Bianchi v. Mussachi

• Decision Date: 15 December 1924
• Docket Number: 9855
• Citation: 1 La.App. 291
• Court: Court of Appeal of Louisiana — District of US
• Parties: ALBERT BIANCHI, Appellant, v. ANTHONY MUSSACHI

1 La.App. 291

ALBERT BIANCHI, Appellant, v. ANTHONY MUSSACHI

No. 9855

Court of Appeals of Louisiana, Orleans

December 15, 1924

Rehearing Refused January 5, 1925.

Decree Supreme Court. Writ of Certiorari and Review Denied March 3 1925.

Appeal from First City Court, Hon. Leon Labatt, Judge.

Plaintiff sues the defendant for damaging his automobile in a collision. There was judgment for defendant, and plaintiff has appealed.

Judgment reversed.

Jos Rosenberg, attorney for plaintiff and appellant.

John C. Hollingsworth, Samuel J. Tennant, Jr., attorneys for defendant and appellee.

OPINION

CLAIBORNE, J.

Plaintiff sues the defendant for damaging his automobile in a collision.

He alleges that on July 9, 1924, he was driving an auto up Chartres Street; that upon arriving at Esplanade Street he came to a full stop; that he noticed defendant's auto proceeding down Chartres Street, which stopped on the car tracks on the intersection of Esplanade and Chartres Street; that plaintiff then drove his auto into Esplanade Street in the direction of Royal Street; that defendant's chauffeur negligently started his car, causing it to crash into petitioner's auto with violence, causing a damage of $ 148.85.

The defendant denied all the allegations of plaintiff's petition, and further answering averred: That his agent was operating his auto "in and upon a neutral ground, cartracked, right-of-way Avenue, to-wit, Esplanade Avenue", and immediately prior to the collision "had come upon the intersection of the neutral ground between the two sides of said Avenue where she stopped and gave the usual signal", and then proceeded from said neutral ground on the neutral ground side of Esplanade Avenue "turning to the left and in close proximity to the neutral ground, as provided in the traffic ordinances, when plaintiff's automobile proceeding generally in a westerly direction up Chartres Street from below Esplanade, without stopping, signalling, or due care and caution, swung wide around the Chartres intersection on the lower side of Esplanade Ave., towards the neutral ground of Esplanade Avenue directly in front of and in close proximity to defendant's automobile and so suddenly as to make it impossible for defendant and his agents to stop the said automobile before the impact"; that plaintiff's acts above set forth constitute not only gross negligence, but also contributory negligence on the part of said plaintiff, and that plaintiff's acts, his negligence and his contributory negligence, caused or gave rise to the damage to plaintiff's automobile."

There was judgment for defendant, and plaintiff has appealed.

The decision in this case is more important to the public in defining the rights and duties of persons driving vehicles under similar conditions, than in deciding who is entitled to judgment between the plaintiff and the defendant.

As the traffic ordinance is the law of the case, and as the violation of that ordinance imposes liability, it is important to know what the ordinance provides.

Ordinance 7490, Commission Council Series, adopted August 7, 1923, which is the latest expression of councilmanic will, provides as follows:

Page 2, Article I, Sec. 1. "A vehicle, except when passing a vehicle going in the same direction, shall keep to the right hand curb as practicable."

"In turning to the right at a street intersection, hug the right hand curb."

"The turn to the left at street intersection must be made around the center of the intersection as illustrated above. (The illustration has a dotted line along the right of the street, along which the vehicle is moving, along the right of the center of the street, then turning to the left, along the right hand curb of the side walk.)"

"The left turn illustrated above is a violation of the ordinance." (The illustration has a dotted line along the right of the street, then before reaching the corner, crossing and as near the right hand curb as possible.)

Sec. 2. "On any Avenue, street or boulevard, divided longitudinally by a parkway or walk, vehicles shall keep to the right of such division. On streets so divided all vehicles, except when in the act of passing a vehicle ahead shall keep to the right of the center of the roadway so as to permit the passing of faster moving vehicles on the left. Driving against or near left hand curb on street so divided, except when passing another vehicle, is strictly prohibited."

Sec. 4. "A vehicle turning into another street to the right shall turn corner as near the right diagonally to the left until it reaches near the side of the sidewalk on the right."

Sec. C. "A vehicle when on a street divided by a neutral ground, desiring to turn to the left across the neutral ground shall turn to the left across the neutral ground corner as near the left hand curb as possible. A vehicle intending to turn across the neutral ground should move to the left hand side of the street when about fifty feet from the corner and hug the curb until the intersection is reached, then turn as in the illustration."

This section refers to vehicles driving along either side of the neutral side, but not to vehicles only crossing the neutral ground. Defendant's attorney was in error when he stated in argument that his client was driving along Esplanade Avenue. The testimony of the witnesses for both the plaintiff and the defendant establishes with absolute certainty that the defendant's car was running down Chartres Street from Canal to Esplanade Avenue. See pages 2-10 and 14 for plaintiff, and pages 8 and 18 for defendant.

Sec. 7 (d) p. 7. "On streets and Avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right of way to complete the crossing of the roadway of such street or avenue under the following conditions: Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a...