Walker v. Rodriguez

• Decision Date: 20 March 1916
• Docket Number: 20696
• Citation: 139 La. 251,71 So. 499
• Court: Louisiana Supreme Court
• Parties: WALKER et ux. v. RODRIGUEZ et al

71 So. 499

139 La. 251

WALKER et ux. v. RODRIGUEZ et al

No. 20696

Supreme Court of Louisiana

March 20, 1916

Rehearing Denied April 24, 1916

SYLLABUS

(Syllabus by the Court.)

Street cars in the city of New Orleans have the right of way; and it is the duty of others in crossing car tracks to look and listen for the approach of cars.

Persons running automobiles through the streets of a city should have them under control, particularly at street railroad crossings, and avoid colliding with street cars, and to stop and not to swerve from their courses onto places where they have no right to be. And if they inflict injuries upon persons who are not shown to have contributed to the accident, they will be held responsible in damages for injuries thus inflicted.

James Legendre, of New Orleans, for appellants.

P. L. Fourchy, of New Orleans, for appellees.

OPINION

SOMMERVILLE, J.

Plaintiffs are colored persons, the parents of Ida Walker, a girl 17 years of age, who, with a companion, was walking in Canal street, January 5, 1913, about 8 o'clock in the evening, when she and her companion were knocked down by an automobile, being driven by one of the defendants, Rene Rodriguez. Her right foot was crushed beneath one of the wheels of the machine. The navicular bone and the necks of the second, third, and fourth metatarsal bone were fractured. And plaintiffs have asked for judgment in damages in the sum of $ 6,050.

The defendants, Rene and Albert Rodriguez, excepted on several grounds, which exceptions were properly overruled. And, as they have not been urged in oral or printed argument in this court, they will be considered to have been abandoned.

The defendants answered, denying the allegations contained in plaintiffs' petition, and averred that if an accident happened to plaintiffs' daughter, at the time and in the manner set forth in the petition, it was unavoidable; and, if not unavoidable, then it was the result of contributory negligence by her.

There was judgment in favor of defendants, and plaintiffs have appealed.

The testimony on behalf of plaintiffs shows that their daughter, with a companion, was crossing the neutral ground in South Rampart street, at the intersection of Canal street, when plaintiffs' daughter, who will hereafter be called the plaintiff, observed a lake end car, coming down Rampart street, and she said to her companion: 'Hurry! Let us get out of the way of the car.' And he said, 'All right.' They stepped from the neutral ground onto the roadway in South Rampart street, going in the direction of the sidewalk on the east, or river, side of that street. They, plaintiff and her companion, did not see or hear the automobile coming behind them, and going in the direction of the river; and they had no reason to expect that an automobile going in that direction would have left the roadway in Canal street, and have crossed the neutral ground in South Rampart street, and run onto the roadway in South Rampart street, where they were walking. Defendants have failed to prove any contributory negligence on the part of plaintiff.

The defendants, and their witnesses, claim that they were in Canal street, on the roadway, when they observed a lake end train moving on the neutral ground of Canal street as it was turning into South Rampart street, and that they veered from their course to avoid a collision with the train; and they argue that...