Belden v. Roberts

• Decision Date: 04 January 1926
• Docket Number: 10,227
• Citation: 3 La.App. 338
• Court: Court of Appeal of Louisiana — District of US
• Parties: MISS LYDA BELDEN v. G. N. ROBERTS, Appellant

3 La.App. 338

MISS LYDA BELDEN v. G. N. ROBERTS, Appellant

No. 10,227

Court of Appeals of Louisiana, Orleans

January 4, 1926

Appeal from First City Court. Hon. Val J. Stentz, Judge.

This is a suit for damages caused by an automobile collision.

There was judgment for plaintiff and defendant appealed.

Judgment reversed.

H. W Robinson, of New Orleans, attorney for plaintiff, appellee.

Gordon Boswell and Milo B. Williams, of New Orleans, attorneys for defendant, appellant.

OPINION

CLAIBORNE, J.

This is a suit for damages caused by an automobile collision.

The plaintiff alleged that on June 14, 1925, at 1 o'clock p m., she was driving her Ford Sedan automobile on First street in the direction of the river; that as she approached the property line on the lake side of Prytania street she brought her automobile almost to a complete stop; that she looked and listened in both directions; that she saw no vehicles approaching, except an automobile driven by the defendant which was half a block, or 150 feet, away; that she then proceeded to cross Prytania street, and had crossed the greater part of it and was in the middle of the river side track on Prytania street when defendant's auto struck the side of her auto with terrific force, driving it against the uptown river curb of the intersection; that in the collision the plaintiff was bruised on the cheek, back, neck, arms and body; that her automobile was badly broken, the left door panel was crushed, the top demolished, windshield glass broken, fenders, running boards crumpled, right rear wheel broken and axle bent; that the removal of the car to the garage $ 5.00, the garage fees $ 2.50 per day, and the repairs $ 195.70, are the cost of the damages; that the automobile be reduced in value $ 25.00; that the cuts and bruises to plaintiff are a damage of $ 50.00; that the accident was caused solely by the negligence of the defendant in the following particulars: First, in driving on the wrong side of the roadway; second, in failing to yield the right of way to plaintiff's auto which arrived at the intersection first and was crossing first; third, in approaching First street at a speed of thirty miles an hour in excess of the speed limit; and in failing to slow his car before running into plaintiff's car which was in view for more than 150 feet, and in having defective brakes.

Defendant admitted the collision and that plaintiff did not come to a stop on reaching the intersection of Prytania street, but denied all the other allegations of the petition; further answering, the defendant alleged that the damage suffered by the plaintiff "was due solely and entirely to the negligent operation of plaintiff's automobile, particularly in that it was not brought to a stop on reaching Prytania street; that it was being driven at a high and reckless rate of speed; that it was driven across Prytania street in utter disregard of respondent's right of way at a time when respondent's automobile, being driven in a careful and prudent manner, was at a dangerous proximity to the corner; and that the driver of plaintiff's automobile did not have it under control and was not exercising a proper lookout ahead, all in violation of Traffic Ordinance No. 7490 C. C. S.

There was judgment for plaintiff for $ 220.70 and defendant has appealed.

In order to recover plaintiff must prove that defendant was negligent or at fault in some particular, and that his negligence was the cause of the accident; but proof that plaintiff was negligent will defeat his action.

The first charge of negligence made by plaintiff is that defendant was driving on the wrong side of the roadway.

Plaintiff swears that the defendant was going up on the downtown river side, not on the car track.

The defendant says: "I was going up on the right hand of traffic."

The plaintiff's testimony is weakened by the improbability of defendant driving up the river or left-hand side of the street contrary to custom and to the general law of the road and to traffic ordinances and in the way of down-town travel.

She is contradicted by her own testimony. She says:

"The accident occurred directly in the middle of my car and directly in the middle of the rail."

Robert Belden, her brother, was in the car at the time of the accident. He says:

"Q. Where was your automobile when it was struck?

"A. Just about the second car track.

"Q. What part of your car was struck by the other car?

"A. About the motor on the left side."

It is perfectly evident that if the defendant was driving on the river side of Prytania street, he could not have struck a car in the middle of the rail.

Second. The second charge against defendant is that he failed to yield the right of way to plaintiff who had arrived at the intersection first.

This charge is based on S. G., Sec. 7, p. 8, of the traffic ordinance which reads as follows:

"The right of way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at a speed beyond control, nor that they may take advantage of such right of way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right of way given applies only where two automobiles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle traveling on the right of way street to disregard the right of vehicles which have already entered the intersections from an intersecting street."

The two cars approached the intersection at approximately the same time, for plaintiff's brother says that her car was struck "just about on the second car track", meaning when it had reached the second car track. This would place the plaintiff's car and that of the defendant also in the middle of Prytania street. It is also alleged that the "left door panel was crushed".

When defendant saw plaintiff issuing out of First street he had a right to believe that she would obey the ordinance and stop, or at least slacken her speed until he had passed, and thus yield defendant the right of way to which he was entitled. Huddy, p. 785.

The presumption is that every person will perform the duty enjoined by law. Clements vs. La. Electric Light Co., 44 La.Ann. 692, 11 So. 51; Cooley Torts, 659-661.

The traffic ordinance provides:

"No motor vehicle shall turn into or cross any right of way street, as fixed in Article I, Section 9, without first coming to a full stop." Huddy, Sec. 383, p. 373; Berry, Sec. 196, p. 199; 209 Ill.App. 485, 499.

"An engineer has the right to assume that a person on a track will step off." Schwartz vs. New Orleans & C. R. Co., 110 La. 534, 34 So. 667; Ford vs. Tremont Lumber Co., 123 La. 742, 49 So. 492; Saitta vs. Yazoo & M. V. R. Co., 153 La. 1099, 97 So. 261; Farrar vs. New Orleans & C. R. Co., 52 La.Ann. 417, 26 So. 995; O'Rourke vs. New Orleans City & Lake R. Co., 51 La.Ann. 755, 25 So. 323; Vanon vs. Louisiana Ry. and Navigation Co., 143 La. 1085, 79 So. 869; Nolan vs. Illinois Central Railroad Co., 145 La. 483, 82 So. 590; Schulte vs. New Orleans City & Lake R. R. Co., 44 La.Ann. 509, 10 So. 811; Abels vs. Brown, 156 La. 72, 100 So. 54.

Third. The third charge is that defendant approached First street at a speed of thirty miles an hour, in excess of the speed limit, and in failing to slow when plaintiff's car was in full view for a distance of 150 feet on First street.

The limit of speed fixed by the ordinance was twenty miles an hour. The defendant admitted that he was running at a speed of twenty-two miles an hour. The difference between the two is but slight. But the excessive speed was not the cause of the collision, as we shall show hereafter, and the violation of an ordinance cannot be charged as negligence unless it was the cause of the accident. Lopes vs. Sahuque, 114 La. 1004, 38 So. 810.

Fourth. There is no proof whatever that defendant's brakes were not in working order.

But it is not enough for the plaintiff to prove that the defendant was negligent; she must prove that she was not negligent herself, and that she did not contribute to the accident, for if she was guilty of negligence and contributed to the accident she cannot recover.

As early as 1841 in Fleytas vs. Rrd., 18 La. 339, the Supreme Court adopted the opinion of an English chief justice, who laid down the law as follows:

"If there was want of care on both sides the plaintiffs cannot maintain their action; to enable them to do so the action must be attributable entirely to the fault of the defendants."

This jurisprudence has been consistently followed. 2 H. D. 1054; 2 L.D. 494; Taylor Dig., p. 579-585; 2 Breaux 679; 5 La. Dig 522; Holzab vs. New Orleans & Carrollton Railroad Co., 38 La.Ann. 185; Brown vs. Texas & Pacific Ry. Co., 42 La.Ann. 350, 7 So. 682; Mrs. M. D. Ryan vs. Louisville, New Orleans & Texas Railway Company, 44 La.Ann. 806, 11 So. 30; Hoelzel vs. Crescent City R. Co., 49 La.Ann. 1302, 22 So. 330; Tatje vs. Frawley, 52 La.Ann. 884, 27 So. 339; Scovell vs. Levy's Heirs, 106 La. 118, 30 So. 322; Buechner vs. City of New Orleans, 112 La. 599, 36 So. 603; Harvey vs. Louisiana Western R. Co., 114 La. 1065, 38 So. 859; Pollezzotto vs. People's Bank, 125 La. 777, 51 So. 843; Borell vs. Cumberland Telegraph and Telephone Co., 133 La. 630, 63 So. 247; Foreman vs. Louisiana Western Ry. Co., 140 La. 389, 73 So. 242; Cambre vs. White Castle, Lbr. Co., 144 La. 699, 81 So. 256; Breen vs. Walters, 150 La. 578, 91 So. 50; Vappi vs. Morgan's Louisiana & T. R. R. & S. S. Co., 155 La. 183, 99 So. 31; 6 Orl. App. 238-136; 11 Orl. App. 330; 12 Orl. App. 171; Gibbons vs. New Orleans Terminal Co., 1 La.App. 371; Burton vs. Railroad, No. 9160 Ct. App., and many others...