Dlnkelsplel. J.
Plaintiff subrogated to tbe rights of Sterns Auction Exohange, Incorporated, sues defendant, the International Ship Supply Company, Incorporated, claiming that defendant is Indebted to plaintiff in the sum of $489.10.
Further alleging, that on a policy of insurance carried by the Sterns Auction Exohange, Issued by plaintiff, covering damages whioh there' motor vehicle might reoeive by a oolislon, and that on the 33rd. of October, 1919, a Republio Truok, owned and operated by Sterns Auotlon Exohaa-age, and oovered by said insurance, was proceeding in Bienville Street, from the river in the direotion of the lake or woods, driven by an employee of Sterns Auction Exohange, and upon reaohing a point near the intersection of Bienville and Deoateur Streets, the driver sounded his horn and prooeeded to cross said intersection} and when gaining the intersection by the above named streets, a truok owned and operated by the International Ship Supply Company, Incorporated, ran into and oolllded with the truok of the Stems Exohange damaging same in the amount olalmed.
That the Sterne Exchange truok was operated in aooor-danoe with law and the ordinances of the City of New Orleans for the regulation of traffio upon it's streets and roadways, and olalmlng further, that the damage done to ■aid truok amounted to the sum of $469,10, whioh the Globe Indemnity Company, plaintiff herein, paid and reimbursed to Sterns Exchange, on account of and by reason of it’s liability under it's said polloy of insurance, and by reason of said payment under the terms of said polloy said Globe Indemnity Company became subrogated to all rights, notions and claims for damage that said Sterns [487]*487Exohange, has or had under said policy; that said accident and collision was not due to the fault, negligence or want of oare on the part of said Sterns Exohange, or it's servants or agents.
And, further avering, that said accident and collision was due solely and only to defendant, it's agents, servants or employees for whom it is responsible in law and who at the happening, of said accident and collision were operating said truok for account of defendant and in due course of it'8 business.
And further , that defendant was guilty of negligence in violating the ordinance of the City of Hew Orleans, particularly the portions of ordinace Ho. 5181, Commission Council Series, and other laws for the regulation of traf-ilo within the limits of the City of Hew Orleans; that said trucf was being operated at an exoessive and unlawful rate of speed, particularly in'attempting to cross an in~ terseoian of streets without slowing down the speed of said truok; that defendant is guilty of negligence for the reason that the driver of it's truok failed to sound it's horn, or otherwise signal the approach of 8aid truok of defendant by not oomforralng to the regulations fixed by law, and finally that defendant was guilty of negligence in failing to have daid truok under control.
The answer admits the occurence of the collision referred to, but denies that it's truok ran into that of the Sterns Auotion Exohange, and predicates said denial upon the lack of sufficient information to justify belief, denying, that the truok of the Sterns Exohange was damaged in the amount as alleged.
Further answering denying all and singular the allegations contained in plaintiff's petition, and further answering says; that the collision complained of was due, soiily and entirely, to the negligence of the party oper[488]*488-ating plaintiff's automobile* truok at the time of the accident, and that defendant's truck was travelling at a slow and moderate rate of speed in conformaty with the requirements of the City traffic ordinances, and that said truck was at the time being driven south in Decatur Street which is a main artery of thoroug hfare upon which there is an unusual amount of traffic, that the horn upon defendant's truck was sounded upon approaching the intersection of Bienville Street, and that no horn signal was sounded by the party operating plaintiff's truck in Bienville Street, and that said party was at the time driving plaintiff's automobile truck at a high and reckless rate of speed violating the requirements of the traffic ordinances refe'rred to in the petition of plaintiff, and violating the ordinary rules of caution and safety dicated by the fact that plaintiff's truok was at the time approaching a main artery of thoroughfare. Defendant further alleges, that**- it’s truok was damaged in the collision complained of, and reserves the right to sue for damages in future.
A motion to dismiss plaintiff suit was filed subsequent to the filing of a suit by the Sterns Auction Exchange against the same defendant, for the same cause of action, which was over-ruled by the Court.
On the trial , on the merits, on behalf of plaintiff, Arthur Lindsay, the driver of the truck in question was examinedj-
Q- What happened that was out of the ordinary?
A- Well, at the corner of Bienville and Decatur another truok run into mine there, and that was out of the ordinary. I was coming from North Peters and Bienville, from delivering a desk, and was coming to the store. I was half a block between Bien-ville and Hecatur which runs into a point there, and right at North Peters and Decatur, the accident occurred. He was going out Bienville from the direction of the river to-the woods.
And in answer to a question to state juat what happened, he says:
[489]*489" I turned around; I gets near Decatur on Bienville; I Dlows my horn; I hears no reply from no one, I started on acoross the stseet, and by that time there was another truck going up Decatur Street towards Canal, he was ooming at a rapid speed, I biowed and heard no one answer, naturally I started on across, and I realized that he was ooming, and that is the time I turned on the emergency brake, stopped myself, and he ran right into us, and bursted my engine all to pieces, also the radiator."
Q- How far did the truck of the International Supply go after it hit your truck?
A- About ten feet as near as I could get it. He was hit on the right hand side of seat, front seat of the truck; his engine was bursted half in two, the radiator was bursted all to pieces and it was leaking.
Q- Did you notice what side of Decatur this other truck was going up in the direction of Canal Street on the right hand or left hand side?
A- Ho, He was near the middle of the street,for the simple reason
Si- when he struck my truck, it was right near the middle of Bienville and Decatur, because I had'nt quite got to the comer when I slid. The accident occurred about half jhast one in the day time.
Q- How far, if at all, did your truck skid when you applied the brakes?
A- Well, as near as 1 oan get at it about six foot. The streets were dry. The truck was a heavy truck weighing a ton and a half. The International Ship Supply truck stopped just across Bienville Street on the right hand side near the woods sidewalk.
The next witness, Edward Buckter, testified; he worked on the truck of the Sterns Auction Exchange as a helper and was with txha the driver Lindsey at the time of the aooident. He says:- » We came out from Decatur Street and delivered a desk, and was coming back from there to go to the store on the truck when tisix
[490]*490this other truok hit ua.
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Dlnkelsplel. J.
Plaintiff subrogated to tbe rights of Sterns Auction Exohange, Incorporated, sues defendant, the International Ship Supply Company, Incorporated, claiming that defendant is Indebted to plaintiff in the sum of $489.10.
Further alleging, that on a policy of insurance carried by the Sterns Auction Exohange, Issued by plaintiff, covering damages whioh there' motor vehicle might reoeive by a oolislon, and that on the 33rd. of October, 1919, a Republio Truok, owned and operated by Sterns Auotlon Exohaa-age, and oovered by said insurance, was proceeding in Bienville Street, from the river in the direotion of the lake or woods, driven by an employee of Sterns Auction Exohange, and upon reaohing a point near the intersection of Bienville and Deoateur Streets, the driver sounded his horn and prooeeded to cross said intersection} and when gaining the intersection by the above named streets, a truok owned and operated by the International Ship Supply Company, Incorporated, ran into and oolllded with the truok of the Stems Exohange damaging same in the amount olalmed.
That the Sterne Exchange truok was operated in aooor-danoe with law and the ordinances of the City of New Orleans for the regulation of traffio upon it's streets and roadways, and olalmlng further, that the damage done to ■aid truok amounted to the sum of $469,10, whioh the Globe Indemnity Company, plaintiff herein, paid and reimbursed to Sterns Exchange, on account of and by reason of it’s liability under it's said polloy of insurance, and by reason of said payment under the terms of said polloy said Globe Indemnity Company became subrogated to all rights, notions and claims for damage that said Sterns [487]*487Exohange, has or had under said policy; that said accident and collision was not due to the fault, negligence or want of oare on the part of said Sterns Exohange, or it's servants or agents.
And, further avering, that said accident and collision was due solely and only to defendant, it's agents, servants or employees for whom it is responsible in law and who at the happening, of said accident and collision were operating said truok for account of defendant and in due course of it'8 business.
And further , that defendant was guilty of negligence in violating the ordinance of the City of Hew Orleans, particularly the portions of ordinace Ho. 5181, Commission Council Series, and other laws for the regulation of traf-ilo within the limits of the City of Hew Orleans; that said trucf was being operated at an exoessive and unlawful rate of speed, particularly in'attempting to cross an in~ terseoian of streets without slowing down the speed of said truok; that defendant is guilty of negligence for the reason that the driver of it's truok failed to sound it's horn, or otherwise signal the approach of 8aid truok of defendant by not oomforralng to the regulations fixed by law, and finally that defendant was guilty of negligence in failing to have daid truok under control.
The answer admits the occurence of the collision referred to, but denies that it's truok ran into that of the Sterns Auotion Exohange, and predicates said denial upon the lack of sufficient information to justify belief, denying, that the truok of the Sterns Exohange was damaged in the amount as alleged.
Further answering denying all and singular the allegations contained in plaintiff's petition, and further answering says; that the collision complained of was due, soiily and entirely, to the negligence of the party oper[488]*488-ating plaintiff's automobile* truok at the time of the accident, and that defendant's truck was travelling at a slow and moderate rate of speed in conformaty with the requirements of the City traffic ordinances, and that said truck was at the time being driven south in Decatur Street which is a main artery of thoroug hfare upon which there is an unusual amount of traffic, that the horn upon defendant's truck was sounded upon approaching the intersection of Bienville Street, and that no horn signal was sounded by the party operating plaintiff's truck in Bienville Street, and that said party was at the time driving plaintiff's automobile truck at a high and reckless rate of speed violating the requirements of the traffic ordinances refe'rred to in the petition of plaintiff, and violating the ordinary rules of caution and safety dicated by the fact that plaintiff's truok was at the time approaching a main artery of thoroughfare. Defendant further alleges, that**- it’s truok was damaged in the collision complained of, and reserves the right to sue for damages in future.
A motion to dismiss plaintiff suit was filed subsequent to the filing of a suit by the Sterns Auction Exchange against the same defendant, for the same cause of action, which was over-ruled by the Court.
On the trial , on the merits, on behalf of plaintiff, Arthur Lindsay, the driver of the truck in question was examinedj-
Q- What happened that was out of the ordinary?
A- Well, at the corner of Bienville and Decatur another truok run into mine there, and that was out of the ordinary. I was coming from North Peters and Bienville, from delivering a desk, and was coming to the store. I was half a block between Bien-ville and Hecatur which runs into a point there, and right at North Peters and Decatur, the accident occurred. He was going out Bienville from the direction of the river to-the woods.
And in answer to a question to state juat what happened, he says:
[489]*489" I turned around; I gets near Decatur on Bienville; I Dlows my horn; I hears no reply from no one, I started on acoross the stseet, and by that time there was another truck going up Decatur Street towards Canal, he was ooming at a rapid speed, I biowed and heard no one answer, naturally I started on across, and I realized that he was ooming, and that is the time I turned on the emergency brake, stopped myself, and he ran right into us, and bursted my engine all to pieces, also the radiator."
Q- How far did the truck of the International Supply go after it hit your truck?
A- About ten feet as near as I could get it. He was hit on the right hand side of seat, front seat of the truck; his engine was bursted half in two, the radiator was bursted all to pieces and it was leaking.
Q- Did you notice what side of Decatur this other truck was going up in the direction of Canal Street on the right hand or left hand side?
A- Ho, He was near the middle of the street,for the simple reason
Si- when he struck my truck, it was right near the middle of Bienville and Decatur, because I had'nt quite got to the comer when I slid. The accident occurred about half jhast one in the day time.
Q- How far, if at all, did your truck skid when you applied the brakes?
A- Well, as near as 1 oan get at it about six foot. The streets were dry. The truck was a heavy truck weighing a ton and a half. The International Ship Supply truck stopped just across Bienville Street on the right hand side near the woods sidewalk.
The next witness, Edward Buckter, testified; he worked on the truck of the Sterns Auction Exchange as a helper and was with txha the driver Lindsey at the time of the aooident. He says:- » We came out from Decatur Street and delivered a desk, and was coming back from there to go to the store on the truck when tisix
[490]*490this other truok hit ua. When we reaohed Dooatur Street the drifeer hlowed his hora, he got no answer, so we started out again to go across,*kn and just as we started to go across the other fellow was coming down this street towards Canal Street. Lindsey put his brakes on to stop his truok, but nevertheless he was struck, after he strüok he knooked the engine off towards Canal Street, the way he was going, and.he went about ten or fifteen feet before he stopped."
Q- You say he was coming up-Deoatur Street, and struck your truok, and knocked you all towards Canal Street, and went about ten or fifteen feet before he stopped? -A- Yes.
Q- How fast was the truok you were on travelling?
A- Was'nt going very fast; he was putting her in second after he blew his horn, than he started to pull back in third to go across, and after he did'nt get no answer, and just as he discovered ke the other fellow oomlng this way he throwed his brake and he stop -ped her just about four geet and skidded.
Q- When was the first time that you knew the other truck was coming up the street?
A- It was just, I looked up when he grabbed the lever, the emergency brake, when he grabbed it, that is when I threw my eyes and seen him coming, and the time I looked at him he was right on ua, he knooked our truok and he ran about ten or fifteen feet before he stopped.
Mr. Campbell, who is the Vice President of the Stems Auction Exchange fixes the amount of damage paid by plaintiff company, w which was admitted to be correct, and they received the amount of money from the insurance company.
In behalf Of defendant there were three witnesses examined. B. C. Franoinquea was the first witness. He saw the accident at the Corner of Bienville and Deoatur Streets. ,He says, he was coming down off Bienville Street and walking from the woods to the river on Bienville Street right on the corner, he was on the river side, there was a yellow truck of the supply [491]*491company coming along Deoatur Street very slow blowing his horn; there was a truok ooming in from Bienville Street, very high speed; two niggers drivers; the delivery truok ran into the baok of the yellow truok on the lef$ hand side, and after he hit the truok he skidded at least thirty feet, then this other truok came right to a stand, the yellow truok.
He goes on to dtate, that the Sterns truok, travelling in Bienville Street skidded after it had hit that truok, it skidded right through, could'nt even control the truok.
Q- Was any horn signal given by the Sterns Auction Exchange truok?
A- None at all; ooming right through at full speed.
Q- Was any horn signal given by the International Ship Supply truok?
Q- Yes; blowing his horn, that is what brought me to'a stop, I let him pass. The International Ship Supply truok was going very slow, possibly eight miles, ten miles, and that is about all it was going. I first saw the truok of the International Supply ooming up Deoatur Street, he blew his horn, that drew my attention and I stopped to let him pass; it's an awfully mean comer there; there is an accident there every second day, because I deliver bread in that neighborhood. The truok was dim the right hand side going uptown. Deoatur Street is a one way street.
He goes on to testify: " I supply all the places around that neighborhood with bread with teams and I walk behind my wagon.
I oome out of Leon Leroques when them two niggers were in there drinking, when I oame out they was on the truok argueing, they was ooming along, driving fast, and they ran into the baok part of this truok and they skidded right along. "
Q- Had that truok actually passed the intersection of those two streets?
A- No; he was struck as he was ooming between the two streets, on Bienville Street, as he was going up, this truok oame along on Bienville Street, and struck him right in the baok paert of it; he could not strike him if he passed the street, he would have never pushed higu
[492]*492The next witness, Anthony St. Phillip. He was the driver for the National Ship Supply Company on the 33rd. of Ootober, 1919, and was driving it's truok on the oooasion of the accident at the corner of Bienville and Decatur Sts., and in accounting for the accident and how it occurred, he say»:- " 1 was coming up Deoatur Street about half jkast one going toward» Canal Street, while orosslng Bienville Street, Sterns truok oomlng at a pretty, good rate, hit my rear seat, and that is all I could see to it.
I was going at the rate of eight or nine miles, something like that. X was sounding the horn as it approached the intersection of Bienville Street, and if there waB any horn sounded by the other truok I never hoard it. The Sterns truck skidded and that 14; the way he hit my truok ; they were going about eighteen mile» an hour anda at a full loop, and at that rate the man crushed into mf rear end, and he «kidded fully thirty feet before he «truok my truok, and the street was dry; Deoatur Street is a one way street. He was travelling towards uptown, and Deoatur Street 1» very muoh used for traffic and a very buisy street. When he wae struck he was about the middle of Deoatur Street, and before he oould get on .either side, because it is usually all blocked up with vehlolas of all kinds; you have to stay about the middle of the street, and I was in the oenter of Decatur a little towards Canal Street, and nearly over when the other truok nailed me.
( Pago 34, of hie testimony.)
Q- What portion of your truck came in oontaot with the other truok?
A- Well, the front end of his truok hit my right wheel right square¡ that is all X seen the damage.
Q- The first portion of your truojf which came in oontaot with the other one was that portion near the drivers seat, is that oorreot or not?
A- No, Sir; his truok Just hit the rear end no other part was etr^ok; my truok did'nt strike his truok in any other place-but the rear end; the only portion of my truok that ever got hit.
[493]*493The next witness was Hr. Robinson, who testified as follows:~ Q- Vfhat if anything,do you know about the facts in connection with the aooident in which a truck of the National Ship Supply Company oollided with a truck of the Sterns Auction Exohane Co-pany, at the Corner of Bienville and Deoatur Street on October, 33rd. 1919. Did you witness the aooident itself?
A- No; I dld'nt witness the aooident, but I went at the soene about ten minutes later, and the vehicles were still on the soene of the aooident. One of them, the Sterns vehicle, I saw the skidded mark starting on Bienville and oontinuelng up Deoatur Street about 30 or 30 feet, and that skid was right behind the Sterns Exchange truok, and 1 oalled the attention of the dribsr to the skid mark, and the skid mark showed for a dlstaaoe of some 35 or 30 feet right on Bienville Street across Deoatur.
It is evident from the testimony quoted and from a oareful examination of the entire reoord that contributory negligence trail/ was clearly established. The ixti Judge saw and heard the witnesses and could better judge of the credibility of the witnesses than we oan, and it has often been held that, under olrAumstanoee such as thews, where questions of fact alone are Involved, that the judgment of the trial judge unless absolutely erroneous will be maintained by this Court.
For the reasons herein assigned, it is orderd, adjudged and deoredd, that the judgment appealed from be, and the same is hereby affirmed with costs against plaintiff, appellant.
-Judgment Affirned-