Upton v. Bell Cabs, Inc.

• Decision Date: 23 April 1934
• Docket Number: 14658,14659
• Citation: Upton v. Bell Cabs, Inc., 154 So. 359 (La. App. 1934)
• Parties: UPTON v. BELL CABS, Inc., et al. (FidelITY & CASUALTY CO. OF NEW YORK, Intervener). RAU v. SAME
• Court: Court of Appeal of Louisiana

154 So. 359

UPTON v. BELL CABS, Inc., et al. (FidelITY & CASUALTY CO. OF NEW YORK, Intervener).

RAU v. SAME

Nos. 14658, 14659

Court of Appeal of Louisiana, Orleans.

April 23, 1934

Wm. J Kearney, Jr., and Alvin R. Christovich, both of New Orleans for appellants.

Robert S. Link, Jr., of New Orleans, for intervener.

Bond Curtis, Hall & Foster, of New Orleans, for defendant Bell Cabs, Inc.

OPINION

HIGGINS Judge.

Alfred Upton and Jackson Rau instituted separate suits against John A. Salter, Ben J. Lifsey, and the Bell Cabs, Inc., in solido to recover damages for personal injuries alleged to have been sustained as the result of a collision between the taxicab, a Chevrolet sedan, in which the plaintiffs were riding as passengers, and the Auburn sedan automobile owned by defendant Lifsey and driven by defendant Salter, at the intersection of Freret and Marengo streets, this city, on January 29, 1932, at about 12:25 a. m.

The petition of each plaintiff alleged that the accident occurred through the joint and concurrent negligence of both drivers; that Salter was at fault in the following respects:

"1. In failing to stop before entering a right of way street.

"2. In driving his car at a reckless and dangerous rate of speed, in excess of forty-five miles per hour, and entering the said intersection, without looking for approaching traffic, and without slowing up before entering said intersection.

"3. In failing to keep a proper lookout for approaching traffic.

"4. In failing to have his car under proper control.

"5. In driving said car in a reckless and illegal manner, in total disregard for the rights and safety of others.

"6. In failing to take any measures to prevent the collision when same appeared imminent.

"All of which is in violation of traffic ordinance No. 7490 C. C.S. of the City of New Orleans which ordinance is hereby pleaded in its entirety."

The chauffeur of the taxicab is said to have been guilty of negligence on the following grounds:

"1. In not having said cab under control.

"2. In proceeding at a reckless and illegal rate of speed at an intersection where traffic is heavy and therefore dangerous.

"3. In not keeping a lookout for approaching cross traffic.

"4. In failing to avoid an imminent collision between said cab and the approaching Auburn car, through the application of usual measures to prevent like accidents.

"5. In proceeding in a careless and reckless manner without regard to the welfare and safety of his passengers.

"All of which is in violation of traffic ordinance No. 7490 C. C.S. of the City of New Orleans, which ordinance is hereby pleaded in its entirety."

In their answers defendants Lifsey and Salter admitted that the collision took place, but denied liability, averring that the driver of the taxicab was solely at fault in proceeding at an unlawful and excessive rate of speed under the expressed directions of the plaintiff Rau, and, in the alternative, pleaded contributory negligence on the ground that the plaintiffs did not complain about the reckless rate of speed at which the cab was being driven.

Bell Cabs, Inc., answered admitting that the accident occurred and the plaintiffs were injured and that the allegations of the petitions charging negligence against the defendant Salter were true, but denied that the taxicab driver was in any way at fault, and averred "that said accident was due solely and entirely to the negligence of the said John A. Salter; that the said John A. Salter was guilty of gross negligence in that he failed to stop before entering a right-of-way street, in that he drove his said car at a reckless, illegal and dangerous rate of speed, in excess of forty-five miles per hour, in that he entered said intersection without first looking for the approaching traffic and without slowing up before entering said intersection, in that he failed to keep a proper look-out for approaching traffic, in that he did not have his car under proper control, and in that he drove his said car in a reckless and illegal manner in wanton disregard for the rights and safety of others."

The compensation insurance carrier which paid workmen's compensation to both of the plaintiffs in behalf of their employer filed a petition of intervention making claim for the amount of medical expenses and compensation paid to the plaintiffs respectively, and reiterated the charges of negligence made by plaintiff against both drivers.

When the case was called for trial counsel for Salter and Lifsey withdrew because his clients failed to appear.

There was judgment dismissing the suits against the Bell Cabs, Inc., and granting judgment in favor of the plaintiffs against the other defendants in solido, Alfred Upton being awarded the sum of $ 3,153.76, and Jackson Rau the sum of $ 1,059.15, and further judgment in favor of the compensation insurance carrier, for the full amount of compensation and medical expenses paid, amounting to $ 992.45 and $ 75 attorney's fees.

The plaintiffs and the intervener have appealed and seek to have the judgment amended by holding the Bell Cabs, Inc., liable in solido with the other defendants and by increasing the amount of each award.

The cases were consolidated for the purpose of trial in the district court and also here.

Freret street, on which the taxicab was proceeding in an uptown direction, is a paved two-way thoroughfare, thirty-three feet in width, with double street car tracks located thereon, and runs from uptown to downtown. Marengo street, on which the Auburn seven-passenger sedan was being driven towards the lake, is a paved two-way street, thirty-six feet in width, and runs from the river to the lake. On the downtown river corner of the intersection is situated a residence, a tree, and a telephone post which obstructed the view out Marengo street towards the river of one going uptown on Freret street, so that a motorist could not see for any appreciable distance to his left out Marengo street until he reached a position approximately fifteen feet from the lower property line.

Under the traffic ordinance, No. 7490, C. C.S., which was in force and effect at the time of the accident, Freret was a right of way street and all traffic on Marengo street was required to come to a full stop before crossing the intersection. There was also a large metal traffic stop sign mounted on a post on the downtown river sidewalk of Marengo street about ten feet from the corner. There were no slow or caution signs of any character on Freret street. The maximum speed permitted by the ordinance in this vicinity was twenty miles per hour.

The plaintiffs engaged the taxicab at the corner of St. Charles and Louisiana avenue. The cab proceeded out Louisiana avenue in the direction of the lake, turned into Freret street, and was going up town at the time of the collision.

All of the witnesses are in accord that the Auburn car was being driven at an excessive and unlawful rate of speed, estimated between forty and forty-five miles per hour, and without slowing down or giving any signal dashed into the intersection, the front part thereof striking the taxicab on the left side where the rear door is located and the rear fender joins the running board. The cab had negotiated about one-half the intersection at the time it was struck. As a result of the impact, the cab was driven sideways towards the uptown lake sidewalk, where the right rear side struck a telephone post, bringing both vehicles, still engaged, to an abrupt stop at that point, and causing serious and painful injuries to the plaintiffs.

It was shown that Salter admitted that he was a stranger in the city of New Orleans, unfamiliar with the traffic regulations and did not know that he was required to stop before entering Freret street.

Plaintiffs state that, while they did not particularly observe the manner in which the chauffeur was driving because they were engaged in conversation, it appeared to them that, during the time he was driving out Louisiana avenue and up Freret street, he was going at about thirty to thirty-five miles per hour; that he did not slow down or sound his horn before entering the intersection: that they observed the glare of the headlights of the Auburn sedan about one-half block before they reached the corner; and that as they were about to enter the crossing they noticed the Auburn car, some distance down Marengo street, coming towards them at a fast rate of speed.

The only other eyewitness to the accident was the chauffeur, and he states that there was a governor on his car that prevented its being driven at more than thirty miles an hour (his testimony in this respect being corroborated by other witnesses); that he was driving out Louisiana and up Freret street at about twenty-five to thirty miles an hour, but that, as he reached the street one block below Marengo, he was required to slow down and shift into second gear as another automobile entered the intersection and crossed in front of him; that he accelerated his speed and was going about twenty to twenty-five miles per hour when he reached the corner of Marengo street; that he sounded his horn and as he was about fifteen feet below Marengo street he observed the headlights on the Auburn car between fifty and seventy-five feet or more away to his left; that he noticed that it was going at a fast rate of speed, but concluded that it would either slow down or stop in obedience to the traffic ordinance and traffic stop sign; that he continued on at the same rate of speed, but as the Auburn car got within twelve or fifteen feet of the intersection he concluded that the driver thereof was neither going to slow down nor stop so he accelerated his speed in an effort to clear the crossing, but unfortunately...