Jameson v. Standard Oil Co.

*424ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant asks for a rehearing in this case on the ground that we failed to give proper weight to the testimony of N. C. Causey, the driver of defendant’s truck, to the effect that T. C. Jameson, the plaintiff, was driving at from 30 to 35 miles an hour at the time of the accident; and urges that Mr. Albert P. Garland’s testimony that there were skid-marks on the pavement about the center of the street where the accident occurred approximately 33 or 35 feet long, taken in connection with Mr. Morton’s testimony that a Ford car going. 20 miles an hour can be stopped in its own length and going 30 miles an hour can be stopped in about 35 feet, corroborates Mr. Causey’s testimony that plaintiff was driving at from 30 to 35 miles an hour at the time of the accident.

If thdse skid-marks are circumstantial evidence supporting Mr. Causey’s testimony that plaintiff at the time of the accident was driving at from 30 to 35 miles an hour, it is not sufficient to overcome the well recognized principle of law that the findings of fact of the trial .judge who saw the witnesses and heard them testify and observed their manner of testifying will not be reversed unless manifestly erroneous; nor to overcome the well settled jurisprudence that he who alleges contributory negligence carried the burden of proving it—

Boutte vs. N. O. Terminal Co., 139 La. 945, 72 South. 513.

Buechner vs. City of New Orleans, 112 La. 599, 36 South. 603.

nor to overcome the positive testimony of the plaintiff, T. C. Jameson, and F. S. Huff, that plaintiff, at the time of the accident, was driving at from 18 to 22 miles an hour.

Mr. Causey testified that plaintiff was driving at from 30 to 35 miles an hour and that his car was zig zagging from the time he first saw¿ him approaching to the time of the accident.

These two statements, in our opinion, destroy each other, for we do not think a Ford car can zig zag at the rate of 35 miles an hour without zig zagging off the .street.

Causey further testified that at the time of the accident his car was standing still.

W. H. Lester, T. C. Jameson, F. S. Huff and A. Y. Deloach testify that Causey’s truck was not standing still at the time of the accident. The consensus of their testimony is that at the time of the collision he was driving at from 10 to 12 miles an hour.

Hence if Causey’s testimony is corroborated to any extent by -that of Mr. Albert P. Garland it is flatly contradicted by the testimony of the last four above named witnesses.

Causey further testified that while his •truck was standing still he saw plaintiff’s car zig zagging as it approached at a rate of from 30 to 35 miles an hour and that when it glided into his truck he was not at all excited.

We do not think the driver of a moving car can accurately judge tlie speed of an approaching car.

Besides, Causey testified, page 62:

“Q. You do not mean to say that he was zig zagging 30 or 35 miles an hour?
“A. No, sir.”

For these reasons the application for rehearing is refused.