On the Merits.
On March 6, 1906, the Grünewald Hotel Company, Limited, defendant herein, entered into a builder’s contract with the Expanded Metal Fireproofing Company and the Northwestern Tile Company, under which they were to “erect, finish and deliver in a true and thoroughly workmanlike manner, the concrete work, wood frames for same, water proofing, ■ concrete foundations, reinforced concrete cinder concrete filling, pipe and drain openings, bracing of sheet piling on theater side of building,” according to plans and specifications, for a consideration of $46,692. It was further stipulated in said contract as follows:
“(14) It is further agreed and understood by and between the parties hereto, that the parties of the first part (the contractors) shall within seven days from the execution of this contract cause to be executed to the party of the second part a bond with some Guarantee Company as surety thereof in the sum of $46,692.00 made in accordance with Act 180 of 1894 acceptable and to be approved by the party of the second part and another bond with similar surety for the amount of the contract $46,692.00 which bond shall be so conditioned as to indemnify and hold harmless the party of the second part against any and all losses which it may sustain by reason of the parties of the first part failing to keep or perform any of. the obligations or agreements which - the parties of the first part have agreed to do and perform by this contract.”
The contractors failed to furnish the bonds within the delays mentioned, but did so’ on March 22, 1906, and on that date there was indorsed on the foot of the contract the following, to wit:
“The date of the foregoing contract by consent of all parties is hereby changed from March 6th, 1906, to March 22nd, 1906.
“[Signed] Expanded Metal Fireproofing Co.,
“W. W. Ramsey, Prest. [Seal.]
“Northwestern Tile Go.,
“By D. W. Cutter,
“By C. W. J. Neville.”
Thereafter, the contract and bonds were recorded in the mortgage office on March 24, 1906. Both bonds were, on March 22, 1904, accepted in writing by the Grünewald Hotel Company.
On March 12, 1906, the Expanded Metal Fireproofing Company commenced bracing the piling on the Tulane Theater side of the lot on which the work was to be performed, and thereafter this work was continued, with interruptions on account of rain, etc., together with the building of an office and the bringing of tools and lumber from another job, prior to and subsequent to the recording of the contract and bonds on March 24th, and on March 31st the concrete work was started. The plaintiff herein commenced hauling material to the job on March 28, 1906. . The account sued on herein is for materials, the delivery of which began in September, and ended on December 11, 1906, and on which plaintiff claims a balance of' $4,811.54.
For recovery of the defendant herein, the plaintiff relies upon two propositions,, viz.: *133the distances traveled by plaintiff and the automobile at this most critical time, it would be unsafe for the court to undertake a mathematical demonstration to show what was done, or what might, could, or should have been done, and base a judgment thereon. Legendre thought that the roadway in Canal street was 40 or 50 feet wide, whereas it is only 35 feet wide. And he testified that when he was in the middle of Jefferson Davis parkway he saw plaintiff under the shed at the corner, from 150 to 240 feet distant. He was very poor in estimating of distances, for the width of the parkway, from property line to property line, is only 267 feet, and one-half of that distance would be only 133 feet 6 inches.
[5] It cannot be expected that defendant, seeing plaintiff and another woman under the shed at the corner, which shed extended less than one-half the width of the sidewalk, which is 25 feet, would assume that one or both of them intended to take a street car, when he saw no street car in either direction. It was only when he saW plaintiff leave the sidewalk with her umbrella drawn over her head that he realized there was danger, as he was only 15 or 20' feet distant, going at the rate of '12 to 15 miles an hour, on a down grade, over- a slippery pavement. He testified at that time that he had his engine under control and that he did all he could to avoid the accident. He adopted the means best suited, in his opinion, to avoid the accident. He put on the emergency brake keeping the other hand on the wheel, and stopped the car within a few feet after it had struck plaintiff. If defendant had been guilty of negligence for failing to blow his horn that could only be considered as an error of judgment at most, but, if not so considered, the negligence of both parties was concurrent at the time of the accident, and plaintiff cannot recover damages on account thereof. But we are constrained to hold that the accident was unavoidable on the part of defendant, and that the judgment appealed from should be affirmed.
Plaintiff argues that she should recover damages under the doctrine of the last clear chance. But there is no place for the application of that doctrine here. There is no evidence whatever going to show defendant was guilty of a willful act of negligence, or that he was wanton in his disregard of the life and safety of plaintiff. And there is no .evidence going to show that defendant had it in his power, or should have had it in his power, to have prevented the accident to Mrs. Germann, after he discovered the danger of her position.
The judgment appealed from is affirmed.
O’NIELL, J., concurs in the decree.