Terrebonne v. Toye Bros. Yellow Cab Co.

• Decision Date: 20 April 1953
• Docket Number: No. 19980,19980
• Parties: TERREBONNE v. TOYE BROS. YELLOW CAB CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 868

64 So.2d 868

TERREBONNE v. TOYE BROS. YELLOW CAB CO. et al.

No. 19980.

Court of Appeal of Louisiana, Orleans.

April 20, 1953.

Rehearing Denied May 25, 1953.

Adrian F. Duplantier, New Orleans, for plaintiff-appellee.

Deutsch, Kerrigan & Stiles and Breard Snellings, New Orleans, for defendants-appellants.

Before JANVIER and REGAN, JJ., and LOUIS H. YARRUT, Judge ad hoc.

JANVIER, Judge.

This case results from the collision of two automobiles at the intersection of North Carrollton Avenue and Orleans Street in New Orleans, at about seven o'clock in the morning, on September 1, 1951. The 1935 Ford Tudor Sedan, owned and operated by plaintiff, Terrebonne, was on Orleans Street going in the direction of Lake Pontchartrain, and the taxicab of the defendants was on the river-side roadway of North Carrollton Avenue going in a northerly or downtown direction. The two vehicles met in the intersection. Plaintiff's Ford was admittedly damaged beyond repair. It is conceded that before the accident it had been worth $165, and that he sold it for 'junk' for $25. In addition to this loss, he prays for judgment for physical injuries in the sum of $2,000, medical expenses amounting to $26.50, and $50 for the rental of another automobile which he says was necessary in his business and which was used for the two weeks before the could purchase another car.

From a judgment in favor of plaintiff for $800, defendants have appealed.

Facing each driver on the curb at his right there is a 'stop' sign and it is conceded that, because of the City Traffic Ordinance, No. 13,702 C.C.S., each driver was required to stop before proceeding into the intersection. It is conceded also by defendants that the driver of their taxicab did not stop in obedience to the stop sign, and that he entered the intersection without first looking for vehicles on the other street, but defendants maintain that the proximate cause of the accident was not the negligence of the operator of their taxicab, but was the negligence of plaintiff himself in that he, after stopping his car before entering the intersection and after seeing that the taxicab was only a short distance away, speed and was only a short distance away, proceeded into the path of the taxicab when it was obvious that he could not complete the crossing ahead of the taxicab.

Terrebonne, plaintiff, says that he approached the crossing at a speed of about 25 miles an hour, and that he stopped at the stop sign about three feet 'back' from the curb of Carrollton Avenue, and that he then looked to his left and saw the approaching taxicab about 75 feet from the 'stop' sign which faced the taxicab. He says that the taxicab was approaching at a speed of about 30 miles per hour and that he started his car in 'first gear' and that his 'wheel was just about hitting the other neutral ground' when the taxicab crashed into the left side of his car right in the center of the car.

I. J. April, who was a passenger in another car going in the direction in which the taxicab was going, says that he saw the accident and that the taxicab passed the car in which he was sitting at about 45 miles per hour while the car in which he was had stopped for the first roadway of Orleans Street.

George J. Henling, who was also in the car in which April was a passenger, said that the taxicab passed them, but that he could not say how fast it was going. He said, '* * * not very slow; but how fast, how many miles, I couldn't tell you.' He says that plaintiff's car had practically completed the crossing and that it 'was about two or three feet from the neutral ground.' He added, 'It was practically across.'

Thomas F. Daly, the driver of the taxicab, says that he was not familiar with the house numbers on North Carrollton Avenue, and that he was 'looking out the right side of the cab.' He added, 'I looked a little too long and when I looked up Mr. Terrebonne's car was right in front of me and before I could do anything I had hit him.'

We are impressed with the very obvious fact that since plaintiff's car had almost completed the crossing and since it was struck at about the middle of its left side, even the slightest reduction of the speed of the taxicab would have permitted it to complete the crossing in safety.

We also note that the speed of the taxicab could not have been very great for we think it certain that if the driver was looking out of the cab for house numbers, he would not have been operating his cab excessively fast.

Surely Terrebonne, seeing the taxicab approaching at a moderate speed and about 75 or more feet away, and knowing that its driver was required by the City Ordinance to stop it at the stop sign, was justified in assuming that its driver would either stop or at least reduce the speed of the taxicab and permit his vehicle to complete the crossing.

Counsel for defendants call attention to the recognized principle that even when a driver with the right of way approaches an intersection, he should not enter it where it appears that a driver on the other street, obviously unaware that there is another vehicle about to enter the intersection, approaches at such speed that it should be obvious that he does not intend to stop.

Our attention is directed to Lewis v. Travelers Insurance Co., La.App., 55 So.2d 79, 80, in which we said:

'* * * The law is well founded that a person approaching the intersection on a right of way street has a right to assume that traffic approaching it from an inferior street will yield the right of way to him. * * * The only exception to this rule is where the action of the driver approaching on an inferior street is such that it would cause a reasonably prudent person to have reason to believe that he was not going to stop because of his speed or some other action, * * *'.

Counsel also cited Scheib v. Ledet, La.App., 57 So.2d 814, 816, in which we discussed a somewhat similar situation and said that possession of the right of way did not entirely relieve...