In my opinion Mrs. Rutter was in plain view of Norman at a time when he could or should have avoided striking her. The locality where the accident occurred was well lighted by street lamps and also by decorative electric signs on the business establishments located there. There is some difference in the testimony of the witnesses concerning the point where Mrs. Rutter was when struck by the Norman automobile and also a conflict in the evidence as to whether the parked taxicab interfered with the vision of Norman. The speed of the Norman car is also in doubt. However, my appreciation of the testimony is that Mrs. Rutter was far enough out into the intersection to be visible, and that Norman had a clear view and was guilty of excessive speed. A speed of more than fifteen miles per hour in that locality is prohibited. See Section 3, Article V, Paragraph (a). Mrs. Rutter also had the right of way. Article IV, paragraph 2 of the Traffic Ordinance, No. 13,702 C.C.S. reads as follows: "The operator of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked cross-walk, or within any unmarked cross-walk at an intersection, provided the pedestrian has started across the street before the vehicle has entered the intersection, except at intersections where the movement of traffic is being regulated by police officers * * *".
In Rottman v. Beverly, 183 La. 947, 165 So. 153, 155, it was said:
"It is frequently stated by courts that there can be no recovery in negligence cases `where it appears that the negligence of the plaintiff continued until the moment of the accident,' but that is not a correct statement of the rule. Thus broadly stated, it is misleading, for it is not true in a strict legal sense that a plaintiff is barred from recovery under any and all circumstances merely because he was guilty of negligence which continued down to the moment of the accident which caused his injury, and this court has never so held.
* * * * * * * "In those cases [where negligent plaintiff was not allowed to recover against negligent defendant] the fault of each operated directly to cause the injury. The defendants had no better `last chance' to avert the accident than did the pedestrians, and inasmuch as the pedestrians could have avoided the injuries by taking proper precautions, and failed to do so, and as their negligence continued down to the accident, they were in no position to invoke in their behalf the doctrine of last clear chance.
"But in those cases if the engineers and others in charge of the engines or trains had actually discovered the peril in which the pedestrians had negligently placed and kept themselves, and after discovering the danger had negligently failed to use such reasonable and available precautions as would, if exercised, have saved the pedestrians from the consequences of their negligence, the plaintiffs might have been entitled to a verdict. This is upon the well-recognized principle that it is the duty of those in control of dangerous instrumentalities to avoid accidents and injuries to others if they reasonably can, even though the party in danger may have negligently placed and kept himself in a position of peril of which he was unaware."
It will be noticed that a greater responsibility rests upon the driver of an automobile than upon a pedestrian upon the ground that the automobile is a dangerous instrumentality.
Jackson v. Cook, 189 La. 861, 181 So. 195, 197, is an affirmation of Rottman v. Beverly, *Page 615 supra, the chief distinction being, as was said in the opinion: "The only difference between the Rottman Case and the case presently before us is this: In the Rottman Case Mrs. Rottman was guilty of gross negligence which continued up to the moment of the accident. Beverly, the driver of the automobile, actually saw her in her perilous position in time to avert the accident had he used proper precautions. In the present case the plaintiff was guilty of gross negligence which continued up to the moment of the accident. The driver of the car did not see, but could have seen, plaintiff in his peril if he had been looking ahead. The mere fact that the driver of the car in this case did not see plaintiff does not absolve the defendant from liability, because it was the duty of the driver to look, and, according to the findings of both courts, he was not looking. The Rottman Case is not authority for holding that, merely because the driver of the car in this case did not actually see the plaintiff, the defendant is not liable."
For the foregoing reasons, I respectfully dissent.