Broussard v. Hotard

• Decision Date: 17 November 1941
• Docket Number: 17166.
• Citation: 4 So.2d 563
• Court: Court of Appeal of Louisiana — District of US
• Parties: BROUSSARD v. HOTARD.

4 So.2d 563

BROUSSARD v. HOTARD.

No. 17166.

Court of Appeal of Louisiana, Orleans.

November 17, 1941

Rehearing Denied Dec. 15, 1941.

Writ of Certiorari Denied Feb. 2, 1942.

Rene R. Nicaud, A. E. Blackmar, and A. M. Suthon, all of New Orleans, for appellant.

A J. O'Keefe, Jr., of New Orleans, for appellee.

WESTERFIELD Judge.

William L Broussard brings this suit against Charles R. Hotard for damages for physical injuries alleged to have been sustained as a result of an accident which happened about 4 o'clock a. m. on the morning of October 18, 1937, when the Ford car, owned and driven by Hotard, struck Broussard as he was crossing the intersection of Tulane Avenue and S. Cortez Street with the intention of boarding the Tulane Avenue street car going in the direction of Lake Pontchartrain. The charges of negligence imputed to the defendant Hotard are that he failed to maintain a proper lookout, did not have his car under control and did not yield to Broussard the right of way to which, as a pedestrian, he was entitled, and finally, that he failed to blow his horn to signal his approach, all in violation of the traffic ordinance of the City of New Orleans, No. 13,702, C. C. S.

The defendant answered, denying all charges of negligence, and in the alternative, pleading contributory negligence.

There was judgment below in favor of defendant dismissing plaintiff's suit and he has appealed.

Tulane Avenue is a main thoroughfare with a neutral ground in the center on which there are two car tracks, with paved roadways on each side. On the morning of the accident it had been raining and, at the time of the accident, it was misting or drizzling. The street was clear of traffic and, though it was early in the morning, all witnesses agree that the visibility was good.

The defendant testified that he was traveling along Tulane Avenue towards its intersection with Cortez Street, at about twenty miles per hour when there suddenly appeared, about ten feet before him, the plaintiff, Broussard, running across the intersection with his head down, and about a street car's length beyond the pedestrian lane; that when Broussard was about the center of the street, he was struck by the front of his car, there being no chance to avoid him. In other words, Broussard suddenly ran out into the street and in front of his automobile.

Broussard declared that as he reached the corner of Tulane Avenue and S. Cortez Street, he saw a Tulane Avenue Street car at Genois Street, a city block distant from the S. Cortez intersection; that a motor truck was passing at the time and as soon as the truck cleared his path, he entered the street, in the pedestrian lane, signalling to the motorman on the street car which, by that time, was nearer the intersection, by raising his hand; that he was not running because "I had no reason to run, the street car was not close enough for that"; and that as he had almost reached the neutral ground he was struck by Hotard's automobile.

The only eye-witness other than the plaintiff and defendant was Lester Nuss, the motorman on the street car which Broussard intended to board. Nuss testified that as Broussard entered the intersection from the downtown lake corner of Tulane Avenue and S. Cortez Street, with the apparent intention of boarding his car, he was walking and not running and that he was in the pedestrian lane and not beyond it; that when he first saw Broussard he was a block away from the intersection and that the automobile, operated by the defendant, which passed his street car in the block, was traveling between twenty-five and thirty miles per hour when it neared the intersection; that Broussard was struck near the neutral ground and not in the middle of the roadway.

It is apparent that the evidence preponderates to the effect that Broussard entered the intersection in the pedestrian lane of traffic when defendant and his automobile was a considerable distance away and that he plainly had the right of way as established by Article IV, Section 2(a) of the City Traffic Ordinance No. 13,702 Commission Council Series, which reads as follows: "The operator of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk, or within any unmarked crosswalk, at an intersection, provided pedestrian has started across the street before the vehicle shall have entered the intersection, except at intersections where the movement of traffic is being regulated by police officers or traffic control signals, or at any point where a pedestrian tunnel or overhead crossing has been provided." See Langley v. Viguerie, La.App., 189 So. 606.

Hotard also failed to maintain a proper lookout and did not have his car under proper control. In this respect he violated Article V, Sections 2 and 3(a) of the Traffic Ordinance.

In Rottman v. Beverly, 183 La. 947, 165 So. 153, 156, the Supreme Court said: "The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger."

In Jackson v. Cook, 189 La. 860, 181 So. 195, 197, it is said: "* * * that the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability."

In Gouzien v. Feraci, 2 La.App. 115, in speaking of the driver of an automobile who had knocked down a pedestrian crossing at an intersection, we said: "It was her duty under all conditions, but specially at a street crossing, to look for pedestrians upon her path and to have her automobile under control. Duffy v. Hickey, 151 La. 274-279, 91 So. 733; Carroll v. New Orleans Ry. & Light Company, 125 La. [ 898], 903, 51 So. 1029; Shields v. Fairchild, 130 La. 648, 58 So. 497; Eichorn v. New Orleans & C. R. Light & Power Company, 112 La. [ 236], 237, 36 So. 335 ."

Broussard was not guilty of contributory negligence. He walked across the intersection at the proper place, having entered it when Hotard's automobile was a considerable distance away, far enough for him to cross in safety if the approaching car had been prudently operated. See Langley v. Viguerie, supra; Sweeney v. New...