Worthy v. Pate

• Decision Date: 10 June 1929
• Docket Number: 461
• Citation: 11 La.App. 39,122 So. 727
• Court: Court of Appeal of Louisiana — District of US
• Parties: WORTHY v. PATE

122 So. 727

11 La.App. 39

WORTHY v. PATE

No. 461

Court of Appeals of Louisiana, First Circuit

June 10, 1929

Appeal from the Parish of East Baton Rouge. Hon. W. C. Jones, Judge.

Action by Foster Worthy against Johanna Pate.

There was judgment for plaintiff and defendant appealed.

Judgment reversed dismissing plaintiff's demand.

Judgment set aside.

Chas A. Holcombe, of Baton Rouge, attorney for plaintiff appellee.

Breazeale and Sachse, of Baton Rouge, attorneys for defendant appellant.

OPINION

ELLIOTT, J.

Foster Worthy claims of Mrs. Johanna Pate, wife of Elvin Pate, $ 232.05 as damages caused in a collision between his own automobile, while being driven by himself, and that of Mrs. Pate, while being driven by her.

The collision occurred about 7:30 A. M. on April 9, 1928, at the intersection of Adams and Nebraska Streets, in the City of Baton Rouge.

The intersection is not within the incorporated limits of the City.

The plaintiff was in Adams Street going east. The defendant in Nebraska Street, going north.

The plaintiff alleges and testifies that as he came within about 15 or 20 feet of the intersection, driving at a rate of 12 or 15 miles an hour, he slowed down, sounded his horn, and then proceeded to cross the intersection first. That defendant was, at the time, coming toward the intersection, and only 15 or 20 feet distant from it, at the rate of 25 or 30 miles an hour.

Plaintiff's wife, in the car with him, supports her husband in his contention that he was the first to enter the intersection.

The defendant alleges and testifies that she entered the intersection first. That driving about 18 miles an hour she slowed down and sounded her horn as she came near the intersection, and then proceeded to cross. That an obstructing fence prevented her seeing west up Adams Street, the direction from which plaintiff was coming, until she got within about 2 feet of the intersection. But in another place she admits that she saw the plaintiff as he was coming down the hill.

We quote her testimony on cross-examination to show her contention as to why she did not stop:

"Q. You were too close to him to stop?

"A. He was too close to me to stop. It was his business to stop, because he hit me and I turned toward the Highland road, and he knocked me in the ditch, his car falling on top of mine.

"Q. Why couldn't you see him before you got to the intersection?

"A. There is a fence there.

"Q. You knew the fence was there as you approached the intersection?

"A. I know I had blowed and I seen him coming down the hill there. I didn't think he was coming down the hill that fast."

The defendant called a witness to support her contention that she was first to enter the intersection. The witness saw the occurrence, but he admitted on...