Peterson v. New Orleans Ry. & Light Co.

• Decision Date: 03 January 1918
• Docket Number: 22658
• Parties: PETERSON v. NEW ORLEANS RY. & LIGHT CO
• Court: Louisiana Supreme Court

77 So. 647

142 La. 835

PETERSON v. NEW ORLEANS RY. & LIGHT CO

No. 22658

Supreme Court of Louisiana

January 3, 1918

Rehearing Denied February 7, 1918

SYLLABUS

(Syllabus by the Court.)

It is negligence on the part of a motorman, approaching a street crossing, not to reduce the speed of his car and have it under such control as to be able to avoid colliding with a heavily loaded auto truck crossing the track slowly in front of the car in plain view and at an apparently safe distance.

Negligence on the part of the chauffeur operating an auto truck is held not imputable to his employe seated beside him on the truck.

Provosty J., dissenting.

Dart, Kernan & Dart, of New Orleans, for appellant.

Woodville & Woodville, of New Orleans, for appellee.

PROVOSTY J., dissents.

OPINION

O'NIELL, J.

The plaintiff sued the New Orleans Railway & Light Company and the Jackson Brewing Company for $ 7,500 damages for personal injuries which he alleged he had suffered in a collision between an electric car of the railway company and an auto truck of the brewing company. During the trial before a jury he abandoned his case against the brewing company. The jury rendered a verdict in his favor for $ 1,500, and judgment was rendered against the railway company accordingly. The defendant prosecutes this appeal, and the plaintiff, answering the appeal, prays for an increase of the judgment to the amount sued for.

The plaintiff was employed by an employe of the brewing company, named Charles Kuhne, to assist him in his work of delivering beer to the customers of the brewery. The plaintiff's wages were paid by Kuhne personally. The two men were engaged in their work at the time of the accident. Kuhne was operating a three-ton motor truck, carrying a load of beer in barrels or kegs, weighing 2,000 or 3,000 pounds. The plaintiff sat beside Kuhne on the chauffeur's seat, but had nothing to do with running the truck.

The collision occurred at the intersection of Dauphine and Desire streets. The auto truck had entered Desire street from Burgundy, one block from Dauphine, running on second speed. The mechanism was set or 'sealed' so that it could not go faster than 10 miles an hour on high speed. Its maximum rate on second speed was less than 5 miles an hour. Desire street being paved with large granite blocks, it was impossible for the truck to travel faster than 4 miles an hour on that street. The truck was going at that speed until it came into Dauphine street, when Kuhne reduced his speed to about 3 miles an hour, preparing to cross the railway track. A building at the corner of Dauphine and Desire streets flush with the sidewalk, obstructed the view of the approaching trolley car from the position of the men on the truck until they entered Dauphine street. The trolley car was then about 200 feet from the crossing and coming at a high rate of speed. Believing the car to be at a safe distance, Kuhne proceeded to cross the track without having shifted his...