Lehon v. N. O. Pub. Service, Inc.

• Decision Date: 29 April 1929
• Docket Number: 11,545
• Citation: 123 So. 172,10 La.App. 715
• Court: Court of Appeal of Louisiana — District of US
• Parties: LEHON v. N. O. PUB. SERVICE, INC

123 So. 172

10 La.App. 715

LEHON v. N. O. PUB. SERVICE, INC

No. 11,545

Court of Appeals of Louisiana, Orleans

April 29, 1929

Appeal from the Civil District Court for the Parish of Orleans Division "D". Hon. W. L. Gleason, Judge.

Action by Dan S. Lehon against New Orleans Public Service Inc.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Weiss Yarrut & Stich, Lois H. Yarrut and H. W. Robinson, of New Orleans, attorneys for plaintiff, appellant.

Ivy G Kittredge, of New Orleans, attorney for defendant, appellee.

OPINION

JANVIER, J.

Plaintiff received severe injuries as a result of a collision between his automobile and a street car of defendant company, in the late afternoon of March 8, 1926.

The automobile, operated by the chauffeur of plaintiff, with plaintiff himself seated on the front seat alongside the chauffeur, was proceeding out Metairie Road towards the 17th Street Canal Bridge. For a distance of several hundred yards that road is bordered on one side by a canal and hedge alongside Metairie Cemetery and on the other side by the golf course, border fence and hedge of the New Orleans Country Club. There is a single track street car line of defendant company on the country club side of the roadway, This track parallels the roadway for a distance of some four or five hundred yards and then crosses it at an angle and enters a private right-of-way on the other side. From this point to the 17th Street Canal several hundred yards away the road and street car track again run parallel but there is between them an intervening space of some 30 or 40 feet. The inbound and the outbound street cars use the track alternately.

The street car which collided with plaintiff's automobile was on its way towards the new basin canal. It, and the automobile, were thus proceeding in opposite directions. They met in almost a head on collision.

Plaintiff charges that the street car was being operated at too fast a speed, that no warning signals were given by it, and that the motorman was not looking to the front. Plaintiff also contends that the failure of defendant to erect warning boards or lights at that unusually dangerous traffic intersection, in itself constitutes negligence.

Defendant denies all negligence on its part and charges that the proximate cause of the accident was the excessive speed of the automobile and the fact that the chauffeur, though familiar with the locality, failed to stop or to look or to listen for an approaching car.

It is claimed by plaintiff that the hedge, which borders the roadway, and a large tree and other shrubbery alongside the roadway obstructed the view of himself, his chauffeur and all those in his automobile and interfered with their sight of the approaching car.

According to plaintiff, there are some features which differentiate this case from the usual cases of collisions between street cars and automobiles at street crossings and intersections, and which, so plaintiff's counsel argues, prevent the application of the well recognized principle that, although defendant's employees may have been at fault, nevertheless the injured party cannot recover if, by the exercise of the senses of sight and hearing on his part or on the part of his chauffeur the accident could have been avoided. Plaintiff argues, for instance, that this was not a crossing because the street car tracks did not completely cross the roadway but turned into it and then extended along one side of it.

As authority in support of this contention, our attention is directed to certain decisions to the effect that streets which do not extend across other streets but which connect from only one side do not cross them. We do not think that this reasoning has any application here as it is perfectly plain that the route of plaintiff's automobile would necessarily take it across the car track and it was therefore the duty of the driver to look and to listen to determine whether a car was approaching.

It is quite true that if, as a result of obstructions or of the particular angle at which the track intersected the roadway, an unusually hazardous situation was created, it was defendant's duty to see that extraordinary precautions were taken by those operating its cars. Schwartz vs. Railway Co., 110 La. 534, 34 So. 667.

In Elliot on Roads and Streets (2d Ed.) Par. 891, p. 856, we find the following:

"If a railroad company, in the management of its traffic, causes unusual peril to travelers, it should meet such peril by corresponding precautions. So, where the crossing is especially dangerous to travelers on account of its locality or mode of construction, or because the track is curved, or the view obstructed, it is the duty of the company to exercise such care and take such precautions as the dangerous nature of the crossing requires."

But where plaintiff is familiar with the situation is he not bound likewise to take unusual care? That plaintiff and his chauffeur, Bell, were familiar with this crossing and had crossed it on many occasions is admitted by both of them. In the record we find the following admission of plaintiff:

"Q. He had frequently been over that road with you, had he not?

"A. Yes, sir."

The "he" referred to in the above question was plaintiff's chauffeur, Bell. Bell, himself, in this connection testified:

"Q. You had driven by there lots of times?

"A. Well, pretty regular, yes, sir, off and on."

Conceding then that the crossing, unguarded and built, as it was, at an angle, was more than usually hazardous, the effect of this extraordinary hazard as the proximate cause of the accident is lost when it appears that plaintiff and his driver were well acquainted with the...