(dissenting). I disagree with my associates in two particulars: First, I am of the opinion that the record shows that there was no negligence on the part of the motorman of the street car, and, second, I feel that, even if there was negligence on the part of the motorman, the negligence of the ' chauffeur of the automobile in which plaintiff was riding is imputable to plaintiff, the superintendent of the company for which the chauffeur was working at the time, and that, thus, that negligence would bar recovery by plaintiff.-
The record convinces me that the motorman operated the street car with all necessary care, and that the collision could not have occurred but for the extraordinary carelessness of the driver of the automobile in which plaintiff was seated.
There is no evidence of extraordinary speed on the part of the street car. In fact, the witnesses state that it was very moderate.
The evidence as to the ringing of the gong is contradictory, bub surely it cannot be said that it preponderates towards plaintiff’s contention that it was not rung, and on plaintiff rests the burden of proof.
It is said that the motorman of the street car was looking towards his right, instead of towards his left, which is the side from which plaintiff approached. The motorman was required to look in both directions and he could not look in both directions at the same time. He first looked towards the left and saw that the automobile in front of that in which the plaintiff was riding had stopped. He was certainly justified in assuming that those in the rear of the halted car would also stop and would not come dashing around it in an effort to beat the street car to the crossing. Having seen that the traffic from that direction appeared to be stopped, he looked to the right, as he was justified in doing. ■ He was, therefore, not negligent in this particular.
My associates, find that in all probability the jury was misled by the charge delivered by, the judge below. I see no reason to come to a conclusion that a jury Is misled^ and believe, on the contrary, that the jury was fully cognizant of the facts as adduced on the witness stand and believed that the motorman was without fault.
But, even if the motorman was at fault, I cannot lose sight of the fact, as we have already found, in Lehon v. New Orleans Public Service, Inc., 10 La. App. 715, 123 So. 172, that the driver of the automobile was grossly at fault, and it appears to me that his negligence is chargeable to *643plaintiff here. Plaintiff was the superintendent of the detective agency in the business of which the automobile was being driven at the time. Whether or not he exercised supervision over the driver is unimportant, because he had the right to do so in view of his position, he having stated that he had charge of all outside operations of that agency.
"The negligence of a chauffeur is imputable to his employer or master who is riding with him; and this is true regardless of whether the latter is so situated that he can give directions.” Berry, Law of Automobiles (6th Ed.) vol. 1, p. 511, sec. 642.
It is conceded that, had Mr. Lehon, the president of the corporation and the owner of the automobile, not been present at the time then the negligence of the chauffeur would have been imputed to the plaintiff here by reason of his position as superintendent of the agency. I cannot see what difference it makes that Mr. Lehon himself was present. The presence of the president of the corporation did not deprive Hogan of his position or prerogatives as superintendent of all outside operations, and it was his right and prerogative, as such, to warn the chauffeur about his apparent recklessness. If he had this right, then his right to recover is barred by the negligence of the chauffeur. I do not believe that it can be said- that, where an automobile is engaged in carrying out the business of a corporation, the negligence of the driver of the automobile can be imputed only to the highest ranking officer who happens to be present. If there are two or more officers present, and any one of them would have the right to issue instructions or warnings to the chauffeur, then ■the negligence of the chauffeur is imputable to any one who has that right, whether he exercises it or not.
I respectfully dissent.