
    Charles''1?-. Claiborne, Judge.
    EDWIN P. CUNDIFF, Appellant VS SAM IMBRIGULIA
    No. 8297
    June 19th, 1922.
    
      
    
   EDWIN P. CUNDIPF, Appellant vs SAM IHBBIGOLIA

No. 8297

CHARLES F. CLAIBOBNE, JUD®.

This isa darnagp suit, resulting from a collision between truck and an automobile.

The accident happened on js^e^Mv^r side of a triangular portion of ground occupied by the^fruit martet, and covered with buildings and stands, bounded ait the base s^St. Philip Street, on the- Lake side by Decatur Street, and on the Hi ver side by Peters Street. At the apex of the triangle, Decatur Street and Peters Street merge into each other and leave an open space. A short distance above the apex, towards Canal Street» Dumaine Street runs into Decatur or Peters Street. Along the Hi ver side of the triangle, in the center of Peters Street, there are two street railroad car tracks. The rail of the track nearest the Lake is twenty feet from the curbing or banquette of the market and the street is fifty feet wide. The time was about llsl5 of a Sunday in the month of May; the weather was rainy.

A recital of the testimony of the several witnesses for the plaintiff and for the defendant would serve no useful purpose; it is sufficient for us to state the facts as we find them, and such as they are practically admitted by both sides.

The defendant was the owner of a heavy truck; he employed a chauffeur to drive it’. This chauffeur was driving the truck up Decatur Street, ana when he gpt to the extremity of this triangle he turned to Ms left and proceeded to cross Peters Street with a view of turning to his left towards Eáplanade Avenue. The ironb wheels of Ms truck had reached the first track towards the lake, when plaintiff's oar struck the front of his truck hitting the bumper and the front wheel. The driver of the truck did not stop before attempting to cross the tracks; nor did the collision cause it to stop; the truck continued until it struck the curb on. the other side of the street. 'When the impact occurred the driver says he was knocked off of his truck, and fell on the left side of the truck, although he was driving, on the right; but two witnesses say he jumped off of the truck on the right. The plaintiff says that neither he nor the lady in his ear with him was shaken or received a scratch. Defendant's driver says he

"blew his horn";

three witnesses swear they did not hear it.

The evidence is that plaintiff was driving'up Peters Street in his automobile on the right side of the street over the tracks of the street cars going uptown; that when he reached near the point where Decatur and Peters Street meet) the truck swung around the point and struck his right fender. One of plaintiff's witnesses, utterly disinterested, thus states it:

"Imbrigulia's truck turned around there at the point' of the market and ran right into his automobile"".

Another witness for plaintiff 'says:

"I gave the man my card and told Mm if he needed a witness to call on me".

Both the truck and the car were damaged. Plaintiff claims $1200 and defendant prays in reconvention $209.75.

There was judgment rejacting both demands. The plaintiff has appealed, and defendant joins in the appeal.

TMs evidence satisfies us that the defendant's truck was carelessly thrown in the way of plaintiff's car, and was the immediate cause of the accident. In doing so the driver violated all laws of prudence. He must have known that in crossing that much frequented thoroughfare and two car tracks he would more than probably be in the way in somS" veMole going uptown. It was raining and. many cprtains of the market stands aloné and fronting Peters Street, and more especially of. the stands near the apex of the triangLe, were down- and obstructed the view .between Decatur and Peters Streets. Besides he flagrantly violated two Sections of the City traffic ordinances which commanded him to come' to a full stop, to look, and listen, oh'approaching car tracks with a view of crossing them.

Section 8 of Article I of Ordinance 5181 adopted August 6th, 19Í8 ordains:

"Bight of Way: "Vehicles graveling on the following streets have'the right of'way over vehicles approaching on intersecting streets namely: St. Charles Street &c i x x, and. also all' other streets with street car tracks. Vehicls'e approaching above streets and avenues from intersecting streets shall, before crossing or turning into same, come to a full stop".

Thdre is no pretense that defendant's driver came to a Stop. If he had looked he could not have helped seeing the car winch wap in such close -proximity to him.

B£t defendant contends that this ordinance does not apply because Decatur Street is not an

"inteiaeting street".

The letter and spirit of the law is that vehicles travel^ ing on streets upon which there are car tracks, shall have the right of. way, and that this right of wg,y shall prevail over thosp. attempting tp cross them.

' Tnera^was a time, not suipi<±>us,when defendant's counsel agreed with us. For in the answer filed in this case, sworn to by him, he says:

"Your respondent's truck was slowly crossing the uptown track on North Peters Street at_the intersection of saM street with Decatur Street, going in the direction of the Biver &c".

But if we.are wrong in our interpretation of this section, then another section of this same ordinance condenas tiie defendant. Section 3 of Article II provides as follows:

"3- Intersections and crossings - No motor vehicle shall turn into or cross any right of way stfceet, as filed in Article One, Section 8,without first coming to a ful? stop to*.

The defendant also argues that the requirement as to stopping applies only to the particular streets and avenues specifically named in the ordinance, and does not affect

"all other- streets with street car tracks*.

We cannot agree with counsel, as the reason of the rule is the same.

Counsel- again agraes that the ordinance does not apply for the further reason that the failure of the driver of the track to-stop was not the proximate cause of the accident. We think, on the contrary, that the failure of the driver to stop was in the very teeth of the law and defeated its plain purposes, which were évidently-to give the driver of the crossing motor a deliberate opportunity of seeing an auto running on the right of way street, and to afford the car on the right of way street' an equal opportunity. We are convinced that if the track had stopped when it reached, the line of Peters Street, or within ten'.feet of the railroad car track, that it would have seen or heard the oar coning up Peters Street. Defendant's witnesses- swear they could see dovm to Drsulines Street a di stance of more than a block, and that plaintiff's car was making as much noise as an aeroplane.

Qf course, defendant's negLiggnce and violation of a City Ordinance would not alone justify a judgment against him, if the plaintiff himself had been guilty of negligence, or if by the exercise of dike care, he could have avoided the collision.

The defendant's only charge of negligence against the plaintiff is that he was speeding. Two witnesses testify to that: Rosit Grasso and B. Mutti. Both of those witnesses were on the banquet OÍ the fruit stand. In front of Mrs. Grasso the curtains viere dovm and only a small opening was left to allow people to pass. B. Mtitti says that there were no curtains in front of his stand. But there were in front of other stands. His testimony is fraught with exaggeration. He testifies that from his position, he could see dovm to Ursulines Street, which is the second street beyond the market; that the plaintiff's car was running at the rate of 40 or 50 miles an hour, and that, in running past him, it splashed the the water all over the sidewalk which was 20 feet distant from the rail. On the other hand the plaintiff and one of his witnesses swear that the plaintiff

"was going at a moderate rate".

We cannot conclude from this conflict that plaintiff's speed was in violation of the law or of reason.

This case is in line with several decisions rendered by us wherein we said that drivers of automobiles who by their violation of traffic ordinances bring about a collision must pay for the damage. See Joseph vs Orleans Ice Co. No. 8232 and Maxwell vs N. O. Ry. & Lt. Co. No. 8595; Boston Ins. Co. vs Mohdy No. 7891; Frey vs Cocino No. 8191.

In the case of Jones vs N. 0. By. & Lt. Co. 123 La. 1060, the Court said:

"His (the motonaan's) duty was to conform to the ordinance not to- reason about it. He had no discretion in the premises. It is the duty of the Court to see that an ordinance which was enactSd under the police power for the public safety should be rigidly enforced in aid of the remedy for the mischief sought to be guarded against".

We may add that it is public policy that such ordinances should be eniorced in order that chauffeurs of automobiles,^sr^h^angejyus^ instruments in the hands of the unskilled and imprudejj^ should be taught to exercise great care^jmd caution, and thus that the pro-party and the life of the citizen should be protected.

The only question that remains for solution is the amount of the damage.

The plaintiff testifies that the materials would cost the $ 583.88 sum of a witness testifies that the labor of replacing these parts wourd amount to 254.00 Making a total of $ 828.88

Judgment reversed.

June 19th, 1922.  