author: ODOM, J.

text:
    No. 3504
    Second Circuit
    BUCKLEY v. FEATHERSTONE GARAGE, INC.
    (July 1, 1929. Opinion and Decree.)
    (November 4, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

This is a damage suit growing out of a traffic accident which occurred in the daytime at the intersection of Texas and Edwards Streets, in the City of Shreveport. The plaintiff was walking east on the north side of Texas Street and, as she stepped out into Edwards Street, which intersects Texas at right angles, she was struck and injured by a taxicab belonging to the defendant, said cab going north on Edwards Street. Plaintiff specifically alleged that she was guilty of no negligence, that she entered the crossing on the proper light signal, but charges that the driver of defendant’s taxicab was negligent in several respects i. e., that he was driving at a fast and reckless rate of speed, that he entered the intersection on the wrong traffic signal, that he swerved to the left to avoid striking another car, that he failed to keep a proper lookout for pedestrians, that the brakes on the taxicab were not applied, or if they were, they failed to take effect, and that the driver made no effort whatsoever to. avoid striking her after entering into the intersection.

Defendant, in answer, specifically denied, all acts of negligence charged against it, and set up that plaintiff’s injuries were due solely to her own fault and negligence, and especially charged that she herself entered the intersection on the wrong traffic signal.

The district judge held against plaintiff and rejected her demands. She has appealed.

OPINION.

The accident took place in daylight at the intersection of Texas and Edwards Streets in the city of Shreveport where the city maintains a traffic light signal for the purpose of regulating and controlling traffic at the crossing. Each of the litigants has charged the other with negligence in disregarding the traffic signal lights and the ordinance of the city which prescribes the duties and obligations of those using the streets at intersections where these traffic light signals are maintained. The question of negligence depends mainly upon whether these signals and the ordinance of the city were violated.

In the operation of these signals, three different colored lights are used — red, yellow and green — each light being flashed on through a different dial in the same rectangular box suspended over the center of the intersection, the lights being operated by electricity. Across the dial over the red signal is the word “stop;” across the dial over the yellow signal is the word “caution”; and across the dial over the green signal is the word “go.” All of which means, as is well understood in the city, that when either a' pedestrian or one driving a vehicle of any kind reaches an intersection where the red light is on, he must stop, and when the green light is on, he may go forward. The changing of these lights is preceded by the ringing of a signal bell, which can always be heard over the noise of the traffic. The moment the bell begins to ring, the red or green light, as the case may be, goes off and the yellow or “caution” light is flashed on. The bell rings for five seconds and the caution light remains on for that time. When the bell ceases, the yellow or caution light goes off and the red and green lights, showing at right angles to each other, are flashed on and remain on for 30 to 40 seconds. Under the city ordinance, no one is permitted to enter the intersection, except when the green light is on. The interval of five seconds between the moment the bell begins to ring and the caution light goes on, and the moment the bell ceases and the caution light goes off, is allowed to enable all those, both pedestrians and drivers of vehicles who have entered the intersection on the green signal and are caught therein when the signal for change is given, to clear the intersection. In other words, the moment the signal for a change of- lights is given by the ringing of the bell and the flashing on of the yellow or- caution light, all traffic must halt, except that which is then within the intersection. It is a violation of the traffic ordinance and rules to enter the intersection while the caution light is showing.

Disclaiming any negligence on her part, plaintiff alleges that she entered on the green light and that defendant’s driver entered the intersection on the red signal.

The district judge, in an exhaustive written opinion after a most critical analysis of all the testimony, held that plaintiff had failed to prove by a preponderance of the testimony that she had entered the intersection on the green signal, but held that it was proved beyond question- that defendant’s driver entered on the proper signal. We go further than did the district judge and hold that the testimony shows that the plaintiff entered the intersection, not on the green, but on the caution signal.

Plaintiff was going east on the north side of Texas Street; defendant’s driver was going north on Edwards Street. She was asked to tell just how the accident occurred, and she said:

“Well, the signal bell rang, which gave me the right to cross over Edwards Street, and there were quite a number of people crossing there at the same time, and I happened to be the first one to step off of the curb, and I heard the brakes grinding, and looked up, as the wheel caught, of course, I thought it was right on me * * * >>

She later said more than once that she did not enter until the green signal light came on, but the latter statements were made in response to suggestions — if not leading questions by her counsel. The above quoted statement was made in answer to one of the first questions propounded by her counsel. Plaintiff was then questioned at length concerning her injuries and the present state of her health, after which her counsel again interrogated her with reference to the accident. On page 20 of the testimony, he asked her:

“Now, Mrs. Buckley, when you attempted to cross Edwards Street, just prior to the accident, was the green light on — what signal was on?”

She answered:

“The green signal, giving me the right to cross Edwards Street.”

The above testimony creates the decided mpression that she was prompted in saying that the green signal was on when she entered the intersection, by the suggestions made by her counsel.

Furthermore, plaintiff was asked if she saw a woman acquaintance on the opposite side of the street, crossing towards her, and she said:

“* * * I said that I saw someone over on the other side that attracted my attention, and I remember distinctly that she moved towards me, at the same time that I moved off of my side of the curb.”

The lady referred to was Mrs. Cross, who was called as a witness for plaintiff. Mrs. Cross testified that she was on the opposite side of the street, waited for the green signal, and that as she was crossing, she met plaintiff about the center of the street. Mrs. Cross’ testimony corroborates that of plaintiff, but for one fact which is undisputed, and that is that plaintiff was delayed in crossing the street by her contact with the automobile which shoved her slightly and caused her to sit for a moment on the bumper, after which she proceeded on her way across the street. If the two had entered the" intersection at the same time, they would have met near the center; assuming that they were walking at the same rate of speed, provided that neither was delayed. But plaintiff was delayed — still they both say they met near the center of the street. So that, if Mrs. Cross started on the green signal, and she says she did, plaintiff must have started before the green signal came on, and that is what must be inferred, we think, from plaintiff’s opening statement:

“Well, the signal bell rang, which gave me the right to cross over Edwards Street.”

There is no other testimony in the record directly touching the point. But the testimony of McKoin, the cabdriver, taken in connection with some of the physical facts, corroborates the theory that plaintiff entered the street before the green light came on. McKoin testified that he entered Texas Street, going north on Edwards Street, while the green light was on, and that the signal bell rang and the caution light came on when he was one-third of the way across Texas. Texas Street is 75 feet wide from curb to curb. He was, therefore, 50 feet from where the accident occurred. He was going about 15 miles per hour, or approximately 20 feet per second. But, when McKoin reached a point near the north edge of the street, he got behind another car which was proceeding in the same direction, but more slowly, and his speed was slightly changed on this account. Taking these figures and estimates as being approximately correct, it took the cab about three seconds to go from the point where it was when the signal bell rang and the caution light came on, to the point where the accident took place, and McKoin says the bell stopped ringing and the green signal to cross Edwards Street came on after he struck plaintiff. In other words, he had cleared the crossing before the Edwards Street green signal came on. Admittedly, when he reached the north side of Texas Street, or the “white lines,” plaintiff was out in the crossing. She says she had made a bout three steps when she heard the grinding of brakes, looked up, and the cab was almost upon her. All the witnesses say that the cab stopped after striking plaintiff at the “white lines” across Edwards, or on che passageway marked off for pedestrians.

The testimony of McKoin on this point is in line with that of Mrs. Cross, who says that she entered the street from the opposite side when the green light came on, and that she met plaintiff in the middle of the street after the accident and that she saw the cab there. Our conclusion is, and we hold, that plaintiff was standing on the curb waiting for the signal to go, and that as soon as the bell began to ring and the caution light came on, she entered the street, without waiting for the green light to come on. As a matter of law, that was negligence on her part.

These traffic signals are operated for the safety and protection of those who inhabit and use the streets. They are used to help — not to hinder traffic. The city ordinance regulating traffic at crossings where these signals are used prohibits an entrance into a street crossing, except on a green signal. Plaintiff violated the ordinance, and, it is generally held that a violation of the traffic regulations of a municipality, so far as they embody express commands, is negligence per se.

It is unfortunately true that, notwithstanding the plain letter of the ordinance prohibiting it, and that there is written in bold type across the yellow dial the word “caution,” people do constantly enter crossings the moment the signal bell begins to ring and while the caution light is on. These caution signals are intended to subserve the same purpose as a “stop, look and listen” sign at. a railroad crossing — still people continue to “rush the lights” and “rustle the trains.” But, when they do so they are guilty of gross negligence. We therefore find, as did the district judge, that defendant’s driver entered the intersection on the proper or green signal. It was therefore not only his right, but his duty, to clear the crossing after the signal for the light change was sounded, and he was guilty of no negligence in that respect.

Plaintiff alleged that the driver of the cab was negligent in that he was going at a fast and reckless rate of speed, and that the brakes were either defective or were not applied. The testimony does not sustain these charges. The cab was going about 15 miles an hour, which is not unusual or excessive considering that it had entered on the proper signal, and it was the driver’s duty to clear the crossing within the five-second period. The brakes were in perfect condition and the cab was stopped within a few feet after they were applied.

It is alleged further that the driver was negligent in swerving his car to the left in order to avoid a collision with another car. That allegation is not proved. The driver did swerve to the left near the center of Texas Street, but the traction company was repairing its double track in the center of Texas Street and had closed the right-hand side of the driveway, which made it necessary for all vehicles going north on Edwards to drive to the left.

The other points of negligence charged are that the driver of the cab failed to keep a lookout for pedestrians crossing Edwards Street and that he made no effort whatsoever to avoid striking her “after entering the intersection.” These two involve the last clear chance doctrine which counsel strenuously urge in plaintiff’s behalf, as well as the duty which the driver of a vehicle owes to a pedestrian who enters an intersection on the wrong light signal, conceding that the vehicle entered on the proper signal. Counsel for plaintiff say in brief:

“From our viewpoint, it is immaterial whether plaintiff entered the intersection properly or improperly as to signals, because defendant’s liability is clearly established in the doctrine of the last clear chance. For this reason, we shall not discuss the evidence as to plaintiff’s negligence.”

Now the testimony shows that plaintiff entered the street on the wrong signal and was, therefore, wrongfully in the street at the time she was struck and was therefore guilty of negligence. The testimony further shows that the driver entered on the right signal and was therefore rightfully therein and had the right of way. Counsel for plaintiff, in oral argument and in brief, say that the district judge held that under such circumstances the driver owed plaintiff no duty at all- — • that it was not his duty to look ahead, the result of such ruling being to deprive plaintiff of her1 right to recover under the last clear chance doctrine. We do not think the district judge intended to hold or did hold that by reason of the fact that the driver of the car was rightfully in the street and had the right of way, he was absolved from all duty to keep a lookout ahead and to avoid, if reasonably within his power to do so, injury to those who might be wrongfully therein. There may be some expressions in the opinion which might so indicate, but his opinion as a whole does not so impress us.

An automobile moving forward is a dangerous instrumentality to those who happen to be in front of it, and, in our opinion, the duty of the driver to look ahead never ceases. Even though rightfully on the highway and the right of way be his, lie must still look. In a city where traffic is controlled by the signal light system, neither pedestrians nor vehicles are permitted to enter an intersection on the wrong signal, and to do so is negligence. But the driver of a vehicle who is rightfully in the intersection owes a duty to those who may be negligently therein, and that duty is not only to avoid injuring them when and if their peril is discovered, if he can reasonably do so, but further, to use due diligence to discover their presence. It has been held that a railroad company owes no duty to trespassers, except to use due care to avoid injuring them after their presence on the right of way has been discovered. But those who inhabit public streets and highways are not trespassers. They have a right to be there and, even though they negligently exercise that right, yet the driver of an automobile owes to them the duty of using due care to discover their presence.

Under the traffic light system, a motorist who is proceeding under the proper signal should not be held to that same high degree of care and vigilance as if no such system prevailed. He has the right to assume that the signals are understood and will be observed, and he is not required to anticipate that pedestrians will violate the ordinances and rules and enter a crossing on the wrong signal. The danger at such crossings is less than if there were no such signals, and therefore, less care is exacted. A motorist must use such diligence and care as is commensurate with the dangerous character of the locality. But even though the danger be slight, he is not absolved from the duty to look ahead. We said in Jones vs. Rock Island Ry. Company, 4 La. App. 457 (464);

“The precautions to be adopted and the steps to be taken in aid of safety increase as the danger of accident and injury increases.”

That was a railroad case, but the same rule applies to motorists.

In a comparatively recent case, that of Ivy vs. Marks, 87 So. 813 (14 A. L. R. 1173), the Supreme Court of Alabama held that the fact that a pedestrian is crossing a street diagonally at a place other than a street intersection, which is forbidden by ordinance under penalty, does not relieve the driver of an automobile upon a highway from the duty to maintain a lookout for him.

Roy et ux. vs. Israel, 3 La. App. 311;

Burvant et ux. vs. Wolfe, 126 La. 787, 52 So. 1023; see notes in 14 A. L. R. 1176.

Under the last clear chance doctrine, an injured person may recover, in a personal injury suit even though he has been guilty of negligence in exposing himself to danger, if the defendant knew of such danger and could have avoided the injury by the exercise of ordinary care, and fails to do so.

Grand Trunk Ry. Co. vs. Ives, 144 U. S. 408, 36 L. Ed. 485 (U. S. Sup. Ct. Rep. Vol. 12, p. 679), 20 R. C. L. 138;

29 Cyc. 530;

McClanahan vs. V. S. & P. Ry. Company, 111 La. 781, 35 So. 902;

McGuire vs. V. S. & P. Ry. Company, 46 La. Ann. 1543, 16 So. 457;

Harrison vs. Louisiana Western R. Company, 132 La. 761, 61 So. 782;

Jones vs. Mackay Tel. Cable Co., 137 La. 121, 68 So. 379.

Plaintiff was negligent in going into the crossing as she did. She exposed herself to danger and placea herself in a position of peril. Even so, if defendant’s driver knew of such danger or if by the exercise of reasonable care and prudence he could have seen plaintiff in her position of peril and could have avoided the injury and failed to do so, defendant would be liable.

But there is no room here for the application of the last clear chance rule. The driver of the taxicab had no last clear chance to avoid striking plaintiff. She stepped from the curb into the street almost immediately in front of the moving car and had taken only about three steps out into the street when she was struck. She herself says that from the time she stepped from the curb until she was struck was a matter of seconds. It was almost a momentary happening. Counsel for plaintiff argue that it was the duty of the driver to be looking ahead, and that, we think, is true. But, if he had been looking ahead, as he says he was, and had been watching both the street ahead of him and the curb, he would not have seen plaintiff in the street, but would have seen her and others standing on the curb waiting for the signal to go. There was no occasion for him to slacken his speed or apply the brakes sooner than he did, because there were no pedestrians in the street ahead of him and he had the right of way, nor were there any pedestrians moving towards the crossing. But, almost simultaneously with his reaching the place where the collision happened, plaintiff stepped out in front of the car. It is impossible to compute the small fraction of time that it took plaintiff to make three steps from the curb to where she was struck — yet, that was the length of time which elapsed from the moment she entered the crossing until the collision took place, and that was exactly the period of time the driver had in which to discover her peril after she started across. If he had seen plaintiff the moment she stepped out, he had no time to stop before reaching her, because it necessarily took some fraction of time for him to use his muscles and apply the brakes and some fraction of time for the brakes to take effect. The brakes were applied before the car reached plaintiff. She says she did not look and did not see the car but heard the grinding of the brakes, which caused her to look up, and then the car was almost upon her.

The judgment appealed from is correct and is accordingly affirmed, with all costs in both courts.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3519
    Second Circuit
    DENNIS v. SHREVEPORT CREOSOTING CO.
    (July 1, 1929. Opinion and Decree.)
    Morgan & Naff, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff sues under the Workmen’s Compensation Act for $20 a week during disability, not exceeding 400 weeks, and for $250 for medical treatment. He alleges that on May 18, 1928, he was employed by defendant and in the course of his employment was assisting fellow workmen in carrying a heavy steel truss and his foot slipped and his back was jerked and wrenched, causing traumatic arthritis of the lower lumbar spine and right sacroiliac joint coupled with a rotary lateral displacement of the fifth lumbar vertebra and permanently totally disabling him to do work of any reasonable character. He further alleges that he was earning $6 .a day and working seven days in the week.

Defendant admitted that plaintiff complained of his back being strained and avers that it sent him to its physician for treatment and that he was treated by the physician and discharged as cured and capable of doing any work of a reasonable character.

It further avers that if plaintiff’s back was injured he entirely recovered from the injury within three weeks thereafter and was again able to do and did do-manual labor as well as before the injury.

In the alternative, and only in the alternative, it further alleged that if plaintiff was still disabled it was not at all owing to the accident but solely to an old and chronic condition of diseased tonsils and teeth from which plaintiff was suffering at the time of the accident and long prior thereto.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $20 per week during disability, not exceeding 400 weeks, the first payment being decreed due as of May 25, 1928, with legal interest on each payment from its maturity until paid, and costs of suit.

Prom this judgment the defendant appealed.

OPINION

Only questions of fact are presented for our determination, namely: whether plaintiff is disabled, as claimed, and, if so, whether the disability was caused by the injury sustained on May 18, 1928.

Doctor Guy A. Caldwell made a physical examination of plaintiff and reported, his report being dated August 23, 1928.

“Five days ago, had tonsils removed. Teeth x-rayed August 17th, and found to be negative. Several years ago patient was working on some steel construction work and a chip of steel flew off and entered the neck where it became embedded. It was x-rayed and examined by various physicians who decided that it would be unwise to attempt to remove it, as it lay against the trachea and alongside important nerves and blood vessels in the neck. Patient says that it continues to give him trouble, causing pain and drawing in the neck, some difficulty in swallowing and on certain movements of the neck. Patient walks without assistance, without noticeable effort to protect the back. There is no lateral deformity of the spine, but there is a prominence of the muscles in the back, more marked on the right side. Shoulders are somewhat rounded, and the lumbar region somewhat flattened. Forward bending is accompanied by limited motion in the lumbar spine, with definite muscle spasm of the right lumbar groups. There is an acute tenderness over the fifth lumbar spine and the lumbo-sacral ligament on the right side, and some tenderness on the left, just below the costovertebral angle. Rising on the toes and dropping on the heels produces intense muscular spasm and sickening pain, so that the patient was forced to lie down for some minutes. The muscles are relaxed, and the tenderness is not so great over the fifth lumbar spine where it is quite marked. All hip movements are free and well performed. There is no tenderness over the sciatic nerve or its distribution. X-ray examination of the pelvis shows no injury to the hip joint or the ilium. On the right side, the lower portion of the sacroiliac joint shows an area of absorption and roughening together with an effort at none proliferation in the iliac portion. Antero-posterior view of the lumbar spine, shows distortion of the fifth lumbar vertebra and its articulation with the sacrum. On the right side, the transverse articulation is in approximately the normal ¡position and relation, but on the left side it is considerably lower and distorted. The left articulation and the lamina, are very much larger, thicker, broader than the right. The transverse process on the right apparently impinges against the sacrum. The lumbar vertebrae otherwise appear normal and show no distortion or disease. Lateral plates of the lumbar spine show no definite displacement or disease.
“X-Ray Diagnosis.
“1. Traumatic arthritis of the right sacroiliac joint.
“2. Rotary lateral displacement of the fifth lumbar vertebra.
“X-Ray of the Neck.
“X-ray of the neck shows the presence of a foreign body in the tissues to the left side of the middle and deeply seated alongside the vertebral colunm. This foreign body is about 1 inch long by 1-16 inch thick and of the consistency and density of steel.
“Diagnosis.
“Foreign body (probably a piece of steel) embedded in tbe tissues of tbe neck near the spinal column.
“Clinical Diagnosis.
“1. Arthritis of the lower lumbar spine and right sacroiliac joint, ipost-traumatic.
“2. Rotary lateral displacement of the fifth lumbar vertebra.
“Opinion.
“Patient’s present condition is one of total disability for manual labor. This is due to an injury of the sacroiliac joint and fifth lumbar vertebra. There is no evidence of chronic arthritis nor other diseases which might produce the symptoms complained of. Jarring the spine and bending movements of the spine produce pain and muscle spasm which is incompatible with manual labor.”

Doctor E. L. Sanderson testified that he made a physical examination of the plaintiff on September 15, 1928, aided by x-ray plates, and that:

“Q. Doctor, do you know the plaintiff in this case, Robert C. Dennis?
“A. Yes, I do.
“Q. Did you have occasion to examine him lately?
“A. Yes; I examined him on September. 15th.
* # * $ * *
“Q. Just tell the court what your findings were at that time, and just what was done by you in order to. make a thorough examination?
“A. On September 15, 1928, or thereabouts, I examined Mr. Dennis. He gave his age as 43 years. He was supposed to have been injured while in the employ of the Shreveport Creosoting Company, and at the time of this examination — I saw him on several occasions, but at the time of this examination his chief complaints were that his back feels sluggish and that when he strikes his foot against any object or upon getting up he hurts all over. He said he became nervous at times and that it hurts his back to lie in bed and that his left leg becomes tired easily. On physical examination I found that he is sixty-six inches tall, weight 180 pounds. He is well nourished, has a florid complexion, that is, a ruddy complexion; has no swellings or glandular enlargements. His sight is good; his hearing is good. Upon examination of his throat I find that his tonsils have been removed. His gums show to be diseased, and his heart is slightly accelerated, that is, a little bit faster than usual but otherwise normal. His lungs are normal. His prostrate gland is slightly enlarged. His back shows nothing on inspection. His spine is reasonably flexible, but he complains on bending. And those are my physical findings.
“Q. What condition did you find there with the back, doctor, with reference to his ability to use his back for ordinary work?
“A. Well, his back is flexible in all directions. You see, a person’s spine, the only . examination you can -make of. the spine when a person complains of it is as regards its flexibility.
“Q. What does that indicate?
“A. When it is flexible, you cannot reasonably suppose that there is any disease or injury of any consequence.
“Q. Now, it has been testified here by Doctor Caldwell, that he found muscle spasms when Mr. Dennis would drop down from • his toes on his heels. What would you say as to that, doctor, as to that condition?
“A. Well, a great many people, on dropping from their toes to their heels, will have a crick in the muscles of the back. I expect, if you will do so yourself, you will find that to be the case, because when you do that the muscles of the back are the muscles that keep you in balance; they are the balancing muscles when you stand erect; and if you drop on your heels, there would probably be some you might say wavey motion, of the muscles adjusting themselves. But we did not notice any muscle spasm.
“Q. Did you find any condition there that would indicate that he had a permanent or even temporary injury at the time, of his sacroiliac joint, doctor?
“A. There is no external evidence of it.
“Q. Did you have Doctor Adair to make x-ray pictures of this man?
“A. We did.
“Q. Did you examine his reports?
“A. We did.
“Q. Now, taking your physical findings with his, what would you say as to this man’s disability to do work at the time of the examination?
“A. Well, there is nothing in the physical examination, or in the x-ray examination, to indicate disability.
* ***** *
“Q. You have already testified that you had the report of Doctor Adair, and you have shown there that Mr. Dennis has arthritis in the fifth lumbar vertebra and in the twelfth dorsal vertebra; is that correct?
‡ ‡ ‡ ‡ ‡
“A. Well, just summing up his statement, there is what is called lipping of the vertebrae. That is a little spur formation that forms at the edges of the vertebrae, which shows arthritis.
“Q. What would you say was the cause of that arthritis, do.ctor?
“A. In my opinion, arthritis in this part of the body, as well as in most every other part of the body, is due to infection.
“Q. Do you know anything about Mr. Dennis’ history as to any infection or other troubles he has had?
“A. I know he had bad infection in his mouth?
“Q. You say mouth; do you refer to the tonsils?
“A. The gums.
“Q: Did he have infected tonsils, so far as you know?
“A. His tonsils had been removed.
* * Jjc # * *
“Q. Doctor, you testified as a witness in the case of this same plaintiff against the Fortuna Oil Company. If I show you where you testified in that case, in order to refresh your memory, as to his giving infected tonsils, would you remember it?
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“A. I remember now, since my mind has been refreshed, as to my testimony in that case.
* ¡¡S * # * *
“Q. Do you remember examining Mr. Dennis and finding that he had infection of his tonsils?
“A. Yes; he had bad tonsils.
* * * * * *
“Q. Did you have this plaintiff to undergo certain physical movements and muscular movements which would, if he really had the complaint, indicate that complaint at the time?
“Á. Yes; we put him through the tests that would have brought out any serious physical defects that he would have, in the region of the spine.
* ❖ v * * *
“Q. Doctor Scales has testified, from x-ray plates, this morning, that this man had no pus pockets in his teeth.
“A. You mean around the teeth, or the roots of the teeth?
“Q. In his mouth. Now I want to know if your examination showed that he did have any.
“A. It did; and I think I can demonstrate to the court that he has infection around his teeth.
“Q. Let us see you do that?
“A. All right. Come around here. (Here the plaintiff presented himself for demonstration purposes.) Now, let us see. (Plaintiff’s mouth is held open, and the witness uses the end of a penholder for designation purposes.) You take this tooth right here, you can see the pus coming up when you massage it. Here is the pus coming up around that tooth. His teeth are all infected there. Here is an infected tooth; see the pus coming out from behind that gum? (Witness referring to teeth in lower jaw.) See the pus coming out from above that gold tooth there? See the pus right above the gold tooth? There is very distinct infection in this tooth here (lower tooth). See the pus coming from it? Now here is the way they should appear; here is a good, healthy gum, this tooth right here. All of these gums are badly infected, above and below. He ha.s one bad one here, where the gum has retracted, this had gum here. This one is bad.”

The x-ray plates taken by radiologist M. L. Adair and his testimony, are in accord with and support the testimony of Doctor Sanderson.

The opinions of Doctors Caldwell - and Sanderson, both eminent physicians and surgeons, as to whether - plaintiff is seriously disabled and, if so, the cause of the disability, differ- very widely, but both witnesses agree that at the time of the trial plaintiff had a severe malady in his back.

Doctor Sanderson gives it as his opinion that the malady was caused by infection of plaintiff’s gums and teeth.

Doctor Caldwell is of opinion that it is the result of the wrench or sprain in plaintiff’s back.

The trial judge accepted the opinion of Doctor Caldwell in preference to that of Doctor Sanderson, and that opinion is supported by the testimony of Doctors John L. Scales, Sr., and John L. Scales, Jr., both of whom gave it as their opinion that the condition of plaintiff’s teeth and gums could not have caused the trouble in his back.

Doctor Scales, Jr., testified:

“Q. Have you examined the plaintiff in this case, Mr. Dennis?
“A. I have.
******
“Q. You made an examination with reference to his teeth and gums, did you not?
“A. I did.
"Q. What did you find?
“A. I found a gold crown on the upper central and lateral and also the right cuspid. Inlays on the lower left lateral and cuspid. Some evidence of gingivitis and that did not indicate the condition of the gums and teeth. Some evidence of what is commonly known as pyorrhea in the lower molar and bicuspid region, especially of the upper left molar and second bicuspid region. The teeth were sound; no loose teeth; no cavities; no devitalized or so-called dead teeth — that is, teeth that had the nerves removed and the root canals filled. In my estimation—
“Q. Did you take x-ray pictures of them?
“A. I did.
“Q. What did it show?
“A. I took twelve exposure pictures. These pictures showed just what I have given from my readings — that the teeth apparently are s.ituated in sound bone. That is, the bone around the teeth is not destroyed by infection enough to cause the teeth to be loose or to harbor what we commonly call pus pockets to such an extent as to give rise, to this arthritis. Of course that is my estimation.
******
“Q. How many pus pockets did you find in Mr. Dennis’ mouth?
“A. I did not find any marked pus pockets at all.
“Q. Did you find any pus pocket that would cause you to believe that it was feeding • pus into his system that would affect his bones or joints?
“A. I did not.
******
“Q. You are assuming he hasn’t got a rheumatic condition?
“A. I examined the patient, knowing that he was suffering from arthritis, and, with that in mind, trying to see if his teeth were the cause, and if so, I planned to remove the teeth.
******.
“Q. You did not find any teeth that were dead, at all?
“A. No, sir.
“Q. You did find, though, that there was infection there in the gums, as you say?-
“A. Yes.
“Q. And you found some evidence of pyorrhea?
“A. Slight, yes.”

Doctor Scales, Sr., testified:

“Q. Doctor Scales, have you had occasion to examine this man Dennis, right there before you?
“A. Yes.
“Q. About what time?
“A. August, I think.
“Q. Did you remove his tonsils?
“A. I did.
“Q. Just explain to the court what condition you found them in?
“A. Well, I found his tonsils enlarged, not particularly bad, I thought.
* * * * * *
“Q. You took them out at his request, did you not?
“A. I took them out at his request; yes.
“Q. He believed their removal would do him good?
“A. Well, he hoped so, like I did.
“Q. Did you believe these tonsils were bad enough to produce focal infection, such as to produce arthritic back?
“A. I thought it very doubtful.
‡ H* * * * *
“Q. Will you tell us what your opinion is?
“A. I can tell you what it was at the time of the operation, if you want me to tell you?
“Q. All right; let’s have it.
“A. My opinion was, then, that his tonsils probably did not cause his trouble, but that they might, and the man was disabled, and I wanted to give him the benefit of the doubt, and so I removed his tonsils.”

We think the testimony of Drs. Scales, Jr., and Scales, Sr., goes far toward destroying the theory that the cause of plaintiff’s trouble was infected gums and teeth.

And the theory that the trouble to plaintiff’s back resulted from some cause antedating the alleged wrenching or spraining of it on May 18, 1928, is inconsistent with the fact that prior to the wrenching or spraining plaintiff was able to do and did the hardest kind of steel structural work and the fact that at the time of the wrenching or spraining he was helping to move a steel truss weighing more than a ton.

Defendant earnestly insists that plaintiff is a malingerer, and points to the fact that in a suit against the Fortuna Oil Company, a former employer, he had alleged that he was permanently totally disabled and sought compensation on that basis, and that after the alleged wrenching or spraining of his back he had continued to perform hard manual labor.

The fact that plaintiff sought and failed to obtain compensation as for permanent total disability in a suit against a former employer is no bar to the right to recover in the present action if, under the law and the evidence, he is entitled to do so. The basis of the other suit is a circumstance in support of defendant’s contention that the cause of plaintiff’s incapacity antedates the wrenching or spraining of his back on May 18, 1928.

And as to the continued performance by plaintiff of hard manual labor, the evidence fails to establish this. R. B. Collins testified that he knew plaintiff; that he was engaged in the business of operating a “filling station” in that part of the city of Shreveport formerly called Cedar Grove and that the only manual work he had seen plaintiff do was when he was having a bridge repaired near his place of business by a negro and that the negro did not know how to do the work and that plaintiff, came along at the time and that at his request plaintiff helped the negro on the job.

“Q. Did he help the negro do the work?
“A. Him and the negro built the bridge for me.
“Q. What kind of timbers were in that bridge, Mr. Collins?
“A. The material that I made the bridge out of was 2xl0’s, 20 feet long; then we had sleepers 6x8, 5 feet long.
“Q. How long did it take Mr. Dennis and this colored man to do this work?
“A. They started about 1:30 and were through at 5:00.”

On cross-examination he testified:

“Q. You did not see him (plaintiff) doing any actually hard work, did you?
“A. No, X wouldn’t — I could not say that I seen him doing anything.”

As stated at the outset, the case involves solely questions of fact. The trial judge who saw and heard the witnesses testify resolved these issues in favor of the plaintiff. Judgments based upon issues of fact will not be. disturbed on appeal unless clearly erroneous. La. Dig. Verbo Appeal, sec. 625, page 591.

After carefully reading the record we are unable to say that the judgment appealed from is erroneous, and accordingly it is affirmed.


text:
    No. 3371
    Second Circuit
    HOLMES v. T. & P. RY. CO.
    (July 1, 1929. Opinion and Decree.)
    (November 4, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Foster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellee.

      Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a petitory action. Plaintiff alleges—

“that The Texas & Pacific Railway Company, a corporation organized under an act of Congress of the United States and doing a general railroad business in the state of Louisiana, is in the actual physical possession of lots 5, 6, 7, 8 and 9, and part of lots 4 and 10, of Block 23 of the town of Hosston, Louisiana, without any title whatsoever thereto and without any right to remain on said property * * * and refuses to deliver possession of said property to petitioner without any good or legal cause for such refusal.”

She further alleges that the defendant has occupied the desei’ibed premises for more than nine years and that the minors of whom she is tutrix, namely, Samuel Hoss, Jr., and Martha Helen Hoss, are entitled to be decreed owners of the property and put in possession thereof and to further judgment against the defendant of $100 a year for the use it has had of the premises for nine years.

She deraigns title in the minors by unbroken chain going back to the United States.

The defense is:

“That many years ago your defendant, or the Texarkana, Shreveport & Natchez Railway Company, its predecessor in title, entered upon said lots without objection on the part of the then owner or owners and constructed thereon its section house or houses as necessary component parts of a line of railway, and that it so appropriated said property and devoted same to public use as part of a line of' railway and has so used and continued to use same as such; and that it thereby became the owner of said property and cannot be dispossessed of same.”

The case was tried on these issues and judgment was rendered — •

“recognizing Samuel Hoss, Jr., and Martha Helen Hoss as the true and lawful owners of Lots 4, 5, 6, 7, 8, 9 and 10 of Block 23 of the town of Hosston, Caddo parish, Louisiana, * * * and as such entitled to the full and undisputed possession thereof, and ordering the Texas & Pacific Railway Company to deliver possession of said property unto the said Samuel Hoss, Jr., and Martha Helen Hoss.”

And there was further judgment in favor of the minors and against the defendant for $450 for nine years’ use of the land.

From this judgment the defendant has appealed.

OPINION.

The question presented for decision by this appeal is whether the purpose for which defendant appropriated and is using the plaintiffs’ property is one of those for which the law grants to railroad corporations the right of expropriation.

Counsel for plaintiffs say, in brief, that:

“The law seems to be well settled that where a railroad company has the right to expropriate a piece of land for a certain purpose, and, instead of bringing expropriation proceedings to obtain title, the railroad company simply occupies the land and uses it for purposes for which it might have been expropriated, then the land owner's remedy is to bring an action of damages against the railroad company for the property so taken; * * * therefore, in the case at bar, if, in the year 1902, the Texas & Pacific Railway Company had the right to expropriate these lots for the purpose of erecting thereon dwelling houses for its employees, * * * the railroad company has acquired the ownership of the lots * * * If, on the other hand, the railroad company did not have the right to expropriate this property in 1902 for the purpose of building dwelling houses for its employees, * * * the railroad company holds the property as any ordinary person would, namely, as a trespasser, and plaintiffs have a clear title to the lots and are entitled to a fair rental for them during the period of their occupancy by the railway company.”

And they quote the testimony of R. B. Ayres, defendant’s division superintendent, that the property was used for section house purposes and, further—

“Q. Just what is a section-house, Mr. Ayres?
‘‘A. Well, it is built for the purpose of housing the men.
“Q. Just in the nature of quarters for them to live in, is it not?
“A. Yes, sir.”

And further contend that—

“there is neither legislative authority nor jurisprudence in this state or in any other state that would, give to a railroad company the right to expropriate property of a private individual for the purpose of erecting thereon dwelling houses for its employees. The testimony of Mr. Ayres is to the effect that a section house is nothing more or less than a dwelling house for the employees of the railroad company; * * * therefore, in this case, the railroad company had no right to expropriate the land * * *”

And counsel cite many textwriters and decisions of various courts in support of their contention, including that decision of our own Supreme Court in John T. Moore Planting Co., Ltd., vs. Morgan’s L. & T. R. R. & S. S. Co., 126 La. 840, 53 So. 22, wherein it was said:

“Now, the courts seem to be agreed that the providing of a dwelling for operatives or agents (except perhaps bridge and switch tenders, and, we might, perhaps, under special circumstances, add, section hands) is not considered to be a purpose necessary for the operation of the railroad, such as could justify forced expropriation.”

But say that the clause, “and, we might, perhaps, under special circumstances, add, section hands” was obiter and therefore without weight here.

Counsel for defendant cite Act No. 73 of 1902, section 2 of which provides:

“That such railway companies of any other state or territory of the United States extending, constructing and operating their lines of railroad into and, through this state, shall have the power to expropriate land and other property for their railroad, right of way, switches, sidings, branches, spurs, depots, and depot grounds, yards, and any land and property for railroad purposes, in the manner as is now or may be provided under our laws for expropriation by railroad corporations.”

And contend that this section, and particularly the clause “and any land and property for railroad purposes” authorizes the expropriation of private property for section house purposes; and they cite the case of John T. Moore Planting Co., Ltd., vs. Morgan’s L. & T. R. R. & S. S. Co., supra, and quote therefrom the paragraph we have copied above and contend that the clause in it which counsel for plaintiffs say was obiter expressly recognizes the right to expropriate for the purposes named. And they say:

“If a company has a right to expropriate land for the purpose of providing dwelling houses for bridge and switch tenders, can it logically be said that it has no right to expropriate land for (dwelling houses) for section foreman and laborers? And, [if it may be logically so said] under what special circumstances may a railroad company expropriate land for [dwelling houses] for section hands? When is the right to expropriate, in such a case, to be exercised, and when can it be denied? It seems to us that it either exists under the law of this state or it does not, and that there are no ‘special circumstances’ that can change the written law of the state * * *”

We do not think the act of 1902 grants the right to expropriate private property for the purposes of section houses or that the Supreme Court, in the decision quoted from, intended to hold that the right exists.

Kansas City, Shreveport & Gulf Ry. Co. vs. Meyer et al., 166 La. 663, 117 So.z 765, was a suit by a railroad corporation to expropriate less than half an acre of land belonging to a private individual for the purpose of laying a switch or spur track on it leading off from its main line to the property of a certain shipper.

The defendant denied the right of the plaintiff to invoke expropriation proceedings, in that it did not allege a public necessity for the taking of the property, or any public use thereof, and did not show any necessity for the taking of the particular property in question.

It was contended on the part of the plaintiff (1) that the question of the necessity of constructing switch or spur tracks is not a judicial question, but is one that is within the exclusive discretion of the railroad company; and (2) that, if the expediency or necessity of expropriation is triable at all, it should be tried by a jury of freeholders.

Dealing with these contentions the court said:

“The first contention is based on the theory that, since by special legislation (Act 74 of 1902) a railroad company is authorized to expropriate private property for switch and spur tracks, and by Act 267 of 1910 to construct and operate industrial switch or spur tracks, * * * the expediency or necessity for the exercise of eminent domain is to be determined by the railroad company, upon which the authority to expropriate has been conferred by the legislature * * *
“The legislation of this state, referred to by counsel, has not changed the policy of the law with respect to the exercise of eminent domain. On the contrary, the statutes provide that expropriation for switch or spur tracks is to be governed by the general expropriation laws of the state.
“Those laws are to be found in the Civil Code, under the heading ‘Of the Compulsory Transfer of Property,’ the very first article (article 2626) of which impliedly, if not expressly, limits the obligation of yielding by the owner of his property to the community for public use, to cases where the property is needed for such general and public use, and, where such owner refuses, he may, by authority of the law, be divested of his property to the extent needed for the public use.”

And, after citing many decisions in support of the proposition that the question as to what constitutes public utility and public purpose in matters of expropriation is for judicial determination, and that an owner, before surrendering up his property, has the right to contest in the courts, with the party claiming the right of expropriation, the necessity of the expropriation, the court further said:

“The authorities cited settle beyond controversy the question that the expediency and necessity of expropriation, when sought to be exercised under the authority of eminent domain, is judicial, and that the owner may always contest such question before the courts.”

The special legislation relied on by the defendant, as authority to expropriate plaintiffs’ land for section house purposes, also provides that the right shall be exercised “in the manner as is now or may be provided under our laws for expropriation by railroad corporations;” or, in other words, pursuant to articles 2626 et seq., of the Civil Code.

Not only must the right to expropriate for the purpose desired exist but the necessity for it also must exist and this necessity must extend to the particular property sought to be expropriated; and if it be conceded that the right to expropriate for section house purposes exists, the special circumstances necessary to authorize the exercise of the right are not shown to exist.

Counsel for defendant say that section houses are necessary in order to have section laborers together, so that in case of an emergency, such as a burned bridge, broken rail, or wash-out, they could quickly be called to work, and that by keeping the laborers together in section houses they are at all times available for work and that thereby the railroad company is the better enabled to perform its duty to the public of safely transporting persons and property on schedule time.

But there is no proof of this in the record, and though we might conceive how it might be so ■tfere Hosston a large city, in view of the fact that it is only a small village we cannot imagine why section hands living apart in different sections of the village could not promptly be gotten together.

Neither can we imagine why plaintiffs’ land and none other would serve defendant’s purpose.

Be that as it may, however, we are of the opinion that neither from the standpoint of right of eminent domain nor that of railway expediency has defendant shown any right to retain possession of plaintiffs’ property.

We find no error in the judgment appealed from and accordingly it is affirmed.


author: JANVIER, J.

text:
    No. 11,062
    Orleans
    LOWEWNGARATT v. FREELAND
    (June 24, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      J. C. Henriques, of New Orleans, attorney for plaintiff, appellee.
    P. B. Preeland, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues for one-half of a real estate commission collected by defendant, alleging that he introduced to defendant a purchaser for certain property, for which defendant was agent, and that there was a prior agreement that one-half of the commission earned would be paid to plaintiff in the event of consummation of the transaction.

Defendant resists payment on two grounds —first, that, at the time of the making of the agreement to divide the commission, plaintiff falsely represented himself as being connected with a large local real estate agency, while in truth he had no connection whatever with that agency; and, second, that plaintiff is neither a licensed broker nor salesman, and, therefore, under the terms of sections 1, 2, and 19 of Act 236 of 1920, cannot recover, nor can defendant pay any portion of the commission.

It is not disputed that the sale was consummated nor that plaintiff produced the purchaser and, in addition to introducing him to defendant, was almost entirely responsible for the making of the sale.

Nor is it denied that defendant agreed to divide the commission. It is true that defendant contends that, at the time he agreed to divide the commission, if earned, he had been told that plaintiff was representing the office of Leo Fellman, a large real estate agency.

Even if it be conceded that there was misrepresentation on the part of plaintiff as to his connection with the Fellman office, and the record does not convince us that there was any such misrepresentation, it seems to us that it would be inequitable to allow defendant to reap the benefit flowing to him from the contract and yet to escape the payment he had agreed to make. It did not matter how large nor how small nor how prominent nor how obscure the agency with which plaintiff was connected might have been, it could not have been more successful in making the sale than was plaintiff, because he accomplished all that the owner of the property and all that the defendant required of him. No one could have done more.

However, as to this alleged misrepresentation, it is apparent from a letter written by defendant himself that he was told by the plaintiff that this particular transaction was not to go through the Fellman office. Defendant seeks to escape the effect of this statement in his letter by saying that he did not agree to this suggestion of plaintiff that the transaction was not being handled in connection with the Fellman office, but merely remained silent. Under the circumstances, it was his duty-, when plaintiff made the suggestion referred to, to refuse to allow the transaction to go through on that basis. He cannot passively acquiesce and later contend that he had not agreed thereto.

The second contention that plaintiff has no license, and therefore cannot claim part of the commission, cannot be sustained, in view of the decision of this court in Bosetta vs. Jacobs, 1 La. App. 277.

The facts of this case bring it squarely within the doctrine announced in the Bosetta case. There a young man, knowing of a prospective purchaser of a piece of real estate, made, with the agent with whom the property was listed, an agreement to receive a portion of the commission to be earned if he could introduce to the agent a person who would buy , property. The sale was made, but the agent refused to pay the young man his share of the commission. The same contention with which we are confronted was there made. This court, in the syllabus, said:

“A verbal contract by which ‘A,’ a licensed real estate broker, agrees with ‘B’— not such a broker — that he will share part of his commission with ‘B,’ if the latter secures for ‘A’ a purchaser of property listed by ‘A,’ is not a contract prohibited by Act 236 of 1920. Such a contract will be enforced, where ‘B’s’ services are shown to have been successfully rendered.”

We do not see that any benefit could be derived from our attempting to add anything to what this court said in the Bosetta decision nor from our attempting to discuss the proposition “de novo.” Suffice it to say that we are entirely unable to find any distinction between the two cases. Counsel for the defendant suggests that there is a distinction resulting from the fact that in the Bosetta case all that the plaintiff did was introduce the prospective purchaser to the agent, whereas here he not only introduced the prospective purchaser, but actively assisted in the consummation of the sale. If he is entitled to be paid for services rendered merely because he introduced the prospective purchaser, it would be most illogical to hold that he lost the right to be paid for the services when he went further and assisted in the completion of the trade.

Plaintiff was under the impression that defendant was to receive a commission of 5 per cent on the property. He thus sued for $800, which was one-half of a commission of 5 per cent on $32,000, the purchase price. The evidence shows that the commission received was 4 per cent, and that therefore the plaintiff was entitled to $640, which was one-half of the 4 per cent commission.

It is therefore ordered, adjudged, and'decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellant.


text:
    No. 11,271
    Orleans
    MEADE v. VIGUERIE
    (July 1, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    Paul Maloney, of New Orleans, attorney for plaintiff, appellant.
    Emile Pomes, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

It is alleged that plaintiff, desiring to purchase a lot of ground, made an offer therefor in the sum of $550. This offer was made to defendant as agent for the owner. The petition then alleges that the offer was accepted by the wife of the owner and that thereupon 10 per cent' of the purchase price, to-wit, $55, was deposited with defendant and that thereafter defendant informed plaintiff that the owner had never accepted the offer, was unwilling to ratify the acceptance by his wife and that the sale was not consummated.

Plaintiff further avers that the lot was really worth at least $800, $250 more than he had offered, and he asks for damages in this amount and also for the return of the $55 deposited.

An exception of no cause of action was sustained and the suit dismissed, and from this judgment plaintiff appeals.

Plaintiff is entitled to the return of his deposit if the facts are proven to be as alleged in the petition. Of course, usually where a suit is brought against a real estate agent for the return of a deposit, both the prospective vendor and the agent must be made parties defendant. Maloney vs. Aschaffenburg, 143 La. 528. Here, however, if the allegations of the petition are true, there was no prospective vendor. The offer was never accepted and the deposit should not have been accepted by the agent. It is therefore incumbent upon him to return it, if, as is alleged, he accepted it knowing that the owner had not accepted the offer.

Plaintiff, however, is not entitled to the damages claimed, as, in our opinion, he has sustained no loss. Since the owner was not willing to sell for $550, the only result of the agent’s' report to him that the offer was accepted was to give him the temporary satisfaction of believing that he could buy the property at his price. Since, at no time, was it within his power to buy it for that price, he at no time was or would have been able to resell it at a profit. He employed the agent to buy it for him and gave the agent a limit of $550. The agent could not buy it for this. Conceding the truth of each allegation on which this item of damage is based, plaintiff is not entitled to a recovery.

For these reasons, it is ordered, adjudged, and decreed that the judgment appealed from be and it is amended, and that the exception of no cause of action be sustained and the suit dismissed so far as the claim for damages is concerned, and that it be overruled so far as the claim for the return of the deposit is concerned, and that the matter be remanded for further proceedings not inconsistent with this opinion and decree. : I


author: HIGGINS, J. JANVIER, J.,

text:
    No. 11,560
    Orleans
    SEELHORST ET AL. v. PONTCHARTRAIN R. R. CO.
    (July 1, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      H. W. Robinson, of New Orleans, attorney for plaintiffs, appellants.
    Denegre, Leovy & Chaffe, and N. P. Phillips, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Mrs. E. L. Seelhorst, a woman 68 years of age, was killed about mid-day of July 1, 1926, at the intersection of Elysian Fields Avenue and Derbigny Street, in this city, by a train operated by the defendant railroad company. Plaintiffs, the sons and daughters of the deceased, bring this action in damages claiming $30,000.

The charges of negligence in the petition are that the bell on the engine was not rung; that the crossing signal at Derbigny Street was out of order and the bell attached to it not ringing; that the train was being operated with the engine reversed; that the fireman was coaling his engine at the time the accident happened and no lookout was maintained on the side of the engine nearest Mrs. Seelhorst.

Defendant denied all charges' of negligence and averred that the train was being carefully operated; that due warning was given of its approach “to the public in general and to Mrs. E. L. Seelhorst in particular not only by' the wigwag bell at the crossing, but by the bell on- the locomotive, both of which were in order and ringing loudly and audibly; and apart from these signals, Mrs. Seelhorst could not have avoided seeing, and hearing the train (there being nothing to prevent her doing so) had she used her ordinary senses.”

The case was tried by a jury and a verdict and judgment rendered dismissing plaintiffs’ demand. Plaintiffs have appealed.

The street crossing where the accident occurred is in a very populous section of the city. Elysian Fields Avenue is very wide, being 150 feet 6 inches from curb to curb. Of this 150 feet 6 inches, 52 feet thereof is occupied by railroad tracks and an additional 48 feet by the railroad right of way. There are two board walks for the use of pedestrians. There are two warning signals, one at each side of the crossing. These signals consist of a light, a bell and a moving arm called a wigwag.

The train of defendant railroad company was being operated on one of the five tracks, with the coal tender in front of the engine, at a speed of fifteen or twenty miles per hour according to some witnesses, and, according to the engineer, six or eight miles per hour. It was proceeding in the direction of the lake from the river on the track nearest Canal Street, which was the fifth track and the one farthest away from Mrs. Seelhorst. Mrs. Seelhorst was crossing on the lake side of Derbigny Street from the lower side of Elysian Fields Avenue to the upper, or Canal Street side, on one of the two board walks which traversed the tracks at right angles. She was returning to her residence from a corner grocery on the opposite side of the avenue, where she made a few purchases. She had crossed four of the five tracks and was struck by the train while in the act of crossing the fifth.

The train consisted of a coal tender, which had a cow catcher attached to the front part of it, the engine and two passenger coaches. It was in charge of an engineer and a fireman, who were in the cab of the engine and a conductor and flagman, who were in the coaches. The train had stopped at Claiborne Street, one square from the scene of the accident, for the purpose of receiving and discharging passengers.

The engine was backing with the engineer seated on the left hand side of the cab in a position where he could not see to his right or the direction from which Mrs. Seelhorst approached the tracks. The fireman, who usually occupied the seat on the right hand side of the engine, or the side nearest Mrs. Seelhorst, was engaged in shoveling coal in the firebox of the engine. Neither the engineer nor the fireman saw her at any time before the accident.'

The engineer testified that immediately upon striking her, he applied the emergency brake and succeeded in stopping the train after it had proceeded about 150 feet. Mrs. Seelhorst’s body was thrown from the track to the left hand or Canal Street side of the fifth track on to the right of way of the company, she evidently having almost succeeded in crossing the last track.

There is considerable' conflict in the testimony as to whether the bell on the engine, or the warning signal at the crossing known as the wigwag signal, was ringing, but we are convinced that the testimony preponderates in favor of plaintiffs, and we find, therefore that the bell on the engine was not ringing and that the signal at the crossing was not in operation. There was no lookout on the tender, which was in front of the engine, or elsewhere, in a position to see Mrs. Seelhorst_ and she was not seen by any member of the train crew. As a matter of fact, there is no serious contention concerning defendant’s negligence. The alleged contributory negligence of the deceased is relied upon as preventing recovery.

The burden of proving contributory negligence rests upon defendant. Nash vs. La. Railway & Nav. Co., 153 La. 412, 96 So. 14; Blanchard vs. Gulf, Colo. & Santa Fe R. R. Co., 1 La. App. 169.

The argument is that the negligence of a railroad company is of no consequence, for the reason that deceased, being in full possession of her faculties, should have made certain that the way was clear before crossing the tracks; that she either saw or should have seen the train, and in either event her negligence was the proximate cause of the accident. In other words, she walked into the train and must, therefore, suffer the consequences of her carelessness and reckless conduct. This argument if pursued to its logical eonelusion, would make it practically impossible to fasten liability upon a railroad company for street crossing accidents, no matter wbat precautions essential for the safety of the public it may have failed to observe. It is unsound. As was said in Lampkin vs. McCormick, 105 La. 418, 29 So. 952, and quoted with approval in Draiss vs. Payne, 158 La. 658, 104 So. 489.

“Railroad corporations backing their trains through danger points in the streets of a city must use proper care and take proper precautions to safeguard citizens upon them. If they entirely fail to do this, they assume the risk of injury to individuals, even if the injury received be done (due) to some extent to the latter’s imprudence or forgetfulness. They cannot fail entirely in their duty, and argue that, had the duty been performed, it would have been in the particular case, unavailing. The results should have been put to the test by actual trial made at the time.”

There was no flagman at this crossing, a circumstance which enhanced the danger and increased the necessity for care on the part of the employees in charge of the defendant’s train. Lampkin vs. McCormick (supra). There should have been a fireman in the window opposite the engineer. “There must be an engineer at the engine, who has charge of the window on the right, a fireman on the left, a lookout at the end of the train on occasions such as this was, and there should be a flagman at the crossing when required. If there is no flagman, then there is necessity for greater precaution on the part of the other servants of the company. The absence of the flagman greatly enhanced the danger.” (Ibid.)

In Draiss vs. Payne, supra, the court said:

“Those in charge of the train, under such circumstances (the circumstances which obtained in that case) are the first aware of its approach and of the proximity of the danger, unknown to persons and vehicles at or near the crossing in a city. They are therefore in a better position than anyone else to avoid accidents by the use of ordinary care.”

The engineer testified that the presence of the tender in front of the engine obscured his view of objects to the right of the tracks nearer to him than 150 feet, but beyond that distance he could see very clearly. The train stopped at the. corner of Claiborne and Elysian Fields Avenue, which is one city block or approximately 300 feet from the scene of the accident. If the engineer had been looking, he must have seen the deceased on the crossing, for, according to his own statement, ‘he could have seen her until she was within 150 feet of the engine. It would have been a very easy matter for him to have given a short shrill whistle, or to have rung the bell, or to have slackened the speed of his train in order to prevent the accident. Of course, if the fireman had been on lookout on the other side of the cab he could have seen deceased continuously and without interruption up to the time she was struck and could have caused some warning to be given. As was said in the case of Betz & Son vs. Illinois Central R. R. Co., 161 La. 931, 109 So. 767, a case involving damage' to an automobile at a crossing where there were four tracks covering a space of 35 feet (in this case there were five tracks covering about 52 feet):

“The trial judge found, and the evidence supports the finding, that the engineer could have seen the hearse approaching the crossing, and about to cross the track, at a distance of about 250 feet, and had ample time and opportunity of blowing his whistle and to have stopped his engine and avoided the collision.
“The engineer did not blow his whistle, there was no lookout on the tender, and the brakes were not applied until the engine was within 15 feet of the hearse.”

In the cited case, the contention that it made here, to the effect that the plaintiff should have stopped, looked and listened, is answered by the court quoting the syllabus in Cherry vs. La. & A. R. Co., 121 La. 476, 46 So. 596, 17 L.R.A. (N. S.) 505, 126 Am. St. Rep. 323, to the effect that:

“Where the distance across four railroad tracks is only 49 feet (here it is 35 feet) —(in the case at bar there are five tracks covering about 52 feet) — a traveler about to cross the tracks éxercises all due legal care and prudence if he stops and looks and listens before venturing upon the first track. He is not required to repeat the precaution with each of the tracks in succession.”

Mrs. Seelhorst stopped at the first track, but since the signals placed there for the purpose of warning pedestrians were not working, she had a right to assume that there was no danger in making the crossing. The failure of the warning signals to operate was an invitation to her to cross the tracks.

In Maher vs. La. Ry. & Nav. Co., 145 La. 736, 82 So. 873, the court, referring to the plaintiff in the case, said:

“The argument that plaintiff was guilty of contributory negligence is based upon the fact that he could and would have crossed the track in safety if he had walked faster, or had started as soon as the train had cleared the track, going north. In other words, he stopped, looked and listened too long. But he did it in good faith and under circumstances in which we think any man of ordinary prudence might have made the same mistake. He had a right to believe, and to act upon the belief, that the railroad company and its train crew would have some regard for the safety of the public.”

It will be remembered that the train in this case was backing, and even if it had been seen by deceased after having ventured across the first part of the crossing, she would not necessarily conclude that the train intended to continue on its course across her path, for it might well have been that the train was engaged in a switching movement, which would not take it to the crossing. A map and a photograph of the locus in quo, introduced in evidence by the defendant, shows the presence of a switching track in that very block. Since the train was backing slowly and no whistle blown and no bells ringing, she may very well have believed (assuming that she saw the train) that it was engaged in a switching movement.

The failure of the “wigwag” to operate would have a tendency to confirm her in this view. In any event, even though it be conceded that she was negligent in crossing the tracks, and if we consider her as a trespasser, which is a most unfavorable view and one not warranted by the facts, the defendant was under obligation not to wantonly injure her. The omission of all precaution by the operatives of the defendant’s train in approaching a dangerous crossing where there are five tracks, used by trains moving in both directions, is equivalent to wantonness.

Counsel press upon our attention the fact developed by the record that the engine used by this train was the second oldest in the United States, and the coaches almost as old, having been taken out of service of the main line of defendant railroad because of their failure to meet the requirements of the Federal Safety Appliance Act. We do not consider this circumstance of any importance, because if the engine had been a new one and the equipment most modern, it would have made no difference, if the train had been operated in the manner that this old train was operated.

The essential facts in the Betz case (supra) are strikingly similar to the facts here. In that case the accident occurred at a street crossing, where there were four parallel tracks. The hearse, which was damaged, had crossed all but the last track in plain view of the engineer, no whistle was blown and no bells were ringing. In that case the brakes were applied when the engine was within fifteen feet of the hearse. In this case the brakes were applied after deceased was struck.

In Smith vs. Illinois Central R. R., 10 La. App. 342, 120 So. 405, this Court held that the plaintiff in that case, which involved an accident at a crossing, could not recover, but we found that the facts in the Smith case were quite different from those in the Betz case, because in that case the engineer did not have the last clear chance of avoiding the accident for the reason that “the vehicle dashed out from its position of obscurity immediately in' front of the locomotive. The engineer not only did not have the last clear chance, but had no chance at all.” Here under the rule announced in Belle Alliance Co. vs. Texas & Pac. Ry. Co., 125 La. 778, 57 Sou. 846, and quoted in the Betz case, the last clear chance was with the defendant. The doctrine is thus stated in that case:

“The last clear chance doctrine, as applied to railway crossing accidents, is that if, after the engineer has seen the danger of the person on or near the track, he can stop his engine and avert the accident, and fails to do so, the person injured can recover in spite of his own negligence.”

Our conclusion is that defendant is liable and plaintiffs should recover.

The record shows that the deceased was 68 years of age and in good health. She was a kind and loving mother, living happily with some of her children in the old family residence in this city. The children are majors and were not dependent upon her for support, but have been deprived of her association and companionship. The deceased suffered excruciating pains as a result of her fatal injuries and was conscious from immediately after the accident and until a short while before her death at Charity Hospital on the same day, about 4:30 o’clock in the afternoon. Under the circumstances we feel that the sum of $6,000 should be awarded plaintiffs.

It is ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and set aside, and that there be judgment herein in favor of William G. E. Seelhorst, Jr., Mrs. Mary Seelhorst Braig, Mrs. Sophie Seelhorst Maitre, Andrew D. Seelhorst and Edward E. Seelhorst, plaintiffs herein, and against defendant Pontchartrain Railroad Company, in the full sum of $6,000 with legal interest from judicial demand until paid. Defendant and appellee to pay all costs of court.

JANVIER, J.,

dissenting. I - can see in this case nothing to distinguish it from the innumerable others which have established firmly the doctrine that a pedestrian who is struck by a train is guilty of such negligence as to bar recovery, if, by the due use of either the sense of sight or the sense of hearing, the approach of the train could have been discovered.

In such cases no purpose can be served by investigating and discussing the negligence vel non of the operatives of the train. Failure of the pedestrian to use his senses of sight and hearing are insurmountable obstacles in the path of plaintiff, without any reference to the negligence of the train crew.

“No failure on the part of the railroad company to do its duty will excuse anyone from using the senses of sight and hearing, upon approaching a railway crossing, and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.”

Tucker vs. I. C. R. R. Co., 141 La. 1102, 76 So. 213.

Brown vs. R. R. Co., 42 La. Ann. 355, 7 So. 684, 21 Am. St. Rep. 374.

Tatum vs. Rock Island R. Co., 124 La. 927, 50 So. 796.

Herlisch vs. R. R. Co., 44 La. Ann. 280, 10 So. 628.

Provost vs. Y. & M. V. R. Co., 52 La. An. 1894, 28 So. 305.

“The mere omission of train signals will not subject the railroad company to damages if the traveller struck by the locomotive attempts to cross the track without observing usual precautions to avoid such accidents.”

Brown vs. T. & P. Ry. Co. (supra).

Britton & Koontz vs. Harvey, 47 La. Ann. 259, 16 So. 747.

Loften vs. L. R. & N. Ry. Co., 135 La. 33, 64 So. 972.

“It is the duty of one crossing over railroad tracks in a city, to look and to listen so as to avoid accidents; and, if he fails to look and listen, and to see and hear danger signals, he is negligent and he cannot recover damages for injuries suffered by him.”

In the above case the plaintiff was crossing the intersection of Toulouse Street and Claiborne Avenue and was run into and knocked down by a freight car, operated over the tracks in Toulouse Street, driven backwards by a steam locomotive.

I do not find it necessary to disagree with my associates as to the facts of this case, although if it were necessary to a decision to disagree on the facts, I would respectfully direct attention to the unanimous jury verdict in favor of defendant, and would suggest that the rarity of such a verdict in a damage suit against a railroad is a stronger argument in favor of their correctness than could be couched in any words of mine.

Assuming that the crew was not looking out for pedestrians; that no whistle was blown and no bell was rung and that the crossing bell was not ringing (though, in view of the verdict, all these are rather violent assumptions), a recovery is not justified under the jurisprudence of this State. The view of Mrs. Seelhorst was unobstructed, the day was clear and deceased, through her twenty-nine years’ residence on Elysian Fields Avenue in the immediate vicinity of the crossing in question, was thoroughly familiar with the locality and with the fact that trains were constantly run on all the tracks over which her path crossed.

The law applicable to such a situation is well stated in Nolan vs. Illinois Central R. R. Co., 145 La. 483, 82 So. 590:

“A person about to walk upon a railroad track must look and listen for approaching trains; and where he fails to do so, and walks upon the track in such close proximity to an approaching train as to be struck by it before it can be stopped, he is guilty of such negligence as will preclude a recovery in damages for his death; and the fact that the train was negligently operated will not render the company liable. White vs. Railroad Co., 114 La. 825, 38 So. 574; Riley ys. Shreveport Traction Co., 114 La. 135, 38 So. 83; Lewis vs. Railroad Co., 114 La. 161, 38 So. 92, 108 Am. St. Rep. 335; Jones vs. Railroad Co., 121 La. 39, 46 So. 61; May vs. Railroad Co., 123 La. 647, 49 So. 272; Dubose vs. Railway Light Co., 123 La. 1029, 49 So. 696; Tatum vs. Rock Island Railroad Co., 124 La. 921, 50 So. 796; Harrison vs. Railroad Co., 132 La. 767, 61 So. 784; Elliott (2d Ed.) p. 1171.”

See, also, Gibbens vs. N. O. Terminal Co., et al., 159 La. 347, 105 So. 367; Tucker vs. Ill. Central Railroad Co., supra, and the following decisions of the Courts of Appeal:

Morin, etc., vs. Central R. R. Co., 1 La. App. 72.

Guillot vs. La. Ry. & Nav. Co., 3 La. App. 541.

Simkins et al. vs. La. Ry. & Nav. Co., 5 La. App. 438.

Sullivan vs. Tremont & Gulf Ry. Co., 4 La. App. 358.

Trainmen have a right to believe that a person approaching a railroad track will exercise their sense of sight and hearing, so as to perceive an approaching train in time to avoid an accident. Schulte vs. N. O. City & Lake Rd., 44 La. Ann. 511, 10 So. 811; Cook vs. L. & N. W. R. Co., 130 La. 918, 58 So. 767; Nelson vs. T. & P. Ry. Co., 140 La. 676, 73 So. 769.

The case of Betz & Son vs. Ill. Cent. R. R. Co., 161 La. 931, 109 So. 766, can, in my judgment, afford no comfort to plaintiffs, merely by reason of the fact that there as here, there were several tracks to be crossed. In the first place, in the Betz case the object struck was a vehicle, which, of course, is not so easily nor instantaneously controlled as is a pedestrian. In the second place the vehicle was crossing the tracks not at right angles as was Mrs. S'eelhorst, but at an angle of about forty-five degrees, so that the train was approaching to some extent from the rear o.f the vehicle. But, most important of all, in the Betz case the court found that it should have been apparent to the engineer that the driver of the vehicle was oblivious of the danger approaching partially from the rear, and that therefore, had the engineer been looking, he would have had an opportunity to avoid the accident, even after it was no longer possible for the driver of the vehicle to do so. In other words, the engineer had the last clear chance.

The doctrine of the last clear chance, however, can have no application to a case of a pedestrian,, in the full possession of his faculties, because his negligence in stepping upon the track and in remaining there continues up to the very moment of the accident and prevents the application of the doctrine of the last clear chance.

Harrison vs. Railroad Co., supra.

Castile vs. O’Keefe, 138 La. 479, 70 So. 481.

Morin vs. I. C. R. R. Co., supra.

Leopold vs. T. & P. Ry. Co., 144 La. 1000, 81 So. 602.

Tucker vs. I. C. R. R. Co., supra.

Hammers vs. C. S. N. O. & P. R. Co., 128 La. 648, 55 So. 4, 34 L.R.A. (N.S.) 685.

Nor can I agree that Cherry vs. La. & Ark. Ry. Co., 121 La. 471, 46 So. 596, 17 L.R.A. (N.S.) 505, 126 Am. St. Rep. 323, is in point here. There is not the slightest doubt that the crossing here was in no way obstructed and that any care on tbe part of Mrs. Seelborst would have brought to her notice the approaching train. In this regard the facts are entirely different from those in the Cherry case, in which the court said that “the crossing was one of the most frequented of the town and was obstructed by cars standing upon and near it.” It appears that the engineer in the Cherry case admitted the charges of negligence, but sought to excuse himself by stating that “he did pot know the car stood so near the crossing, or, in other words, that the crossing was so obstructed or so dangerous.”

Furthermore, in the Cherry case the persons killed were riding in a vehicle, and were not, as was Mrs. Seelhorst, walking.

In order to avoid the impression which may be erroneously obtained from a reading of the majority opinion, let me state that the train involved was not being driven backwards. That is to say, the cars were not ahead of the locomotive. The only charge of negligence in this regard is that the locomotive was operating with the tender end first. It has been many times held that such movement does not constitute negligence. Ladner vs. N. O. Terminal Co., 139 La. 262, 71 So. 503.

I am unable to persuade myself that the opinion of my associates, for whose views I have the highest regard, is in accord with the jurisprudence of this State. On the contrary, in my opinion, it does violence to. established doctrines and annihilates the defense of contributory negligence in railroad crossing cases.

I therefore respectfully dissent.


author: WESTERFIELD, J.

text:
    No. 11,152
    Orleans
    IZQUIERDO v. KENNER ET AL.
    (June 24, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Solomon S. Goldman, of New Orleans, attorney for plaintiff, appellee.
    Huddleston Kenner, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for the return of a deposit in the sum of $190, made by plaintiff with a real estate agent, under the terms of an agreement to buy and sell certain real property belonging to the defendant, coupled with a demand for $155.95 damages alleged to be due as a result of defendant’s breach of the agreement to sell.

Plaintiff and defendant, Duncan F. Kenner, entered into an agreement whereby plaintiff agreed to buy and defendant to sell j certain property of defendant for the sum of $1,900, “$1,500 cash, balance of $400 loan from homestead. Title to be delivered free from encumbrances. Title to be subject to examinaton and approval of purchaser’s attorney.” Pursuant to the terms of the agreement, plaintiff deposited with a real estate agent, S. A. Harvey, with whom defendant’s property had been placed for sale, $190 “on account of the purchase price to bind the sale.” The title was objected to by the attorney for the homestead association, to which plaintiff had applied for the loan, upon the ground that there was an outstanding tax title. Defendant was either unable or unwilling to remove this cloud upon his title and the agreement of sale was never consummated, the property being subsequently sold to someone else at an advance of $100 in price. In the meantime plaintiff had incurred an expense of $60.45 in connection with the examination of the title, for attorney’s fees, survey, certificates, etc. This expense, together with an item of $95.50, an amount expended by plaintiff for dirt filling placed on the property, makes up the item of $155.95 claimed as damages.

This suit was brought against Kenner and Harvey, in solido, for the sum of $190 and an additional judgment was prayed for as against Kenner alone in the sum of $155.95. The defendant, Harvey, filed an exception of no cause of action and the defendant, Kenner, an exception of vagueness, of mis-joinder and of no cause of action. The exception of no cause of action filed by Harvey was maintained and plaintiff’s suit as to him dismissed. All exceptions filed by Kenner were overruled “and an answer filed in which it was admitted that the plaintiff had made the deposit as alleged, but the authority of Harvey to represent defendant is denied. However, the execution of the agreement to sell the property is admitted, a willingness to abrogate same declared, and all claim to the $190 deposited with Harvey abandoned, but all responsibility to plaintiff in any further sum is denied.

There was judgment below against the defendant, Duncan Kenner, in the sum of $250.45, an amount which recognized plaintiff’s claim in full, less the sum of $95.50 claimed for filling the property. From this judgment defendant, Kenner, has appealed. Since no appeal was taken from the judgment maintaining the exception of no cause of action as against Harvey, that judgment is not before us on review. However, on this point see Maloney vs. Aschaffenburg et al., 143 La., at page 528, 78 So. 761.

Harvey was the agent of both parties. Pfeifer & Co. vs. Mayer & Co., 3 La. App. 289; Civil Code, art. 3017.

Defendant’s title did not meet the approval of the purchaser’s attorney and no effort was made to correct the defects pointed out. It is unnecessary to consider whether, as a matter of fact, the title is good or bad. Hardtner vs. Dixie Oil Co., Inc., 163 La. 1011, 113 So. 357. Plaintiff was entitled to be reimbursed for the expense incurred by him for certificates, attorney’s fees and survey in connection with the examination of the title. Jacobs vs. Freyhan, 156 La. 585, 100 So. 726. The cost of filling the lot should also be returned to plaintiff because it increased the value of defendant’s property. In point of fact, defendant sold the property shortly after the rejection of the title by plaintiff’s counsel for an advance of approximately the same amount as the sum expended for filling. Civil Code, arts. 508, 1964, 1965. Police Jury vs. Hampton, 5 Martin (N. S.) 389; Pearce et al. vs. Frantum, 16 La. 414. The plea of prescription of one- year filed by counsel against the claim for damages, upon the ground that his claim is in tort, is not well founded. Plaintiff’s demand in this respect, as properly suggested by him, flows from the relation of negotiorum gestor under a quasi contract. Police Jury vs. McDonogh, 10 La. Ann. 395.

From what has been said, it follows that the judgment appealed from must be amended by increasing the amount awarded plaintiff to the sum of $345.95, and as thus amended, it is, for the reasons herein assigned, affirmed.


text:
    No. 11,931
    Orleans
    BURAS v. SOUTHERN COFFEE MILLS, LTD.
    (July 1, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This suit results from a collision between a Studebaker sedan and a half-ton Ford truck, at the intersection of Third and Dryades Streets at about 9:30 A. M. of May 25, 1928. Plaintiff, the owner of the Studebaker sedan, sues for damages to his automobile which, it is admitted, amounted to the sum of $710.

There was judgment below in favor of defendant dismissing plaintiff’s suit and plaintiff has appealed.

Plaintiff’s car, which was in charge of a negro chauffeur by the name of Clarence Wills, was being driven out Third Street in the direction of Lake Pontchartrain. Defendant’s truck was proceeding down the car track in Dryades Street, in the direction of Canal Street.

Dryades Street has the right of way over Third Street. It was the duty of the driver of the Studebaker to have stopped before entering the intersection. Belden vs. Roberts, 3 La. App. 338; Stern vs. Yellow Cab Co., 2 La. App. 273.

Wills admits that he did not stop before entering the intersection, but claims that he came almost to a stop, and looked in the direction of the Ford truck, which, he says, was a half of block away, and considering that there was sufficient time to cross Dryades Street, entered the intersection in low gear and was struck in the rear, after he had almost completed the crossing. He attributes the accident to the excessive speed of the Ford truck. On the other hand,- defendant’s witnesses testify that the Ford truck was traveling at a moderate rate of speed and the Studebaker very fast.

The driver of the Ford truck, who, at the time of the accident, was in defendant's employ, was not produced as a witness though an effort was made by defendant’s counsel to subpoena him.

After reviewing the testimony of all the witnesses we have reached the conclusion that the accident was due to the fault of Clarence Wills, the driver of plaintiff’s Studebaker. We have been influenced by the following considerations:

After the accident the Ford truck was turned over on its side and was found almost at the scene of the accident. The Studebaker, however, proceeded on its way about 100 feet further, having turned over two or three times and when it finally came to rest it was on its wheels and completely turned around, facing the direction from which it came. It is evident that the Studebaker was traveling very rapidly and could not have been slowed down to low gear before entering the intersection. It follows that Wills was mistaken when he testified that the Ford truck was a half block away as he started to cross the street, for the reason that, at the speed he was traveling, he would certainly have cleared the intersection if the Ford truck was that far distant. It seems to us that Clarence Wills was driving very fast and that he attempted to cross the street when the Ford truck was almost upon him, or, as the trial judge puts it, he tried to “beat it across.” See Employers’ Casualty Co. vs. Maechlin, 5 La. App. 140; Fetter vs. Torre, 1 La. App. 766; Geddes vs. Simkins, 4 La. App. 125.

The defendant’s truck had the right of way and should have been allowed to proceed. Norwich Union vs. Cohen, 1 La. App. 512; Belden vs. Roberts (supra).

The trial judge found that the accident was due to the fault of the driver of plaintiff’s car and we are of the same opinion.

For the reasons assigned the judgment appealed from is affirmed.