Cazeaux v. New Orleans Public Service, Inc. , 16 La. App. 541 ( 1931 )

JANVIER, J.

Plaintiff seeks to recover from the local street car company for damage sustained by her through the death of her husband, which she alleges was caused by the negligent operation of a street car by a motorman employed by said company.

The court below, after hearing the evidence, rendered judgment dismissing plaintiff’s suit, and from that judgment plaintiff has appealed. The matter was before us once before on appeal from a judgment of the trial court sustaining exceptions of no cause of action. On that appeal we reversed the judgment of the trial court and held that the allegations of the petition, if true, did disclose a cause of action. See Cazeaux v. N. O. Public Service, Inc., 14 La. App. 320, 124 So. 685.

The accident occurred in St. Peter street very near to the upper river corner of the intersection of that street with Broad street. Broad street is very wide, has a neutral ground in the center with a paved driveway on, each side, and on the neutral ground is located a street car track of defendant company. St. Peter street crosses Broad, and the street car track at that corner turns from the neutral ground of Broad into St. Peter. A street car going up Broad street must turn to its left at St. Peter and continue on its course in St. Peter street towards the Mississippi river. This makes it necessary that a street car pursuing such a course, which was the course which was being followed by the car involved in the accident with which we are now concerned, must cross the river side driveway of Broad street before entering St. Peter.

Cazeaux, the deceased, evidently intended boarding the street car, and for that purpose had stepped from the sidewalk on the upper side of St. Peter street .a few feet into the roadway, so that, when the car should complete the turn into St. Peter street and come to a stop, he might be sufficiently near to board it.

As the car on its uptown course neared the St. Peter street turn, there were at least four automobiles proceeding downtown on the river side driveway of Broad street, and it was thus necessary that these stop for the car, or that the car stop and allow them to pass. The first of the automobiles was a Ford coupe, which was being .driven about four feet from the neutral ground of Broad street. Behind it and a little to the right was a truck driven by one Albert Bazile. Behind these two vehicles were two others.

As the street car commenced to turn from Broad into St. Peter street, apparently there was some danger of a collision between it and the approaching Ford coupe, as the attention of most of those who later testified in the case was attracted by the ringing of the gong of the street car.

The Ford came to a stop after slightly turning to the right, and the street car then, at a speed of from four to five miles an hour, continued to cross the Broad street driveway and was just entering St. Peter street, when the truck, which had been following the Ford, and which was being driven at a speed approximating twenty miles an, hour, was swerved by its driver to the right into the same direction as that in which the street car was then proceeding, the chauffeur thereof evidently realizing that he could not bring it to a stop and apparently hoping to avoid a collision with the street car by driving alongside it into St. Peter street.

Unfortunately, however, Mr. Cazeaux was standing directly in the path of the oncoming truck, which struck him, knocked him to the ground, and then crashed into the right side of the street car.,

Both vehicles came to a stop a few feet beyond the spot at which .the unfortunate man had been standing.

In her petition plaintiff charges that her husband had been standing in Broad street and not in St. Peter street, and that this was made necessary by the bad condition of the surface of the latter street, which she charges was so muddy that a prospective passenger could not stand thereon. The evidence, however, overwhelmingly rehuts her allegations on this point and leaves no room for doubt that the actual facts were as we have outlined them. It is charged that the motorman of the street car was negligent in permitting the car to continue on its course across the Broad street driveway without affording to vehicles on that driveway time to cross ahead of it, or to come to a stop, and that he was also at fault in that, even if the driver of the truck was negligent, nevertheless he (the motorman), by exercising caution, could have brought his slow moving street car to a stop, which would have afforded Cazeaux an opportunity to. step out of the path of the on-coming truck by jumping on to the tracks ahead of the street car.

Defendant maintains that deceased was guilty of negligence on his own part in standing in the street when it was not necessary for him to do so, and also that the motorman was in no way at fault in as.suming that the truck could dd as the automobiles had done and could stop without the necessity of turning into St. Peter street.

There is one very important fact which is scarcely in dispute, and that is that the brakes on the truck in question were so defective as to be almost worthless. The evidence shows that tests made immediately after the accident disclosed that the brake pedal could be> depressed entirely, with little, if any, noticeable effect.

The questions presented for our determination are. the following:

First. "Was the motorman at fault in creating or in contributing to the dangerous situation?

Second. After the danger was apparent, was there an opportunity for the motorman to avoid the accident?

Of course, if the motorman was at fault in creating or in contributing to the danger of the situation, the question of whether he had or had not the last clear chance to avoid the accident would. be of no importance, because where there are joint tort-feasors, as a result of the negligence of two or more of whom another person is injured, neither of the joint tort-feasors can be heard to say, in defense of an action by the injured party,- that .the other negligent party had the last clear chance to avoid it. If both contributed to the ultimate result, both would be liable to the third party. Shield v. F. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080. In order, therefore, for defendant to defeat the action by plaintiff in this case, it is necessary that defendant show either that its motorman was not at fault at all and did not contribute to the accident, or that, after the dangerous situation had come into existence and .after there was no longer an opportunity for the motorman to avoid it, the deceased Cazeaux could have done so by the exercise of due care on his part. We first will consider the question of whether thg motorman was guilty of negligence.

We cannot lose sight of the fact that the leading car, the Ford coupe, was. brought to a stop without collision with the street car. If it had crashed into the street car, or if the truck following the coupe had crashed into it, as a result of the necessity of coming to a sudden stop, and if that necessity had been caused by the carelessness of the motorman in running his car across the thoroughfare in the face of approaching traffic, then it would be reasonable to assume that the motorman’s negligence was the cause of the collision. But here we find that the Ford at the head of the line of traffic stopped. The truck followiñg did not crash into it, but succeeded in passing around it. It did not continue on its. course down Broad street and did not crash into the street car from that direction, but turned to its right, proceeded across the remaining width of Broad street, and did not strike the street car until it had traveled some 25 or 30 feet more than the Ford traveled. The motorman, even if he did not display due regard for the rights of the Ford, was certainly justified in assuming that, as the Ford was. able to stop, the vehicles following could do so, since they had considerably more available space than had the Ford. He could not be charged with knowledge of the defective condition of the brakes of the truck. He was justified in. assuming that those brakes were in reasonably good condition, and it is very evident that, had the brakes been in good condition, the driver of the truck would have stopped it and would not have found 'it necessary to turn into St. Peter street. The motorman, ‘then, did not, by continuing across the street, create or contribute to the danger of a collision with the truck, which danger was caused, as we have said, solely by the negligent operation and defective condition of the truck.

However, even though the danger came into existence solely as the result of the negligence of some one else, still the defendant company would be liable for the resulting damage, if, after the danger was imminent and apparent, the motorman still had an opportunity to prevent the fatal result, for it is the duty of an employee toward a prospective patron of his employer to do all that is reasonably possible to assist in extricating the patron from danger, even though the danger may not have been created by the employee. Grennon v. N. O. Public Service, Inc., 10 La. App. 641, 120 So. 801.

But the evidence here shows that when the truck, going at a rather high speed, turned to its right in an effort to pass alongside the slow moving car, the front end of the car had already entered St. Peter street, so that the truck must have approached the street car to some extent from its rear, or, at least, from a position which would have prevented the motorman seeing it, unless he was facing almost towards the rear of the car, as there was no reason for him to do, since, while it is true that a motorman must see such occurrences as take place either in front of the car or within a reasonable distance away from the track (Payette v. N. O. Public Service, Inc., 10 La. App. 300, 120 So. 483), surely he need not look to his rear to see that no fast moving vehicle coming from that direction crashes into his. ear.

That the truck approached the street car more or less from its rear and after it had almost completed the turn is also shown by the testimony of the motorman, who states that, when he first noticed; the truck, the front end of the street car “was about two feet past the gutter of the river side” of Broad street and the truck was. “about 20 feet from the intersection.”

There is no doubt at, all that the street car stopped almost immediately and that it did not strike -the deceased. Therefore, when it became apparent that the truck was unable to be stopped, the front end of the street car was already practically abreast of deceased, and it stopped immediately thereafter. Nothing the motorman could have done would have been effective in preventing the tragedy which followed.

Since we find that the motorman was not at fault either in creating or contributing to the dangerous situation, or in failing to avoid the accident after the danger of it became apparent to him, it is, of course, unnecessary that we discuss the question of whether or not the deceased himself was guilty of negligence on his own part.

The judgment appealed from is affirmed.