Favaza v. New Orleans Public Service, Inc

• Decision Date: 23 April 1934
• Docket Number: 14830
• Court: Court of Appeal of Louisiana — District of US
• Parties: FAVAZA v. NEW ORLEANS PUBLIC SERVICE, Inc

154 So. 457

FAVAZA v. NEW ORLEANS PUBLIC SERVICE, Inc

No. 14830

Court of Appeal of Louisiana, Orleans.

April 23, 1934

Writ of certiorari denied May 21, 1934

Ivy G Kittredge, of New Orleans, for appellant.

Finnorn & Todd, Robt. B. Todd, and Cameron McCann, all of New Orleans, for appellee.

OPINION

HIGGINS Judge.

Joseph Favaza and Murphy Frere, his chauffeur, brought separate suits against the defendant street railway company to recover damages for personal injuries resulting from a collision between Favaza's Ford sedan automobile and the defendant's street car at the corner of Loyola street and Cleveland avenue, this city, on October 28, 1932, at about 9 o'clock p. m.

The petitions charge that the motorman was at fault in operating the street car at an unlawful and excessive rate of speed, particularly when his view of traffic approaching on the intersecting street was obstructed, in neglecting to sound his gong as a warning of the street car's approach, and in failing to see the automobile after it entered the intersection.

The defendant filed an answer in each case, denying that the street car was being driven at a rate of speed in excess of that permitted by the city traffic ordinance, No. 13702, C C.S., and averring that it was being operated at a moderate rate of speed, the motorman keeping a proper lookout and sounding his gong when nearing the crossing; that the sole and proximate cause of the accident was the chauffeur's negligence in driving on the car tracks at a fast and unlawful rate of speed. In the alternative defendant pleaded that, in the event the motorman should be held to be at fault, plaintiffs were guilty of contributory negligence in failing to stop the automobile at a point where they could reasonably observe the approach of the street car, in not carefully and prudently looking in the direction from which the street car was coming, and in failing to hear the approaching street car, which was making considerable noise.

Joseph Favaza's case was tried before a jury in division D of the civil district court, but, as one of the jurors had lost a member of his family during the course of the trial, he was excused by consent, and the trial with eleven jurors resulted in a mistrial. The case was again tried before another jury in division C of the same court, which rendered a verdict in favor of the plaintiff for the sum of $ 9,779. Murphy Frere's case was then submitted on the record to the judge of division E of that court, it being agreed between the parties that, in the event the trial judge should come to the conclusion that there was liability, the award should be fixed at $ 400, and the court, having found liability, granted Frere a judgment for that amount. Defendant did not ask for new trials and directly appealed to this court.

Plaintiff, Favaza, has answered the appeal and asked that the award be increased to the full amount prayed for, or $ 36,129. The cases were consolidated here in order that they might be considered together by this court.

Cleveland avenue is a paved roadway, 29 feet in width from curb to curb, and runs from the direction of the river towards the lake and is a one-way street under the traffic ordinance in that direction. Loyola street is likewise paved and a one-way street from Canal street towards uptown, measuring, from curb to curb, 29 feet 51/2 inches in width, with street car tracks located in the center. The two streets cross each other at right angles. The downtown sidewalk on Cleveland avenue measures 12 feet 51/2 inches in width; the riverside sidewalk of Loyola street is 12 feet wide. There is an automobile parking ground located on the downtown riverside of the intersection and one located opposite there on the uptown riverside of the intersection. There is neither a traffic light nor a traffic sign at this corner.

Favaza's Ford sedan automobile was occupied by Mr. Leon Gaye, one of his employees, who was seated on the rear seat, Murphy Frere, his colored chauffeur, 18 years of age, who was driving, and Favaza, who was seated next to the chauffeur. The automobile came down South Rampart street, turned in at Tulane avenue, and then into Elks place, crossed the neutral ground at Elks place, and proceeded into Cleveland avenue in the direction of the lake; Elks place being one block from Loyola street and parallel thereto. As the Ford automobile neared the crossing, its driver slowed down and then stopped at a point about 5 feet from the riverside gutter curb of Loyola street. It then slowly rolled onto the street car tracks, and, after the front wheels had passed over the first rail and were nearing the second rail, it was struck on its right side by the left front part of the street car at a point where the right front fender joins the running board and also where the door of the automobile is located. The automobile remained in front of the street car in a slanting position and was pushed up Loyola street a distance of about 75 feet. The street car weighed 35,000 pounds and the automobile 2,400 pounds. The street car, a new large steel type, slowly turned into Loyola street from Canal street over the sharp curve at that point and then proceeded up Loyola street toward Cleveland avenue, which is one block from Canal street and parallel thereto. Both vehicles were properly lighted and equipped with good brakes. The atmosphere was clear and the street dry.

Conceding that the motorman was guilty of negligence in failing to maintain an adequate lookout and to place his car under proper control under the circumstances surrounding the accident, a view most favorable to the plaintiffs, we shall pass to a consideration of the question of contributory negligence.

It is conceded by the plaintiff, Favaza, that Frere, his chauffeur, was acting as his duly authorized agent within the scope of his authority, and that, if he was guilty of negligence, it is imputable to him. The plaintiff, Favaza, and the passenger, Leon Gaye, were both knocked unconscious and testified they could not remember any details of the accident. Plaintiff's witnesses Joseph McLaughlin, C. E. Birmann, and George Damon state that their attention was directed to the accident by the noise of the impact, so that their testimony on the issue of contributory negligence is not helpful, except as to the speed of the street car.

The several eyewitnesses of the plaintiff testified that the street car was going at approximately 25 or 30 miles an hour at the time of the accident. In fact, two of these witnesses, who were standing in the middle of the block on Loyola street, between Canal street and Cleveland avenue, estimated that the street car passed them at that rate of speed. Plaintiff's witnesses also testified that the automobile was pushed by the street car from the point of impact to where it finally stopped, a distance of about 90 feet, as a further indication of the speed at which the street car was traveling.

In order to counteract and offset this evidence, defendant introduced the testimony of several persons who were experienced in the operation of street cars. They testified that by actual test the street car in question could not from a standing start gain a rate of speed in excess of 15 miles an hour within one block, or 300 feet, and, to arrest the momentum and bring the car to a stop when it was going that fast, it would require 80 feet. They further state that, if the street car went around the curve at Canal street at the rate of six miles an hour, the maximum rate of speed it could gain in one block would be 20 miles an hour, and that the car could then only be stopped in a distance of not less than 90 feet.

We are satisfied that the estimation of the plaintiff's witnesses as to the number of miles per hour that the street car was traveling as it went up Loyola street and at the time it struck the automobile is too high, and that the motorman's approximation of 18 miles an hour is correct.

Murphy J. Frere, the chauffeur, testified that he stopped with the front part of the Ford automobile about 5 feet from the river gutter curb of Loyola street, looked and listened for traffic moving up Loyola street, because he knew it was a one-way street, and neither saw nor heard the approach of any vehicle, although he had a range of vision down Loyola street toward Canal street for a distance of approximately 45 feet; that he then moved forward and looked and listened again, with a range of view of about 55 feet, and neither heard nor saw anything coming; that he then looked forward out Cleveland avenue in the direction of the lake and rolled upon the street car tracks at about 3 or 4 miles per hour; that Favaza then hollered "look out," and he simultaneously discovered the presence of the street car bearing down upon him, accelerated his speed in order to get across, but failed to do so, as he was struck on the right side by the car and pushed about 90 feet up Loyola street, where both vehicles came to a stop, still entangled.

Stanley Willoz, who was walking on the uptown river sidewalk of Cleveland avenue, about the middle of the block, between Elks place and Loyola street, noticed the Ford automobile as it slowly approached the intersection; that he heard the noise of the approaching street car, looked over the top of the automobiles in the parking lot, and saw the street car coming from behind the rear of the Elks building, which, by actual measurement is 69 feet from the intersection; that he heard the motorman sound the gong as he approached the crossing and that, as the automobile got on the street car tracks, there was a terrible crash as the result of the two vehicles colliding, and that the street car pushed the automobile up Loyola street for a considerable distance....