Friede v. Toye Bros. Yellow Cab Co., Inc

• Decision Date: 28 June 1934
• Docket Number: 14856
• Citation: 156 So. 48
• Court: Court of Appeal of Louisiana — District of US
• Parties: FRIEDE v. TOYE BROS. YELLOW CAB CO., Inc

156 So. 48

FRIEDE v. TOYE BROS. YELLOW CAB CO., Inc

No. 14856

Court of Appeal of Louisiana, Orleans.

June 28, 1934

Rehearing denied Oct. 1, 1934.

John P Sullivan and David Sessler, both of New Orleans, for appellant.

Spencer Gidiere, Phelps & Dunbar and Wood Brown, all of New Orleans for appellee.

OPINION

WESTERFIELD, Judge.

This is an appeal from a judgment awarding plaintiff $ 1,500 as damages for physical injuries resulting from a collision between a Chevrolet automobile and a Yellow taxicab.

Plaintiff, Vladimir Friede, was a passenger in the taxicab when, at about 4 o'clock in the afternoon of September 30, 1932, it collided with an automobile operated by the minor son of Ernest D. Rogers at the intersection of Carondelet and Second streets. He brought this suit for damages on account of injuries sustained in that accident against Rogers and the Toye Brothers Auto & Taxicab Company, Inc., the owners and operators of the Yellow cab, claiming $ 5,000.

Rogers made no defense and judgment was had against him by default and against the Taxicab Company after a hearing upon the merits.

Three witnesses testified concerning the manner in which the accident happened; Friede, the plaintiff; Joseph Cuccia, the driver of the taxicab; and Fred Gruner, a bystander. The plaintiff's version of the accident is to the effect that he became a passenger in the cab at some point on Napoleon avenue for the purpose of being transported to his office; that the speed of the cab was excessive and that he admonished the driver to that effect without avail; that the cab, proceeding along Carondelet street, entered the intersection of Second street at a speed of 25 or 30 miles an hour and collided with the Chevrolet in the center of the intersection, with the result that the taxicab was turned over and came to rest on its side a short distance beyond Second street.

The taxicab driver gave the following account:

"I was coming down Carondelet about 20 or 22 miles an hour. About 75 feet from Second Street, I took my cab out of gear and drifted down to Second, which is a blind corner, stopped, blew my horn and looked out Second Street. There was a car parked about 25 feet from Carondelet. I looked out Second Street, about a third of a block, seen nothing coming, put my cab into first gear and started over. In the center of Second Street I shifted to second gear, stepped on the gas, put my foot on the gas, and the rear of my cab was about past the downtown curbstone when this Chevrolet coupe struck me in the left rear and turned me over on the right side. As my cab turned over the top of the cab struck a fruit peddler's wagon, left rear wheel. The wagon was on Carondelet Street, 10 or 12 feet from Second."

He also testified that no complaint had been made by his passenger concerning excessive speed; that he had been driving for about fourteen years and that it was his invariable custom to bring his cab to a full stop before entering an intersection marked by "blind" corners, of which there are many in the city of New Orleans, and that he did not depart from that practice in this instance, having stopped at every "blind" corner on this particular occasion; that he did not see the Chevrolet before it struck him, though he looked in the direction from which it came just before entering the intersection. However, he says, he did not look a second time because he saw nothing the first time, and thereafter he kept his eyes "straight ahead." The impact occurred, according to this witness, after he had completed the crossing of the intersection of Second street, at a point about ten feet below the curb line of Second street, nearest Canal street.

Fred Gruner, the bystander, stated that he was pushing a wheelbarrow down Carondelet street in the direction in which the taxicab was proceeding and that, as he had almost completed the crossing of Second street, he heard the squeaking brakes of the taxicab as it came to a stop before entering the intersection, heard the driver shift his gear, and saw the cab clear the intersection, when, his attention being attracted by the roaring of an automobile motor, he looked out Second street and saw a coupe about a half block, afterwards measured and found to be 130 feet, away, moving as rapidly as the wheels would turn, approaching from the direction of the lake toward the river; that he barely had time to escape contact with the speeding car by jumping suddenly to the side; that at the time of the collision the taxicab was moving at a rate of speed of from six to eight miles an hour.

During the trial of the case, at the invitation of defendant's counsel, the trial judge, the witnesses, and counsel proceeded to the scene of the accident, where the location of the colliding vehicles, when seen by the witnesses before and after the accident, was pointed out and the distances deemed of importance were measured.

The position of the defendant is that its driver was free from fault or responsibility for the accident because the Yellow cab first entered the intersection after having cautiously stopped and looked and that it had completed the crossing before colliding with the Chevrolet, the driver of which should have waited and yielded the right of way, under the familiar principle of law to the effect that one who first enters an intersection is entitled to proceed. Item Co., Ltd., v. Checker Cab Co., 9 La.App. 397, 120 So. 509; Dietrich & Wiltz v. H. T. Cottam & Co., 9 La.App. 740, 120 So. 262; Marshall v. Freeman, 10 La.App. 12, 120 So. 414; Middleton v. Jordan, 10 La.App. 189, 120 So. 668; Lepinay v. Vitrano, 12 La.App. 475, 125 So. 304: Cooke v. Seegers, 17 La.App. 313, 136 So. 216; Hamilton v. Lee (La.App.) 144 So. 249.

The contention of the plaintiff is that the negligence of the taxicab driver is manifest by...