Smith v. De Los Reyes

Bjr WILLIAM A. HERI, Judge.

She defendant has appealed from a Judgment awarding plaintiff damages as prayed for in the sum of $172.00, for injuries te plaintiff's automobile. There is no dispute as to the extent of the damages, the sole question for determination being one of faat going to establish the negligenoe of plaintiff or defendant. She suit arises from a collision between defendant's Perd Sedan and plaintiff's Soripps-Booth Coupe, which ooourred en Sunday noon, August 13, 1921, at the corner of Bourbon and St. Ann Streets. She weather was raining and the street wet. Each of the litigants claims that the other negligently oellided with his ear and that each was guilty of violating the oity ordinance by exoeodlng the speed limit. Plaintiff also charges defendant with additional negligenoe in that ne failed to oome to a full stop before continuing out St. Ann Street and across Bour-ben Street, the latter street being a one-way, right-of-way street.

She evidence is most conflicting except in respect to the location of the oars after the collision. All parties agree that after the collision plaintiff's oar continued in an .angular direction striking a post on the lower, wood corner of Bourbon and. st. Ann Streets, and the defendant's car was headed around into and oont-imiad • down Bourbon Street for a distance of nearly a third of a block. One of the defendant's witnesses swears that after the collision she' saw plaintiff s oar with its radiator against the post. Both of plaintiff's witnesses oonfirn this fact and none of defendant's witnesses .have denied it. The nature of the damages to plaintiff's oar dearly indicate that it either oollided with .or was struok by two different objeots. It is most apparent that the object which, caused the damage to the right'siav or plaintiff's oar could not have been the same objeot iwhlch 'damagea. plaintiff's radiator, and-since the radiator is shown to Rave teen resting head-on against the post, it must he plainly seen that the post and not defendant's oar caused this particular damage, There is no doubt that the two oars collided, hence the image, that is, the damage to the right side of plaintiff's ear, is hound to have been caused by defendant's collision with plaintiff's ear. The damage to the left side of defendant's oar and its ultimate direction down Bourbon Street, convinces us that it was defendant's car which ran into plaintiff's car while the latter was taking a left oblique direction in its effort to avoid a collision with defendant's oar. Moreover, one of defendant's witnesses who was seated alongside of the driver and in the front of defendant's car, swears that at the moment of the collision she almost went through the front glass and that she hit he.r head. This could not have been the case if defendant's car had been hit on the side by plaintiff's on-coming oar.

This brings us to the consideration of the proximate cause of the accident and.also to the question as to which of the litigants', if either, negligence may be attributed. The defendant in his answer as well as in the evidence offered on his behalf,. admits that his oar was not brought to a full stop on St. Ann Street before crossing Bourbon Street. This was clearly a violation of the city ordinance offered in evidence, and unless defendant can show plaintiff was in other ways also negligent or failed, when able, to avoid the accident, plaintiff must recover. See Brooklyn Cooperage Co. v. Paul Piazzo, No. 8820 Orleans Appeal. (Decided January 22, 1923).

The only Manner in whion defendant attempts to fix the responsibility on plaintiff is by alleging and attempting to prove that plaintiff's oar was travelling down Bourbon Street at a terrific speed of some thirty or thirty-five miles an hour. Both of plaintiff's witnesses swear that his oar was not going over twelve to fifteen miles an hour. There is contrary evidenoe in the record' given by defendants witnesses, all of whom were occupants of defendant's car and all being young girls, inexperienced in driving automobiles, each of them admitting that they were more or less excited at the time of the aooident. We are not inoliied to give much weight to their testimony as to- the speed of plaintiff's oar. The plaintiff also charges that defendant's oar was exceeding the speed limit, but we do not believe that either oar was violating the ordinance in this respeot. We do not find from the record before us that plaintiff was in any manner guilty of contributory negligence or that he could have avoided the accident, despite the evident negligence of defendant. Shore is nothing before us which would Justify conclusions oontrary to those of the trial court.

II IS, IHEREFORE, ORDERED, ADJUDGED ARD DECREED that the Judgment herein appealed from be and the same hereby is affirmed, at defendant's costs in both '"urts.

JUDGMEHI AFFIRMED.

AERIL 2, 1923.