Tyler v. Feldman

• Decision Date: 10 June 1935
• Docket Number: 16121
• Citation: 161 So. 763
• Court: Court of Appeal of Louisiana — District of US
• Parties: TYLER v. FELDMAN et al

161 So. 763

TYLER v. FELDMAN et al

No. 16121

Court of Appeal of Louisiana, Orleans.

June 10, 1935

Normann & McMahon and Harold M. Rouchell, all of New Orleans for appellant.

Scott E. Beer, Walter M. Barnett, Jr., and Jos. G. Dempsey, Jr. all of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

This is a suit for $ 14,280, as damages for physical injuries. The allegations of the petition are that on October 1, 1933, while plaintiff was standing on the sidewalk on the uptown side of Washington avenue and gazing into the showcase of one Isidore Steinman, whose place of business is located at the corner of Washington avenue and magnolia street, an automobile owned by Jacob Nienaber and driven by Abraham Peck collided with an automobile owned and driven by Benjamin Feldman in the intersection of Washington avenue and Magnolia street, with the result that the Peck car ran upon the sidewalk, crashed into the Steinman showcase, and struck and injured plaintiff, causing him to be permanently disabled.

The suit was originally brought against Benjamin Feldman, Jacob Nienaber, and the Crescent City Ice Company, Inc., the employer of Nienaber and Peck.

The trial court maintained exceptions of no cause of action filed on behalf of Nienaber and the Crescent City Ice Company, Inc., and plaintiff has acquiesced in the judgment of court in this respect, and these parties are no longer involved in this suit. Peck, the driver of the Nienaber car, was not sued. There was judgment below in favor of plaintiff and against the remaining defendant, Feldman, in the sum of $ 5,000, and he has appealed.

Among other charges of negligence, it is claimed that Feldman was operating his automobile at an excessive speed, with defective brakes, and in disregard of the applicable provision of the traffic ordinance. The issue in the case, as developed below, and as presented in this court, appears to depend solely upon the question of fact as to whether the defendant violated subsection A of section 3, article 111 of the Traffic Ordinance No. 13,702, C. C.S., which reads as follows:

"Whenever traffic at an intersection is controlled by traffic control signals exhibiting colored lights or the words "Go', "Caution', and "Stop' said light and terms shall indicate as follows:

" "Green' or "Go' Traffic facing the signal may proceed, except that vehicular traffic shall yield the right of way to pedestrians and vehicles lawfully within a crosswalk or the intersection at the time such signal is exhibited.

" "Amber' or "Caution' or "Walk', when shown alone following the green or "go' Traffic facing the signal shall stop before entering the nearest cross-walk at the intersection unless so close to the intersection that a stop cannot be made in safety.

" "Red' or "Stop' Traffic facing the signal shall stop before entering the nearest cross-walk at the intersection or at such other points as may be designated by the Commissioner of public safety and remain standing until green or "go' is shown alone (3)5C."

The contention of plaintiff is that the Feldman car, which, just prior to the accident, was being driven out Washington avenue in the direction of the lake, entered the intersection of Magnolia street when the traffic signal showed red at a high rate of speed, and collided with the automobile driven by Abraham Peck in about the center of the intersection and thereafter traversed about a third of a city block and mounted the sidewalk curb on Magnolia street, Feldman having turned his car to the left and into Magnolia street in a belated and futile effort to avoid the accident.

On the other hand, defendant contends that he was driving cautiously and slowly and entered the intersection on the green light, and that the accident was entirely due to Peck's negligence in failing to observe traffic regulations by entering the intersection on a red light and in driving recklessly and at excessive speed.

In the Feldman car at the time of the accident there were, besides the driver and owner, Benjamin Feldman, his wife, Mrs. Feldman, and his father, William Feldman, and two small children, nieces of Benjamin Feldman. The three adults testified to the same effect and in substance that, when the Feldman car was about 75 feet from the intersection, the traffic light changed from red to amber, and that, before entering the intersection, at a speed of about twenty miles an hour, it had changed to green. The learned judge of the trial court apparently based his judgment entirely upon the conclusions he drew from the testimony of the defendant, as appears from the following excerpts from his reasons for judgment:

"Now in this case, there is no shadow of a doubt in my mind that Peck, the negro who was driving up Magnolia street with another negro named Landry, who was sitting on the driver's seat with him, on his right, on arriving at Fourth Street, one block immediately below Washington Avenue or Fifth Street, found the light at the intersection of Washington Avenue and Magnolia Street, green, and it is positively fixed in my mind, that as he came up the square between the two streets there, that I have mentioned, and while he was approximately seventy-five feet away from the intersection, the...