(dissenting). My views are not in accord with the majority opinion, and I shall state the case as I see it.
A widow brings this action to recover damages from the defendant for the death of her husband, alleged to have resulted through the negligence of its employee in running him down at the intersection of Broad and St. Peter streets, this city, on August 16, 1926, at 1:30 o’clock p. m.
The petition alleges, in substance, that after the motorman on the street car was. apprised of the deceased’s perilous and dangerous position, and had an opportunity of avoiding the accident by stopping the ear, he negligently and carelessly continued on his course, causing the deceased t$ be knocked down and crushed so badly that he died instantly.
The defenses are that the motorman was free from any fault, and that the deceased was knocked down and killed by the truck of one Albert Bazille, and, in the alternative, a plea of contributory negligence.
There was judgment dismissing plaintiff’s suit, and she has appealed.
The trial court originally dismissed the suit on an exception of no cause of action, and we reversed that judgment and remanded the case for trial on its merits. Cazeaux v. N. O. Public Service, Inc., 14 La. App. 320, 124 So. 685.
The record shows that defendant’s street car was proceeding on Broad street in the direction of Canal street. Broad street has a neutral ground in the center with paved roadways, on each side, traffic moving towards Canal street using the lakeside thoroughfare and vehicles going in the direction of the Industrial Canal using the river side roadway. Broad street intersects St. Peter street at right angles, and the latter street is unpaved. The street car tracks on which the car in question was traveling turned from off the neutral ground of Broad street across the riverside roadway of Broad street into St. Peter *546street in the direction of the river. The deceased had been waiting on the uptown river sidewalk for the purpose of boarding the street car, add, as it approached the intersection of the two streets, and started to turn into St. Peter street, he walked out on the river roadway of Broad street several feet, preparatory to hoarding the car. As he did so, four automobiles approached from his left rear side on the river side thoroughfare of Broad street, moving toward the Industrial Canal. When, the motorman of the street car saw these automobiles approaching, apparently apprehending that there was danger, he sounded his - gong loudly and rapidly; in fact, to .such an extent that several of the passengers in the street car became alarmed and stood up. The first, automobile was a Ford coupe, and the driver of it brought it to a sudden stop, in Timé to avoid colliding with the street car, but it was necessary, in doing so, to slightly turn it to the right. The driver of the truck, which was a little to the right of the Ford coupe, apparently believing he was unable to stop in time to avoid a collision with the street car, swerved the truck into St. Peter street, toward the river. The speed of the truck at that time was estimated at 20 or 25 miles an hour. The street car was going about five miles an hour. The motorman did not attempt to stop the street car until he was within two feet of the river sidewalk curb. The left front huh cap of the truck struck the right front step of the- street car, both being carried by the momentum into St. Peter street, the truck coming to a stop with the left front wheel jammed against the right front step of the car and its right rear wheel against the sidewalk curb on the river uptown corner. The car stopped with its rear 3 or 4 feet in the river roadway of Broad street. It appears that the truck first struck the deceased and knocked him down and that both vehicles carried his body into St. Peter street. He was removed to the sidewalk and died instantly.
The riverside thoroughfare of Broad' street is about 21 feet wide, and the street car is about 31 feet in length, so that, as the street car turned at the intersection, it blocked the roadway completely.
The evidence' of the plaintiff’s witnesses and defendant’s witnesses is hopelessly in conflict. The two eyewitnesses of the plaintiff testified that the deceased had walked from the sidewalk into the river roadway of Broad street several feet, and that, as the street car and the automobiles and truck came in close proximity, the motorman began shouting: “Hey! Hey!” with the result that the deceased became confused and stepped back into the path of the on-coming truck. They further testified that the body of the deceased was under the front of the street car, facing down, with the left side against the right front wheel, but that it had not passed over the body. It also appears from their testimony that the street car was about approaching the center of the riverside thoroughfare of Broad street at the time the motorman began to shout, and that, as -the street car was going very slowly, he could have stopped the car immediately, but that he did not do so and continued on his course.
The defendant’s witnesses’ version of the accident is that the deceased was standing on the sidewalk waiting for the street car to approach, and, as it started to turn into St. Peter street from Broad, he stepped off the sidewalk and approached the tracks, evidently with the view of hoard*547ing the car; that'he was about adjacent to the sidewalk curb in the mouth of St. Peter street; that the truck approached at a rapid rate of .speed and ran down the deceased, carrying his - body in front of the truck into St. Peter street, that -the left front wheel of the truck struck the right front step and fender of the street car, and that the truck came to rest with its left front wheel on the deceased’s body, with the right rear end jammed against the uptown river sidewalk curb.
The evidence of the defendant’s witnesses is conflicting as to how far the street car had proceeded into the river roadway of Broad street at the time that it was apparent -that the truck was not going to stop. The motorman testified that, when the front part of' the car'was 4 feet past the gutter curb in St. Peter street, he realized that the truck was not going to stop, and that he then applied' his brakes. He is corroborated by some of the defendant’s other eyewitnesses; but Joseph Eads, a bridge tender in the service of the defendant, testified as follows:
“Q. Tell what you saw?
“A. I was sitting in the third seat on the right hand side of the Broad car and when it turned into St. Peter street from Broad, I heard the gong ringing unusually more than it does and the two ladies sitting in front of me jumped up and I sat still and I saw this truck 10 or 12 feet away coming towards the car. If it had come straight it would have hit the car, but it turned into St. Peter street and the truck hit -the car on an angle and the back trucks were against the gutter curb on the river side and his front wheel was against the car fender. When I saw the man the truck was knocking him down and he was fighting off the truck with his right hand and hollering -to beat the band and the car ran up against him and stopped on top of him. That is, the truck. * * *
“Q. When you first saw the truck 10 or 12 feet away, was it going uptown or downtown?
“A. Downtown.
“Q. On what side of Broad street?
“A. The river side.
“Q. Where was the front end of -the ca.r where the conductor stands?
“A. Half way across the driveway. It had not straightened out yet. It had not gotten on straight track yet. *' * *
“A. I heard the gong ringing unusually more than it does and the two ladies sitting in front of me jumped up and I sat still, and I saw this truck 10 or 12 feet away coming toward the car. * * *
“A. The front end of the car where the conductor (motorman) stands was half way across the driveway.”
The defense witness Fury testified as follows :
“Q. Where were you when you saw the accident—between what blocks?
“A. Between St. Peter and Toulouse.
' ‘‘Q. Is Toulouse below or above St. Peter?
“A. Above, towards Canal street.
“Q. What did you first see?
‘‘A. I was driving down Broad stréet and there was a machine in front of me and then there was a truck and another car in front of the truck and as w,e approached Broad and St. Peter, the street car was making the turn and the Ford ahead had to face out St. Peter to let the car go -by, and the truck that was in front of the Ford turned with the car into St. Peter, and I pulled my machine to the gutter and the accident happened and I got out of my machine and' ran to the corner and as I ran to the corner I saw a man laying under the front wheel of this- b:g truck and I helped shove the -truck back and move the man to the sidewalk and he •died two minutes after we moved him to the sidewalk. * * *
“Q. You say the truck passed an automobile?
“A. No, sir, I did not say it passed it. I said -there was an automobile in front of the truck and the automobile in front of the truck had to turn its face to St. Peter street not to strike the car, and *548this truck that was behind it, not to strike the street car turned into St. Peter street.”
Andrew Jolly, the conductor of the car, corroborates the defense witness, Eads, about the time of the ringing of the bell. He says:
“Q. What first attracted your attention that something unusual was happening?
“A. I heard some people hollering and heard the motorman hitting his gong pretty rapidly and at that time I was punching transfers.
“Q. You heard the gong?
‘‘A. Yes, sir.
“Q. Was ih ringing ordinarily or unusual?
“A. A little faster than usual attracted my attention.
“Q. Do you know whether the motorman was sounding his bell or not sounding it, as he left Broad street and started around this curve?
“A. He was sounding it fast. That is what attracted my attention.”
The testimony of this witness clearly shows negligence on the part of defendant’s motorman. He was bound to have seen the on-coming vehicles, and while it is conceded that a street car’has a right to turn off a neutral ground and cross a roadway of a right of way street, such as Broad street, it must do so, in such a manner as not to endanger the life and property of motorists or pedestrians by obliging motor-is’ts using that highway to make sudden stops and swerve their vehicles in order to avoid collision.
It appears , that it would have been impossible for the street car to have been 4‘ feet past the river sidewalk curb into the mouth of St. Peter street at the time that the truck ran into the car, as stated by the motorman, because both the plaintiff’s and defendant’s witnesses all agree that the left front wheel of the truck came into collision with the right front step of the street car, and that the right rear wheel of the truck was jammed against the uptown river sidewalk ' curb.
Accepting the version of the accident as given by either the plaintiff’s witnesses, or the defendant’s witnesses, or both of them, it seems to me that the deceased had placed himself in a position where both the motorman and the driver of the truck did see, or should have plainly seen, him; that both of these parties unquestionably saw the truck and street car, respectively; that both of them realized, or should have realized that, if they continued on their respective courses, a collision between these vehicles would be 'inevitable; that the deceased was in a position of imminent danger of being seriously injured and probably killed. It was, or should have been apparent to them, that the deceased was in a perilous position, without any opportunity of extricating himself, if both vehicles continued on their courses. The motorman knew that the street car was going directly across the path of the on-coming automobiles and that its length of 31 feet would completely block the 21-foot street. In spite of this fact, with an obvious dangerous situation before him, he elected to continue across. The Ford coupe blocked the truck from turning to the left. The driver of the truck had one of two alternatives—either to crash into the side, of the street car, or turn into St. Peter street toward the river —in order to avoid a collision.
I am of opinion that both the truck driver and the motorman were guilty of carelessness and negligence. It was through their joint and concurrent negligence that the deceased was killed. Conceding that the deceased was guilty of negligence -in going into, the street, I believe that the motormán had the last clear chance of avoiding the accident by stopping his car *549when he was 10 or 12 feet from the river side sidewalk of Broad street, which would have allowed ample space for the truck to have proceeded on its course. Johnson v. Boyle, 5 La. App. 362; Kelly v. Ludlum, 9 La. App. 57, 118 So. 781; Gouzien v. Feraci, 2 La. App. 115; Martin v. Zatarain, 7 La. App. 629; Greer v. Hamilton, 3 La. App. 120; Parlongue v. Leon, 6 La. App. 18; Thornhill v. Yellow Cab Co. of Monroe, 6 La. App. 787; Green v. Moore, 4 La. App. 495; Kelly v. Schmidt & Zeigler, Ltd., 142 La. 91, 76 So. 250; Hodges v. Davis, 7 La. App. 327; Reed v. Sievers, 146 La. 391, 83 So. 685; Hogan v. N. O. Public Service, Inc., 16 La. App. 637, 131 So. 756; Santos v. Duvic, Court of Appeal, Par. of Orleans, decided March 23, 1931, 133 So. 399, not yet reported (in State reports); Shield v. Johnson & Son Co. et al., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080.
But, says counsel for defendant, the proximate cause of the accident was the defective brakes on the truck, and the motorman had a right to assume that its brakes were good. This contention is accepted as sound by my associates. The evidence does show that the brakes on the truck were defective, and I so find that as a matter of fact; but the defective brakes of the truck, while contributing to the accident, were not the sole proximate cause thereof, because it appears from the record that the motorman was guilty of negligence in driving the street car across the path of the on-coming truck, without any regard for the safety of the deceased, who was plainly in a position of danger. The motorman could have stopped the car after he apprehended the danger and failed to do so.. Under the circumstances I am of ■the opinion that the defendant is liable, and I therefore respeetfully dissent.