Thi3 suit grows out of the following facts:
Plaintiff alleges that defendant is engaged in the oper-'tlon of street cars in the City of Hew Orleans^and said o?rs opere bed by eleccricityj and represents that on or about June 13th, 191S, at about eight o'clock in the morning, one of the employees of plaintiff attempted to cross the traoks of defendant at Tulsne Avenue and Cortez Street, when he was struok by a oar of the defendant, in charge of one of its employees^and further representing that the truck of pis intiff was driven in a lawful and careful mr¿nner when it attempted to cross the street and thst defendant'e oar -,vas far enough away to permit it to pass in safety if said oar had been operated in a lawful and careful manner^end that its said truck was in plain view of the motorman of the 3«ld oar^who knew or should have known that owing to the b=d condition of the street at that point it was necessary to drive slowly and carefully across their track^but that the motorman operated and continued to operate the oar at such an unlaviful and excessive rate of speed and made no attempt to stop said car until it was too late to avoid striking the truck of plaintiff and alleging further thst the damage accruing to said \ due to truck was entirely/the fault and negligence of defendant's mo-torraan^and not to the driver of the truokj damages in the sum of One Hundred SixtíP-six and 65/100 Dollars are claimed and judgment for that amount prayed for.
Defendant's answer oontends, after denying all the allegations of plaintiff's petition, except suoh as ware ad-averred mitted,/ that the accident happened and was oaused entirely by the negligence of plaintiff's employee who failed to stop, look and listen before attempting to cross said traok^and further plead contributory hegligenoe and prayed for a judgment in its favor.
*137We have carefully considered and read the testimony in this case and we quote only such portions thereof as we think essential to its decision.
The driver of the truok, the main y/itness for plaintiff on questions propounded to him by the Judge as to the nature of the aaaa: accident:
q. This oar was coming on the uptown track, coming into town?
A. Yes.
0,. You know thst this crossing was in had oondition, is that correct?
A.'Yes,
Q. You knew th/--t you oould not cross there as you could at any ordinary caressing?
A. At the same rats of speed; Yes.
Q. And you attempted to make th/t crossing when you saw the car coming?
A. I hed plenty of time to get over the traok.
Q. Th/-1 is your judgment, thct you thought you hod enough time to get across the tr..ck ahead of the car?
A. Yes.
Q. The accident proved that your judgment was not correct?
A. No. I had plenty of time if thst motorman had hl3 car under control, if he attempted to slow up at the next corner, the xaxklx next block from me.
Q. You wanted the motorme.n to cut off his power a block ahead of you?
A. No, it is usual for any motorman if he sees anything in front cf him he h?s got time to slow his car.
Q. Whether he did that or not you don't know?
A. No.
witnesses __ . The in other/ for plaintiff in no way oontradiot the testimony of the drivel of the truok and the various and sundry accounts, they give, eaoh one from hi 3 viewpoint, in no manner effect the drivers testimony*
*138Otto Katz a witness for defendant, a pc-sanger on the oar at the time cf the accident in testifying -.'.icongst other things:
q. Ste.te to the Oourt what you saw?
A. I was standing on the -platform reading •=. p^per ani .vhen we got about the middle of the block the motoru.i.n ss.-.rcad o..r:ging the bell and blue hia whistle at rather rapid r-ce *nd 1 looked up to sea what the cause w ..s I 3,.v, a crack coming from the Woods side going pretty font í.id wh n ha got in the tr?ok after practically he came to a stop, he st.. rted ever the treok and the consequences was that the car hit :.nd ran into him.
The metorouvn on the oar, T,eo Kertzlsr, testifying in behelf of the defendant:
Q. When the truck was approaching the- crossing .-/hat did you do?
A.. X jrtSB blew my whistle end applied lay breaks and the truck checked end nearly stopped when I ol=w my whistle ani I was under the opinion that he .re.3 going to remain stoppéd, end when he stopped I took my breaks off and I proceeded on, and as I proceeded on, he started up his truck and ran right up in front of me.
Q, When he started again what did you do?
A. I Jj-levr my whistle again and applied the emergency breaks,
q. Were you able to stop your oar in time -so avoid hitting him?
A/ No X was not in time, xatiathsnxlisxaczás I was creasing at that fcijw time when he me-de the second stop.
Q. What part of the truck did you strike?
A. The rear end and the wheel.
Q. About how far did your oar go after it struck the truck?
A. About fifty feet past the crossing where the accident was.
We have thus quoted in main the testimony of Tony Grlsaffi and that portion thereof which establishes the position of the trade together with all the facte connected with his *139driving^or attempting to drive on the treck of defendant without either listening or looking,in the early hour of the morning, daylight, to S3e the movements of the o---r, the ringing of the be'1 Is, the step of the osr(snd endeavored to cross the track that taking ohunoes, believing doubtless that he could cross in safety, in whioh belief the testimony proves he was absolutely mistaken; there osn be no denial of the facta he h=s testified to and from his eividence alone ,ta there would be sufficient i I in this record to render Judgment in favor of the defendantjout in addition to that there is the testimony of the motorman and that of defendant's witness, Katz, which proved undoubtedly the defense set up by defendant and makes the oase clear.
It h;..s been frequently held that -"street cars have the right of way."
139 La. 351, Walker vs. Rodriquez.
133 La. 185, Boylan vs. N. O. Ry. & Light Co.
145 La. 337, Schick vs. Jenevein.
"It is a recognized rule that before crossing a railway track a person should stop, look and listen; and it will not do to substitute therefor a rule to the effeot that being a distanoe from the crossing towards whioh he and the eleotrlo or steam oar ere travelling he may then pass an opinion as to whioh of the two will get there first and acting upon that opinion essay the crossing without giving himself further assurance upon the subject."
Heebe vs. N. O. & Carrollton Ry. & Light Co. 110th La. 970.
McShane vs. Ry. Co. 137 La. 832.
"The driver of a vehicle who sees an eleotüo oar ap- ■ proaching even as much as three hundred feet away and yet without looking again drives upon the track and thus comes into col-r lission with a moving oar is guilty of such negligence as to bar a recovery in the absence of evidence showing with legal oertainty that the motorman was operating his car at a danger*140ous rate of spaed or by the exercising of crdin..ry cere ‘..iter the discovery of the danger, ccild avoid the collision. ”
Anthony Bertucci vs. N. O. Ry. & Light Co.
No. 7383 Court of Appeal.
For the reasons assigned it is ordered, adjudged and deoreed that the judgment of the Court aqua be end the seme is hereby affirmed, costs of both Courts to be oaid by plaintiff.
-Judgment affirmed-