The difference between the majority of the court and myself is not as to the negligence of G. Romano in entering Government street but concerns the speed at which Irvin Leteff was driving as he came forward on Government street and as to when he first saw defendant's automobile and also as to whether he took proper care and precaution for his safety, after acknowledging to have seen it in the street ahead of him and commencing to turn.
Government street in the city of Baton Rouge runs east and west. Iberville runs north and south and terminates at Government street. Government street is thirty-five feet wide. A street car track about five feet wide occupies the middle of it, leaving fifteen feet of width on each side. A party driving north on Iberville, upon reaching Government, must, if he proceeds further, turn east or west on Government street.
No ordinance on the subject of speed was offered in evidence and there is none indicating that the street is a part of the state highway system. It was agreed on the trial that a city ordinance provides that: "All vehicles turning to the left in another street shall pass to the right of and beyond the center of the street intersection before turning." Under the ordinance it is permissible for vehicles entering Government from Iberville to turn to the right or left in Government street, as the driver may desire, but he must first pass to the right of and beyond the center of the intersection.
Government street is straight. The collision occurred about the middle of the day, and, as there is nothing said about visibility, it may be assumed to have been fair.
G. Romano accompanied by his brother, A. Romano, driving an automobile referred to as a Ford coupé, going north in Iberville, testifies that upon reaching its intersection with Government street he stopped his automobile and from his seat as driver looked east and west along Government street. That, seeing nobody coming, he started up and entered Government street, his purpose being to turn to the left. I agree with the majority of the court that he either did not stop at Government street and look for traffic as he should have done, or he did not stop and look from a place where he could see vehicles coming in the street or he did not look up and down the street carefully.
The evidence shows that the motorcycle on *Page 235 which Irvin Leteff was riding in Government street was so close at hand that he was bound to have seen its approach had he looked carefully from a proper position before entering the street. The evidence shows that the south side of Government street is intersected by various streets. These intersecting streets are warnings to the drivers of motor vehicles on Government to be on guard against vehicles coming into it from these intersecting streets. The distance between these intersections is not clear. The street situated next to Iberville going west is called 13th or Fannie street. There are statements of witnesses which indicate that the distance between 13th or Fannie street and Iberville is about one hundred twenty feet, but the map in the record indicates a greater distance. The evidence indicates frequent traffic on Government street.
Both the Romanos, speaking of Leteff's speed, when they saw his approach, claim that it was very fast, estimating that it must have been about forty-five miles an hour.
C.P. Hansen testifies that standing in his place of business at the corner of Iberville and Government streets he saw the Romano automobile stop as it reached Government street, and that Romano looked east and west. "Then he drove off. His car drove off until his right front wheel touched the South track of the street-car track. There he stopped dead" with his car facing northwest. That he did not see the motorcycle until it was practically on the car, within about three feet of it. He gave it as his opinion that the motorcycle was running at about forty-five miles an hour at the moment he saw it, basing his opinion "on the crash and the distance the boy rode" by which I understand him to mean the noise made as a result of the impact and the height in the air to which the boy was thereby thrown and the distance which his body rolled after striking the ground.
Defendant's automobile was stationary at the time it was struck and he says that when the motorcycle struck the automobile the Leteff boy went about three feet in the air, hit the ground, and rolled about thirty-five feet.
Luke Marchand says he heard the crash and saw the boy five or six feet in the air. A Ford coupé is one of the lightest makes of automobiles and likely yielded some. The severity of the boy's injuries and the height and distance to which he was projected as a result of the impact is to my mind satisfactory proof that the motorcycle was running at great speed at the moment of the impact and a safer guide in that respect than his own estimate and that of the witnesses on that subject.
Another ground of difference is as to when Irvin Leteff first saw defendant's automobile and also as to his prudence and care after he acknowledges to have seen it in his front.
The petition of the plaintiff alleges that Irvin Leteff was approximately thirty feet from the intersection of Iberville street, when he first saw the Romano automobile approaching Government street and commence a left-hand turn; that there was ample time for it to have made its turn; and that he believed and had every reason to believe that the driver of the automobile would continue his turn, clear the intersecting point, and allow him to continue his passage along this right of way street. That, however, the driver of said automobile negligently, carelessly, and in disregard of the rights of said Irvin Leteff did bring his automobile to a complete stop, with the right front wheel thereof resting upon the south track of the street car line along Government street, with said car facing approximately northwest and completely blocking the passageway along the south side of Government street. That at the time the automobile stopped, Irvin Leteff was within approximately fifteen feet of said car and going at a moderate, careful speed, not in excess of twenty miles an hour.
The negligence of the defendant is thus alleged to have consisted not in a sudden and unexpected entrance into Government street but in stopping and not continuing to go forward after entering. It is the theory of the averment that if the Romano car had kept going after it had entered and crossed to the street car track, it would have cleared the intersection before Irvin Leteff reached the place, and that no collision would have occurred.
Plaintiff's cause of action is not based on an alleged negligent entry and turning but on an alleged negligent stopping, when he should have kept going. The averment implies that Irvin Leteff saw defendant's automobile crossing Government street in his front at such a distance ahead, that he formed the conclusion that if the automobile kept going, it would complete its turn by the time he reached it, leaving the street open for him to pass; that, acting on the assumption that it would keep going, the Leteff boy took no precaution but went forward until it was too late to stop.
Irvin Leteff testifies that when he first saw defendant's automobile it was moving forward crossing Government street and turning to the left, that is, toward him. He does not as a witness, in giving his testimony, claim to have seen it stopped at the threshold of Government street before it had entered, and that expecting it to remain there, he undertook to pass it, when it unexpectedly started up barring his way.
The opinion, however, says: "And if, as Romano says, he stopped when he came to the corner, Leteff had the right to expect that he would remain in that position of safety until *Page 236 he had passed, Romano was negligent not only in not remaining in that position but in starting on and coming again to another complete stop. If he had pre-empted the intersection as is claimed for him, his real negligence consisted in not maintaining this advantage but in coming to a second abrupt stop in the middle of the driveway. Therefore the only way in which Leteff could in our opinion have been negligent, was if he was speeding as the defendant contends he was."
Irvin Leteff's testimony does not bear out this position.
"Q. At the time you first saw this Ford coupé driven by Mr. Romano, where were you? A. I must have been about 20 feet from him whenever I first saw him.
"Q. At that time where was the Ford coupé? A. It was coming out of Iberville Street going into Government about half way between the South street-car track and the South curb on Government Street.
"Q. About that time he was about half way in the intersection. A. About half way.
"Q. What did you believe the driver of that car intended doing? (Objection made and overruled.) A. I thought he was going to make a turn and to come Westward on Government Street; that he was going to complete his turn on Government coming Westward.
"Q. As a matter of fact what did he do? A. He came to a complete stop, with his left front wheel on the South rail of the South track and the back end of his car was near the Iberville curbing Southwest of the Iberville curbing.
"Q. Where was his right front wheel? A. His right front wheel was in between the two street-car tracks running along Government.
"Q. At the time that he brought his car to a complete stop in that position, where was your motor-cycle? A. I must have been about 10 feet from him.
"Q. What did you do then? A. I made a short dive to go in front of him but another car was coming Westward on Government Street and I could not complete going between there because the other car would have hit me face to face."
Cross-examination. "Q. How fast was Romano's car traveling as it went into Government Street from lberville Street? A. I don't know. I could not say how fast it was going.
"Q. It was just creeping along? A. He came out like he was going to make a curve.
"Q. About 5 miles an hour? A. I could not say exactly how fast, I don't know.
"Q. Did you see it? A. I seen it whenever it got half way between the South street-car track and the curb.
"Q. That was the first time you saw it? A. That was the first time I saw it.
"Q. And you were then how many feet away from it? A. I was about 20 feet from it then.
"Q. It stopped very suddenly as you approached it? A. Whenever he came out further in Government Street he stopped."
As thus shown by the testimony of Irvin Leteff, he does not claim to have seen defendant's automobile, stopped at the threshold of Government street, and, seeing it there, was thereby encouraged to continue his way, when it started up and barred his way. His claim, as a witness, is that when he first saw it, it was moving across Government street, making its turn, and he reckoned on its completing its turn and clearing the intersection before he reached the place. Romano says that when he first saw Leteff he was so close at hand and coming so fast that he saw he could not make his turn, so he stopped. Whether Romano acted wisely or not in stopping depended on Leteff's speed and proximity.
I take the position that when Irvin Leteff saw defendant's automobile come out of the Iberville intersection into Government street ahead of him he should have promptly and without taking any chances placed his motorcycle under such control that he could make an emergency stop, as the exigencies of the case might require. He took no precautions and kept up his speed until he was so close to the automobile that when it stopped he could not. His collision with it was therefore the result of taking no precautions in the face of an obvious hazard.
There is only inferential testimony concerning the rate at which defendant's automobile crossed Government street. It was likely moving very slow because it had just started up and was making a turn. A motorcycle coming in the street is not as conspicuous as an automobile. G. Romano testifies that when he first saw the motorcycle, it was about a block or one hundred twenty feet distant. A. Romano says that when he saw it coming, it was about two blocks away.
My conclusion is that Irvin Leteff took no timely precautions after seeing an obvious hazard in his front but drove forward recklessly and heedlessly until it was too late to stop, thereby bringing on a collision, when prudent driving on his part would have avoided it.
The principle, which I think should govern, in this case is practically the same that existed in Tyer v. Gulf, C. S. F. R. Co., 143 La. 177, 78 So. 438, 439, in which the court says: "This case is very similar to that of Mrs. Sadie Rogers v. La. Ry. Navigation Co. [143 La. 58], 78 So. 237, lately decided by us; and we hold here, as we did in that case, that, plaintiff having failed to clearly *Page 237 show that the accident might have been avoided by the exercise of ordinary care on the part of the locomotive engineer, after the danger of the situation was, or should have been by him, discovered, she is not entitled to recover."
The Tyer Case was followed in principle by this court in Norwood v. Bahm, 14 La. App. 261, 129 So. 183. The case Duffy v. Hickey, 151 La. 274, 91 So. 733, cited in the Norwood Case, is also applicable in principle.
Plaintiff's right to recover is to my mind defeated by the contributory fault and negligence of Irvin Leteff in not taking timely and prudent precautions against a collision after he had seen or should have seen defendants' automobile enter into Government street and commence turning in the street in front of him. I think the judgment appealed from should be reversed and plaintiff's demand rejected.