#### VERGO v. SHREVEPORT RYS. CO.*

No. 4099.

Court of Appeal of Louisiana. Second Circuit, Second Division.

Feb. 16, 1932.

Cook & Cook and C. D. Egan, all of Shreveport, for appellant.

Wise, Randolph, Rendall & Ereyer, of Shreveport, for appellee.

*

 Rehearing denied March 16, 1932.

DREW, J.

Plaintiff, Joe Vergo, for himself and' for the use of his minor son, Bastiano Vergo, ten years of age, instituted this suit against the Shreveport Railways Company to recover the sum of $42,500 damages, caused by an accident occurring on April 21, 1930, about 4 o’clock in the afternoon, on Texas avenue in the city of Shreveport, near the intersection of Division avenue, in which accident plaintiff’s minor son lost his right leg.

It is admitted that the child started across Texas avenue at a point between Allen and Division avenue, and either the child was struck by a passing automobile or else a satchel of books which he was carrying in his hand was struck by the automobile, and, as the result of coming in contact with the automobile, he was thrown or knocked onto the street car track in front of an approaching street car. It is admitted that the street car passed over the child or dragged the child, and. so damaged his leg as to necessitate its amputation, also causing some injury to the hip and bruising the body. Plaintiff charges the following acts of negligence on the part of defendant: (1) That the street car was being operated at an excessive rate of speed and in excess of ten miles per hour, in violation of a city ordinance; (2) failure to stop the car after the child fell on the track, by failing to apply the brakes; (3) failure of the motorman to keep a proper lookout; and (4) failure to have the street' car equipped with fender or life-saving device of the most approved design, and failure to drop the fender or trap that the car carried.

Defendant denied the acts of negligepce charged to it by plaintiff, and alleged that the negligence or fault of the said Bastiano Vergo, or others over whom defendant had no control, was the proximate or sole cause of the .accident, in said Bastiano Vergo attempting to cross the street at a place other than an intersection in close proximity to an approaching automobile without takipg proper precaution to ascertain the approach of said automobile, and in going onto said street when the automobile was in such close proximity as to strike him, resulting in his being thrown or knocked to the pavement, with his leg across the track of the defendant company, so close to the approaching street car that it was impossible to stop the same in time to avoid the said accident; which negligence bars plaint’iff’s recovery herein.

In the alternative, it pleaded the contributory negligence of Bastiano Vergo, as above alleged, as a bar to recovery.

The case was tried before a jury in the lower court, resulting in a verdict for defendant, the jury standing ten to two, which judg*738ment was signed by tbe trial judge, and plaintiff bas prosecuted tbis appeal.

Tbe fourth charge of negligence, that tbe ear was not equipped with proper fender or trap, and that same was not lowered, bas been abandoned, and tbe same is not urged in this court in argument or brief.

Tbe third charge of negligence, that tbe motorman failed to keep a proper lookout, fails for want of proof. There is no testimony to show that be was not keeping a proper lookout, and the motorman testified that be saw tbe child before or about the time tbe automobile struck him and knocked him onto tbe track, and until tbe street car struck him.

Tbe second charge of negligence, that tbe brakes were not applied as soon as they should have been, likewise fails, as tbe preponderance of testimony is that tbe brakes were applied almost at tbe instant tbe child was struck by tbe automobile and as soon as it could be seen that be was going to be thrown on the car track. Therefore tbe only charge of negligence left is that tbe car was being operated at an excessive rate of speed and,in excess of ten miles per hour, in violation of a city ordinance.

 Tbe city ordinance provides that a street car shall not be operated in tbe business section of tbe city at a greater rate of speed than ten miles per hour. Tbe evidence is that tbe accident occurred in tbe business section of tbe city; therefore the speed of tbe street car allowed by law at tbe place of tbe accident was ten miles per hour. Plaintiff contends that even ten miles per. hour was excessive, due to tbe congested traffic at that time of day and also tbe congested traffic, due to a street carnival in operation on a vacant lot just opposite tbe scene of tbe accident. Tbis contention is without force, as tbe record discloses without contradiction that the street carnival was not in operation at that time of day, and also at tbe time of tbe accident there were not more than two cars in motion in that block of tbe street, and the only person in tbe street was tbe unfortunate Bastiano Yergo. Numerous witnesses as to tbe speed of the car vary from eight to twenty miles per hour. However, tbe majority of the witnesses place the speed of tbe car at from ten to twelve miles, or twelve to fifteen miles per hour. It is difficult for any of them to fix tbe speed other than to say that it was traveling at an ordinary'rate of speed, and to fix it in miles per hour was only to hazard a guess as no witness claimed to be an expert at fixing tbe speed of tbe street car. Tbe two witnesses best qualified to fix tbe speed of tbe car were tbe motorman and conductor, who knew their schedule and rode th.e car daily, and both of these witnesses say tbe ear was'making from ten to twelve miles per hour, and, for what it is worth, were corroborated by other witnesses, and we feel safe in accepting their testimony in regard to tbe speed of the car, which would make tbe car at tbe time of tbe accident exceed tbe speed limit, as fixed by ordinance of tbe city of Shreveport. Therefore tbe negligence charged to defendant by plaintiff of exceeding tbe speed limit of ten miles per hour, we think, is sustained by tbe evidence, but it was not tbe proximate cause of tbe accident. If tbe street car bad been making only eight miles per hour, tbe accident could not have been avoided by tbe defendant’s employees.

Tbe uncontradicted testimony is that tbe boy, Bastiano Yergo, in an attempt to cross tbe street at a place other than an intersection, ran out between two parked automobiles, directly in tbe path of tbe only automobile moving at that time in that particular block of Texas avenue. ' That tbe automobile struck him and knocked him onto tbe track of tbe defendant company, directly in front of an on-coming street car. Tbe distance tbe street car was from him at tbe time be fell on tbe track, according to tbe witnesses, varies from five feet to sixty feet, but tbe great preponderance of testimony is that it was not more than twenty feet, and certainly too close to tbe car for it to have been stopped, bad it been making much less than speed limit. A number of plaintiff’s witnesses placed tbe distance at from twelve, to twenty feet, and stated that it was too close to tbe car for tbe motorman to have bad time to stop the car. Several witnesses testified that they turned their heads upon seeing tbe boy thrown onto tbe track, to prevent them from seeing him run over.

At tbe time plaintiff filed tbis suit, be undoubtedly thought tbe distance was not more than twenty or twenty-five feet in front of tbe ear, as be so alleged. The testimony shows that the boy was not unconscious at any time, and ,also shows that be attempted to remove himself from tbe track, and tbe only reason be did not remove himself from tbe track was because tbe car was too close to him and be did not have time to do more than raise up on bis elbows.

Bastiano Vergo’s father testified that be bad repeatedly warned him of the danger of crossing tbe street, other than at an intersection, and Bastiano testified that be knew the danger of attempting such a crossing of tbe street. He was in bis eleventh year, born in tbis country, and bad attended school for four years, making a grade every year. He was capable of knowing what be was doing and must be held responsible for bis acts of negligence. His negligence in running out into tbe street in- front of an automobile which struck him and threw him onto tbe track in front of tbe moving street car, too close to *739the ear for the motorman to have time to stop the car, was the proximate cause of the accident, and the speed of the car- was not the proximate cause of it.

The uncontradicted testimony of an expert on stopping street cars at different speeds is that a ear, moving ten miles per hour, when suddenly confronted with an emergency, cannot be brought to a stop in a less distance than fifty-eight feet. This testimony is un-contradicted, and the court, not being experts in this line, necessarily in this case accepts it as true.

The last clear chance doctrine urged by plaintiff has no application in this case. Hayes v. Gunter Bros., 14 La. App. 402, 129 So. 401; Collier v. Frank Varino & Co., 153 La. 636, 96 So. 500.

Plaintiff contends that, although the defendant was not liable for the accident, due to the fact that its street car was exceeding the speed limit by one or two miles per hour, the child was dragged a distance of possibly fifteen to twenty feet farther than it would have been had the car been traveling within the speed limit, and that the defendant is therefore liable for the additional injuries caused to the child by dragging it this extra distance, and cites in support of this contention the case of Pilsbury v. O’Keefe, Receiver et al., 1 La. App. 493. The case cited has no application here for the reason that there is no proof that the child received any additional injuries after the initial accident. In the Pilsbury Case, it was conclusively proved that the child’s hip was injured after the ear had stopped, due to the negligence of the motorman in backing the ear over it again, against the instructions of the conductor.

The contributory negligence of Bastiano Vergo was the proximate cause of the accident and bars his recovery in this case. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.