Insurance Co. of North America v. Gore

• Decision Date: 17 November 1958
• Docket Number: No. 21108,21108
• Citation: 106 So.2d 471
• Court: Court of Appeal of Louisiana — District of US
• Parties: INSURANCE CO. OF NORTH AMERICA and United States Fire Insurance Co. v. William C. GORE, Harold M. Eiswirth, and Joseph G. Prevost D/B/A Liberty Bell Cab Co. and Nola Cabs, Inc.

Page 471

106 So.2d 471

INSURANCE CO. OF NORTH AMERICA and United States Fire Insurance Co. v. William C. GORE, Harold M. Eiswirth, and Joseph G. Prevost D/B/A Liberty Bell Cab Co. and Nola Cabs, Inc.

No. 21108.

Court of Appeal of Louisiana, Orleans.

Nov. 17, 1958.

Henry L. Oulliber, Jr., and Robert J. Pitard, New Orleans, for Nola Cabs, Inc., Harold M. Eiswirth and Joseph G. Prevost, defendants-appellants.

Bienvenu & Culver and H. F. Foster, III, New Orleans, for plaintiffs-appellees.

McBRIDE, Judge.

On May 13, 1955, about 2 o'clock a.m., two automobiles collided at the intersection formed by St. Philip Street and the uptown-bound traffic lane of North Rampart Street, which caused the driver of one of the cars to lose control thereof and the automobile ran into a building located on the downtown-river corner of the intersection formed by said two streets causing the damage thereto of $259.50. The owner of said building subrogated all claims he may have against the defendants to the plaintiffs in this suit, and they, as subrogees, are now seeking to recover the amount of said damage, impleading as defendants Gore, the owner and operator of the automobile which ran into the building, Prevost, the owner of the other automobile which is a taxicab, Eiswirth, its driver, and Nola Cabs, Inc., the liability insurer of the cab, all in solido.

All defendants, except Gore, answered the suit, but Gore did appear as a witness at the trial in the lower court. He endeavored to cast blame for the accident on Eiswirth, who drove the cab, while Eiswirth seeks to place the blame on the shoulders of Gore.

After the trial below, judgment was rendered in favor of plaintiffs as prayed; this appeal was taken by Prevost, Eiswirth, and Nola Cabs, Inc.; Gore took no appeal.

We are dealing with a case where the property of an innocent party is damaged as a result of an accident between two automobiles, the owners and operators of which are made solidary defendants. Under such circumstances the burden of proof is upon each defendant to exculpate himself from negligence, and each must be deemed guilty of negligence per se in the absence of any showing to the contrary. Marquez v. Miller, La.App., 64 So.2d 526; Bonner v. Boudreaux, La.App., 8 So.2d 309; Armstrong v. New Orleans Public Service, Inc., La.App., 188 So. 189; Weddle v. Phelan, La.App., 177 So. 407.

Gore was driving on St. Philip Street proceeding in the general direction of the Mississippi River, and his story is that upon reaching Rampart Street he stopped in obedience to the 'stop' sign which confronted him, and that he looked to his left and noticed but one vehicle approaching and that was the taxicab driven by Eiswirth which was about one block away. He attempted a crossing of the intersection and reached the neutral ground which bisects North Rampart Street, but was forced to stop at that point because there was another car ahead of him. He maintains his car was stopped in such a position on the neutral ground that the rear portion protruded out into the traffic lane of Rampart Street in which the taxicab was traveling and the taxicab struck his car on its left rear causing him to lose control thereof, the result of which was that his automobile ran into the building on the other side of the street. Gore states the crash came just as he moved forward behind the car ahead of him.

Eiswirth's version of what happened is entirely different. He testified he was driving up Rampart Street about 20 to 25 miles an hour, and that when about 20 to 25 feet from the intersection, he observed the reflection of the headlights of an automobile on St. Philip Street. It is shown that a building located to Eiswirth's right would obliterate the vision of a motorist on Rampart into St. Philip Street, and we are convinced Eiswirth is correct in stating he could only see the reflection of Gore's headlights as he approached the intersection. Eiswirth went on to say he believed the car on St. Philip Street would stop in obedience to the traffic sign, but that when the cab was about ten feet from the intersection, Gore's car suddenly darted out into North Rampart Street directly in front of the cab, and he could not avoid running into it notwithstanding his application of the brakes. The crash came in the middle of the intersection. Eiswirth insists Gore did not stop before emerging into the North Rampart Street traffic lane.

Ordello, a disinterested witness, was driving on the other side of North Rampart Street going in a downtown direction, and his testimony is that he saw the cars crash on the other side of the street. He first noted the taxicab when it was 25 feet before reaching St. Philip Street, at which time his own automobile was also about the same distance from St. Philip Street.

Ordello corroborates Eiswirth in the speed of the taxicab, his estimate being that it was traveling about 25 miles an hour. Ordello declares he saw the Gore automobile just about the time it reached Rampart Street and that no attempt was made by its driver to stop and...