Huffman v. Harman

133 So. 481, 16 La. App. 50, 1931 La. App. LEXIS 466

• Court: Louisiana Court of Appeal
• Decided: April 9, 1931
• Docket: No. 3878
• Status: Published

Opinions

DREW, J.

This suit arises out of an automobile collision which occurred at the intersection of two streets in the city of Shreveport. Plaintiffs alleged that Mrs. Dorothy C. Huffman, one of plaintiffs, was driving a Ford sedan proceeding north on Gilbert street on the right-hand side and at a moderate rate of speed. That as she entered the intersection of Gilbert and East College streets, defendant’s Chevrolet truck, driven by a negro, an employee of defendant, coming from ' the west on East College, ran into her Ford sedan broadside. Plaintiffs alleged that the driver of the truck was acting within the scope of his employment and was on a mission for defendant. They further alleged that the truck was being operated in a careless, reckless and negligent manner; that it was being operated at an excessive rate of speed, approximating thirty-five miles per hour; that the driver of the truck failed to slow down for the intersection and failed to recognize the right of way and to permit the car of plaintiffs to' pass on Gilbert street, it being a right of way street; that the truck driver failed to apply his brakes in an attempt to avoid the accident; and that defendant’s truck entered the intersection after plaintiffs’ car had entered and acquired the right of way. That the truck driver’s negligence was the proximate cause of the accident and the resulting injury and damage to plaintiffs, alleged to be in the amount of $947.68, for which sum they pray for judgment.

Defendant denied the principal allegations of plaintiffs’ petition and alleged that his truck was being driven north on Gilbert street at the time of the accident, and that plaintiffs’ ear was going west on East College street. He denied that the truck was traveling at an excessive rate of speed, and alleged that it was not exceeding 23 miles per hour. He alleged that plaintiffs’ car was traveling at a fast, reckless and dangerous rate of speed and did not slow down at the entrance to said intersection. That the driver of plaintiffs’ car did not look to see if another car was approaching on Gilbert street, and that his truck entered the intersection first. That on seeing the car of plaintiffs, his driver applied the brakes. He prays for plaintiffs’ demands to be rejected and for his right to sue for damages to his truck to be reserved.

There was judgment in the lower court rejecting plaintiffs’ demands, and they have prosecuted this appeal.

It is ratber unusual that plaintiffs and defendant should both claim to have been on the same street. Plaintiffs contend that their car was at the time of the accident going north on Gilbert street and that defendant’s truck was going east on East College; and defendant contends that his truck was going north on Gilbert street and plaintiffs’ car was going west on East College street. The pleadings on this point are entirely irreconcilable and the evidence thereon is likewise so. Both plaintiffs and defendant base their hopes of success in this case on the question of which car. was on Gilbert street, and say to this court-that to decide that question is to decide the case. We presume they took the same position in the lower court and that the judge below held that the plaintiffs had not overcome the burden of proving their case with a preponderance of evidence. If that be true, we can find no fault with the judgment.

Mrs. Huffman, who was driving plaintiffs’ car, testified that she was going north qn Gilbert street. She is' corroborated by one witness who testified that he saw her for a block before she entered the intersection, and one witness who saw the accident at the moment it happened. The driver of the truck and his companion, who was riding with him, testified that they were going north on Gilbert and are corroborated fully by a lady who lives on the corner of East College, who testified that she saw the truck going north on Gilbert for more than a block away and that she saw plaintiffs’ car coming west on East College. Both plaintiffs and defendant argue that the physical facts corroborate their ¡positions. But the testimony as to the position of the two cars after the accident and the tire marks on the pavement is just as much in conflict. Immediately after the accident, plaintiffs’ car was up against the curb on the north side of East College, facing west, and the truck was headed into its left side. This position of the cars corroborates either the contention of plaintiffs or defendant, however, possibly more favorable to plaintiffs’ theory. But the testimony of several disinterested witnesses who viewed the scene soon after the accident is that the heavier tire tracks of the truck were on Gilbert street and the tire tracks of plaintiffs’ car were on East College, a physical fact strongly corroborative of defendant’s contention. This question as to which one was on Gilbert street is purely a question of fact, and the record does not disclose any error in the finding'of the lower court thereon. The evidence does not make it clear as to which car entered the intersection first—the only way to arrive at that would be to know positively which street each was on. The positive testimony is that neither car was traveling over 20 to 25 miles per hour and that neither street is a right of way street. It is also clear that neither driver saw the other until the moment of the collision, as neither looked to the right or left.

We think the testimony shows that had either driver looked on or before entering the intersection, that one could have seen the other for at least 50 feet before entering the intersection, and could have avoided the accident. If they could not see before entering the intersection, it was then the duty of both to slow down and ¡put their cars under control so as to be able to stop in an emergency. Although defendant’s driver was negligent in not seeing plaintiffs’ car before entering the intersection, we think plaintiffs were equally as guilty of negligence in not seeing defendant’s truck before entering the intersection. And had plaintiffs exercised .the precaution required by law, the accident would have been avoided. Therefore, regardless of which street plaintiffs’ car was on, they cannot recover.

We find no error in the decision of the lower court and it is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.