91 So. 742 | La. | 1922
Plaintiffs appeal from a judgment rejecting their demand for damages against defendant. Their daughter, aged about seven years, was run over and fatally injured by an automobile operated by defendant, June 23, 1917, ih the city of New Orleans, under the following circumstances:
Defendant was driving his automobile, and was following a street car going towards the rear of the city on Dumaine street. That street runs back, at right angles, from the Mississippi river, is paved, and, though it is narrow, there is in the center of it a single track, upon which street cars run in one direction, from the river towards the lake. There is, however, room enough for a vehicle to meet a street car, provided such vehicle pass close to the curbing. Defendant had followed the street car from the intersection of Galvez street. The conductor of the street car says that defendant seemed to attempt several times to pass by, but was prevented from so doing because the space between the street car and the curbing was taken up by other vehicles. Defendant, who was operating his automobile, denies this, and says that he made no such attempt. Whether he did or did not is of little consequence because, as a matter of fact, he did not pass the street car, which was going at a speed of 10 to 12 miles an hour, and he could not therefore have exceeded that speed, which in the determination of this controversy becomes a very important factor. When the street car reached the corner of Miro street, one block back of Galvez, it stopped on the farther side to let off a passenger. Just then the plaintiffs’ little girl, coming on the upper rear sidewalk of Miro street to the corner of -Dumaine, ran along the left-hand sidewalk of Dumaine street towards the rear, a distance variously estimated at 35 to 50 feet, darted diagonally across Dumaine street, when she was struck by the left front wheel of defendant’s automobile, which was still following the street car after it had made its last stop.
Both Boyce and defendant testify that the automobile at the time of the accident was on the street car track; the left wheel of the automobile running about 1 foot to the left of the left rail. The little girl ran from the sidewalk to the side of the street car, hesitated, then attempted to pass behind the street ear, ahead of the automobile, and when defendant first saw her it was too late to avoid the-accident. He applied the brakes, but the automobile skidded over the child. Defendant says he first saw the little girl when she was 3 or 4 feet ahead of him. She had been hidden from his view by the street car, and she evidently had failed to look in the direction of defendant’s automobile.
We do not believe that defendant was guilty of negligence, and; so believing, it is ordered that the judgment appealed from be affirmed.