Opinion
No. 20051.
October 19, 1953.
APPEAL FROM FIRST CITY COURT OF NEW ORLEANS, SECTION "A", STATE OF LOUISIANA, HONORABLE ANNA JUDGE VETERS LEVY, J.
May Carrere, Hermann J. Schulze, New Orleans, for appellant.
Bennett Meyers, Bienvenu Culver, H.F. Foster, III, New Orleans, for appellee.
Plaintiff, Joseph Paternostro, instituted this suit against the defendants, Miss Nell Hartmann, the operator of a Chevrolet automobile, Theodore Gitz, the owner thereof, and his liability insurer, the Travelers Insurance Company, endeavoring to recover the sum of $205 representing damages to his Dodge Sedan incurred on July 21, 1951, at 1:00 p.m. by virtue of a collision in the uptown intersection of Louisiana Avenue and Freret Street.
Defendants answered and denied that the operator of their vehicle was guilty of any negligence in the premises and, in the alternative, pleaded the contributory negligence of the plaintiff. Defendant, the owner of the vehicle, then reconvened for $146.93 representing damages incurred in consequence of the collision.
From a judgment in favor of plaintiff and against defendants as prayed for and dismissing the reconventional demand, defendants prosecute this appeal.
The record reveals, as usual, two versions of the accident. Plaintiff contends that he was driving in Louisiana Avenue in the direction of the lake and, upon reaching the intersection of Freret Street, made a left turn and brought his vehicle to a stop with the front end thereof slightly protruding into the lane of traffic proceeding in Louisiana Avenue in the direction of the river; that after he had stopped for a short time, defendant's vehicle, which was proceeding in the right traffic lane of Louisiana Avenue in the direction of the river, suddenly swerved to the left striking plaintiff's vehicle and thereafter continued in its path for 75 to 100 feet before it was brought to a stop.
Miss Nell Hartmann, one of the defendants herein and the operator of the vehicle, insists that she was proceeding in Louisiana Avenue in the direction of the river in the left traffic lane, rather close to the neutral ground and that she observed plaintiff's approach in Louisiana Avenue and his turn into the Freret Street intersection, but presumed that he would bring his vehicle to a stop within the area encompassed by the neutral ground in order to permit Louisiana Avenue traffic moving in the direction of the river to safely pass; upon contact with plaintiff's vehicle she immediately brought her automobile to a "dead stop" and then "drove off" to clear the traffic lane.
The only eyewitnesses to the collision were plaintiff, his brother, Conway Paternostro, a passenger in his car, Miss Nell Hartmann, and Mrs. Theodore Gitz, wife of the owner of the Chevrolet and also a passenger therein. Each witness substantiated their operator's version of the accident.
The record is replete with evidence to the effect that the area colloquially designated as the neutral ground in Louisiana Avenue is too narrow to accommodate a car within its width and, in consequence thereof, either the front or rear of an automobile or both ends thereof may protrude into the roadways of Louisiana Avenue.
The trial court, in reaching its conclusion, obviously relied upon plaintiff's version of the manner in which the collision occurred and our careful examination of the record conclusively reveals that the evidence contained therein preponderates in favor thereof. We, therefore, are of the opinion that the accident was caused by the failure of the operator of defendant's vehicle to exercise care after plaintiff's car had been placed in such a position that he could do nothing to avoid the impending collision.
In the recent case of Garrett v. Toye Bros. Yellow Cab Company, La.App. 1952, 58 So.2d 418, 419, which bears an analogy to this case, we had occasion to observe:
"The situation in which plaintiff found himself is an interesting one, and such accidents as this will undoubtedly occur more and more frequently in the future. Of course, it has been deemed advisable that neutral grounds on such streets be narrowed as much as possible so that the driveways for automobiles may be widened in order to accommodate the ever increasing traffic. But, with the narrowing of the neutral grounds there has come about the practical elimination of the safety zones which the wider neutral grounds formerly afforded. As a result, it has become extremely difficult for a car driver, intending to cross such a thoroughfare as Bienville Street, to do so in absolute safety. Had plaintiff waited before attempting to cross the upper driveway until it was absolutely certain that he could cross both, it is possible that he might have had to wait for hours. He chose what seems to have been the proper course. He saw that he could cross the first roadway in safety and that, on reaching the neutral ground, he could assume a position which would afford comparative safety, provided drivers on the two roadways operated their cars with reasonable caution and did not attempt to completely monopolize the roadways.
"Had the plaintiff driven his car even a foot or two into the second roadway when the taxicab was so close that the driver could not have avoided striking his car, he would certainly have been held to have been at fault. But so far as we can see from the record, when he allowed his car to proceed about two feet into the driveway, the cab was far enough away for its driver, had he been on the alert, either to have stopped the taxicab, or to have turned slightly to his right and gone around the front of plaintiff's car."
Counsel for plaintiff and defendants stipulated that the monetary amounts claimed for effecting repairs to the respective vehicles are correct.
For the reasons assigned the judgment appealed from is affirmed.
Affirmed.