91 So. 521 | La. | 1922
By Division B, composed of Justices O’NIELL, LAND, and BAKER.
Defendant has appealed from a verdict and judgment allowing plaintiff $25,000 damages for personal injuries. He was knocked down and run over by a street car, mangling his legs so that they had to be amputated below the knees.
The case presents only questions of fact. The accident occurred at night, near 10 o’clock, at the intersection of St. Chari.es avenue and St. Andrew street, in New Orleans. Plaintiff and 10 other mfen, having attended a political meeting, were walking along thq uptown side of St. Andrew street from the direction of the river. When they came to St. Charles avenue, there was an abnormal congestion of automobile traffic, because the driveway on the river side of the neutral ground in the avenue for a distance of several blocks below St. Andrew street was being repaired and was closed against automo
Plaintiff avers that there was negligence on the part of defendant’s employees in several respects, viz.: (1) That the speed of the car was excessive, being about 25 miles an hour, in violation of a municipal ordinance fixing the speed limit at 15 miles an horn'; (2) that the motorman was guilty of negligence in not having his car under control, particularly while approaching a crossing where traffic was abnormally congested; (3) that the motorman failed to sound his gong when he approached the crossing; and (4) that the brakes on the car were defective.
Defendant denied all of the allegations of negligence, admitting, however, that the speed limit fixed by municipal ordinance was 15 miles an hour. Defendant charged that the accident was caused by plaintiff’s negligence, averring that, after he had crossed the track, he stopped and suddenly stepped backward, so close in front of the car that it was impossible for the motorman to avoid striking him.
The brakes on the car were in good condition and were as efficient,as such appliances should or could have been. They had been tested that day, before the accident, and were subjected to several tests immediately after-wards to determine whether there was any fault in them. The motorman testified that the brakes were in bad condition, and that, if they had been working right, he could have stopped his car in time to avoid the accident. He testified that he had, on his last previous trip to the car barn, complained of the brakes and had asked for another car. The testimony was successfully contradicted, and defendant’s counsel concede that it was false. Manifestly this false testimony was inspired by either an instinct or a motive on the part of the motorman to shift the Maine from his shoulders and put it on the brakes. He drove the car too fast and neglected to keep a proper lookout while approaching a crossing where traffic was ab
The judgment is affirmed at appellant’s cost.
Rehearing refused by Division C, composed of Justices DAWKINS, ST. PAUL, and THOMPSON.