Snider vs. Railroad Co. low or Napoleon avenue car, and a block and a half away from the place of the accident at the time it occurred. His statements are entitled to no weight; he claims entirely too much knowledge of affairs for the opportunities which he had for ascertaining the facts. Jones, one of defendant's main witnesses, on this branch of the case, declared he saw the accident. He was on a wagon on Josephine street, behind the plaintiff. The plaintiff went across; a red car coming down stopped on the middle of the crossing instead of on the far side. Plaintiff had plenty of time go to over Being blocked, he could not see the to start over. The green car ran up on him, hit the foot-board of the wagon, jammed it up against the post, threw Snider out, and his feet fell across the track. The bell did not ring until the man had been run over. No effort was made to put on the brake until after the accident had happened; the green car ran to within fifteen feet of the Jackson street switch. Witness saw the red car stop at Josephine street and block the crossing. Snider was at the time on the asphalt, waiting for the red car to go over. Snider was going if that car had gone by. green car when he went over the track when the green car hit him. If the red car had not stopped there Snider would have crossed over. On cross-examination, in fixing his own position at the time of the accident, he repeated that he was on a wagon on Josephine street, behind the plaintiff, his wagon heading to the woods; he was on the river side of St. Charles avenue, and he was going toward the woods. Snider's wagon was directly in front of him, standing on the middle of the asphalt, with just room enough for a wagon to come behind him. Snider moved on at the same time the red car moved on. As the car moved across the crossing Mr. Snider whipped up his horse to drive across behind the car. Witness was looking at the red car at the time. As soon as the car started he (witness) looked up town to see if another car was following the red car. There being none, he was going to drive over too, but he saw the green car, but Snider did not. The car was coming from down town at the rate of twenty-three or twenty-five miles an hour. When the green car was twenty feet above St. Andrew street, Snider was just across the track. His horse's head was between the two tracks; he was on the river side track and had not yet reached the wood side track. He was hitting his horse, trying to cross the track. He was not heading to the woods, Snider vs. Railroad Co. but was going to head up town. He had not seen the green car blocked by the red car. Had Snider looked up and down the track, as witness did, he could not have seen the green car, as the red car was right blockading him and he could not see it. Snider was sitting on his wagon in the middle of St. Charles avenue on the asphalt, and he started across to the woods as soon as the red car moved across the crossinn he could look up the track but could not look down, because the car moved on and hid the car—the green car—he went across covered by the red car. On re-examination the witness stated that he had reached Josephine street from Coliseum street-he came from Coliseum, between Sixth and Washington-he was on the river side on Josephine street to clear the crossing-he had gone down Josephine street headed toward the woods-he came out Coliseum street to Jackson, on Jackson to Prytania and as St. Charles and Jackson were blocked, he took Prytania, to Josephine street. Snider had cone down Josephine street headed to the woods. Witness saw Snider before he (witness) got to the corner of Josephine. He saw him within thirty feet of the corner. He was ahead of the witness. Plaintiff attempts to explain this testimony by saying the witness was a stranger in the city, and did not know exactly the description to give to places, but the minute statements made by him as to where he came from and where he was going, does away with the possibility of any mistake by the witness. Jones' account differs so radcally from that of all others, that it should be disregarded entirely in reaching conclusions in the case. Having determined that the position of the red car at the time of the accident did not enter as a factor in the case, we have now to examine the other grounds upon jwhich plaintiff seeks to recover. He claims that the injury received by him was caused wholly by the want of care, the ignorance, negligence, unfitness and recklessness of the defendants and their employees, who were in charge of the car at the time, and also by the defective and imperfect equipment of the car; that the persons in charge of the car could have avoided the accident had they used proper care and diligence. In his supplemental petition he says: "If the red car had not blocked the crossing at Josephine street, and the green car had not been running at an extraordinary and dangerous speed, and if its motorman had been efficient and competent and careful, and if its brakes had been in good working order, and properly and timely Snider vs. Railroad Co. applied, the accident and damage to petitioner would not have happened, and defendants and their agents could have avoided the accident." A mass of testimony was taken to establish the fact that Sanders, who was acting actually as a motorman upon the green car, had not yet been received and paid as such by the company, but was, at the time, merely being taught the duties of the position by Roos, the regular motorman, and that he was inexperienced and inefficient; that the shoes of the green car were worn out, and by reason thereof it could not be quickly stopped, and that the car was being run at a dangerously rapid rate. The conclusions we have reached as to the actual cause of the collision would make it unnecessary for us to express any opinion as to whether Sanders was inexperienced and inefficient or not; whether the shoes of the car were worn or not, and whether the rate of speed was dangerous or not, for however reprehensible it would have been in the defendant company to have permitted cars to be run upon their road with defective appliances, to have allowed incompetent persons to serve as motormen, and to have their cars run at improper rates of speed, they would not have become liable by the mere existence of that condition of things to every person who might receive personal injuries by collision on their road. In order that these facts could have a legal bearing in this case it should appear that the injury received was the result of the breach of duty (Nivette vs. New Orleans and Lake Shore Railroad Company, 42 An. 1153; Clements vs. Electric Light Company, 44 An. 694). In our opinion the question of the experience of the motorman, the condition of the brakes and the speed of the car had nothing whatever to do with the collision, for had the motorman been perfectly experienced and careful, the brakes in thoroughly good condition and the car running at an unquestionably proper rate of speed, th› collision would none the less have inevitably happened. The plaintiff has received painful injuries which will permanently disable him from p operly attending to the discharge of the labor on which he relied for a livelihood, but we are forced to say that the blame for his situation rests upon himself. He imprudently and recklessly placed his horse and wagon across the track of the defendant company, directly in front of an approaching car, and when it was so close upon him that nothing could have saved the situation (Blakeslee vs. Consolidated St. Railway Co., 63 N. W. Snider vs. Railroad Co. Rep. 401, 402). We think it proper to say that there is nothing in this record going to show a want of proper care and vigilance on the part of Sanders, in discovering the danger of the situatior, or a want of timely effort on his part to avert it. Ryan vs. Railway, 44 An. 809. We are of the opinion that the danger was seen as soon as it was possible to see it, and that the motorman, on seeing it, made instantly every exertion to avert it. In our opinion escape from the collision was impossible. The plaintiff says that before venturing across the crossing, he locked down the track and saw no car coming up, but it is evident that he must have done so a considerable time before he actually crossed, and that he must have directed his attention, after he had once looked down, exclusively to what was occurring above Josephine street, on what is known as the down town or river side track upon which the red car was approaching. The curve by which the view below upon the lake side track is masked is at Felicity street, two blocks below Josephine street, and therefore the green car must have been below that curve when plaintiff last looked in that direction. It is a well recognized rule that a person before attempting to cross the track of a steam or electric car should look to ascertain whether prudently the crossing should be attempted (Blakeslee vs. Consolidated Ry. Co., 63 N. W. Rep. 401, 402). The rule contemplates that this should be done at a time and place when the reason upon which it is founded should be effective. When the law requires steps of diligence and caution, it will not be satisfied by the substitution therefor of vain and useless acts. Plaintiff might as well have not looked down the track at all as to have done so when the green car was masked by the Felicity street curve (Howe vs. Minneapolis, St. Paul & S. S. M. R. Co., 64 N. W. Rep. 103). The gong upon the car is shown to have been properly sounded. The motorman upon the car had no reason to anticipate that plaintiff would attempt to cross the street under existing conditions, while plaintiff knew perfectly well that the moving car was bound on its regular trip up to a point above that street on a fixed line, and must therefore inevitably cross the path he was taking as he moved across. The motorman upon a moving car may well have doubts as to whether the driver of a wagon might intend to cross his track or not, but the driver of the wagon can not but know that the purpose of the motorman is to carry his car across the street on to its Laroussini vs. Werlein. destination unless there should be some reasonable ground for his stopping or slacking his speed. There was nothing in this case to place the motorman upon his guard or make him suppose that plaintiff would seek to cross. Plaintiff cites the case cf N. O. & Texas Ry. Co. vs. French, 69 Miss. 1.1 (12 Southern Rep. 338), as going to show that although railroad companies may be allowed to run their trains at a given rate, yet it is a question determinable by circumstances whether that speed be consistent with caution. We do not question the correctness of that proposition; on the contrary, we unhesitatingly declare that authorization or permission given to a company to run its trains a a certain rate of speed would be no protection to it for running at that rate when circumstances would make its doing so inconsistent with proper care and caution. The defendants' car was not, in this case, being run above the authorized speed, and there was nothing in the circumstances connected with the Josephine street crossing which would call for its running at slower rate than it was then doing. We have examined the testimony in this case with special care. We think the judgment appealed from is correct, and it is therefore affirmed. No. 11,875. HYPOLITE LAROUSSINI VS. PHILIP WERLEIN. 48 13 48 1416 49 658 13 50 639 13 Prematurity-A breach of contract being alleged, the sult was not premature. No cause of action-If there was a contract as alleged plaintiff had no cause of $52 426 action to compel the defendant to sign a deed of lease and accompanying notes. 13 119 322 The remedy was on the contract for rental or for damages and not for specific performance to coerce the obligor to sign notes and act. 13 117 281 PPEAL from the Civil District Court for the Parish of Orleans. A Henry Denis and Branch K. Miller for Plaintiff, Appellant, cite: C. N., Art. 1142; Demolombe, Vol. 24, p. 486; 35 An. 1182; 35 An. 1221. Merrick & Merrick for Defendant, Appellee, cite: 24 An. 50 and 433; 6 N. S. 585; 3 M. 349; 1 N. S. 421; 4 La. 77; 30 An. 110, 321 C. |