about ten inohes long, the shaft and the side and baok wheel of the bno-o-v were broken and the harness was broken to pieces.

On oross examination he described the injury to the horse, stating that this was a common buggy, very small sad used as doctors.' buggies are when they are driving, the truok was ooming at a pretty good speed and oame right straight along, the horse was walking «long slowly.

Alfred Gibson, another witness for plaintiff, who was on the road at the time the acoident' occurred, about one hundred and fifty feet' from where it happened, asked to describe* what he saw of this aocidsnt, substantially says that the truok and buggy were going in the same direotion, the truok oame right on behind the horse and buggy about fifty feet and struck, the horse, and when it struck the horse, the horse oame back that way and the man in the buggy Jumped'out and the horse broke the harness and started to run away and three of them ran after him and carried him baok up' to the truck, the witness aid not know the man that'owned the truck, he was then pioking up some boxes that were knocked off the tr.uok, he further testifies the truok was going pretty fast and that the buggy was on the right side of the road, the truok was in the oenter of the road, aid not teat* hear any' horn blow, the road where the ao-cident occurred was wide enough fojr two trucks to pass on '«x -blae same side and one in the middle, the truok knocked a xfc hole in the horse's breast and witness says he could see all the insides moving; he further testifies that the ■truok had to pass the buggy before hitting the horse, the truck did not hit the buggy, it hit the horse and by the horse going oyer that turned the buggy and caused the damage to the buggy and broke the harness.

Another witness, Murray, corroborated the testimony of the former witness in almost every detail.

Milton Shields who was the owner of the horse and juggy testified to its value, knows nothing about the accident, testified to the condition of the horse and that it had to be killed, had owned the horse about six months paying |85.00 for hlgi, the harness and shaft were oid and The estimates their value at from ten to twelve dollars.

' The testimony of the defendant in explanation of the aooident substantially says that he was going towards Raceland with his truok and about e. mat quarter of a mile ha ■ahead of him he saw a horse and buggy going in the same direction, he says he blew his horn, that he whs in the center of the road and passed about one foot sway, the horse got scared, swung into his truok, he hit right in the center of the truok, his truok had wings on the side, put there to place a load on .the truok, so when the horse swung into the truok the baok of the front shoulder got stuck on one of those 'wings, th6 horse was still going s-fter he got hit and still swung to the left and knocked- a box out from the tail gate of his truok with the shaft, the buggy upset, the horse broke loose and they' '«xcfc went after him, says he blew his horn about forty feet from where the aooident happened, he stopped after he hit the horse, he swears that before he hit the horse the horse swung into his truok towards the left,.he oould not stop . . ,in time, to prevent the aooident 'his 'truck/ but ^ stopped about ten feet frpm.whene the ao-oident' happened.

On cross examination:

Q. As a matter of fact jcgnuxfcxmBk you took a narrow ohanoe in passing that buggy? A. I had been passing so me.ny buggies or automobiles and if it had stopped still I would not have hit the horse or buggy.
Q. Did you hit this one? A. The horse swung into me.

He further testifies that he was going about seven miles an hour.

By the Court:

Q. What is the condition of that road? A. Pretty good road,
q. What kind of a truck Hits were you driving® A. International truck, you can only go fifteen miles an hour when you are speeding, I never speed a truck when I have a load.

The last witness, Champagne, knows nothing at all about the accident, one way or the other.

A careful examination of this reoord satisfies us that this truck, having boxes on its sides, going in the same direction as the horse and buggy, was going behind, had a perfect view of the situation, saw the horse and buggy going slowly along and instead of stopping, took chances going ahead at a rapid rate of speed, without blowing his horn, and evidently the boxes on the side of his truck must have hit the horse which witnesses testify they did, and so doing, damaged plaintiff to such an extent that the horse had to be killed xsi a day or two after the accident, it is certain that if this defendant had blown his horn, had taken proper precautions either by stopping or otherwise, the ao-oident would not hs.ve occurred; the driver of the buggy did everything in his power by turning the horse, he got as near to the dltáh as it was safe for him to do,to avoid the ao-oident, but could not. It is apparent therefore that defendant was to blame. The trial judge kiscxi saw and heard the witnesses and on questions of fact only when the evidence is conflicting, the judgment of the lower court will not be disturbed,

3rd Court of Appeal, Piazza vs. Ratitich, 396»

"The chauffeur of an automobile on approaching from behind a vehicle going in the same direction, and intending to pass it, should sound his horn to warn the drive.r ahead of such intention."

Hart et al. vs. John Bonura & Co. 12 Ct. of App. 171.

n1Shen a driver attempts to pass another on a public road he does so at his peril. At least he must be responsible for all damages which he causes to the one who he attempts to pass and whose right to the proper use of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as will bring disaster upon himself. "

Avegno vs. Hart, 35 Ann. p. 235.

"The mere fact that the driver of a horse-drawn vehicle do*es not get out of the way of an automobile approaoh-lng from the rear at a high rate of speed does not warrant a finding of ssntJtkhaiiisusjt contributory negligence on his part."

Sec. 406, p. 566, Berry on Automobiles.

The plaintiff has asked for an amendment to the judgment of the lower Court, claiming a greater amount of damages than allowed by that court, but we think maSax after a careful review of all the testimony found in this reoord, that the judge aquo has done substantial justice and hi 3 judgment will be ms.intained.

For the reasons assigned, it is ordered, adjudged and decreed, tha.t the judgment of the Court aquo be and the same is hereby affirmed, oos'ts of both courts to be paid, by the defendant.

-Judgment affirmed-  