*96JACOB BABACH3IT vs BLIÍIu. Appellant.

?To. one

c, This is a dr:,ajo suit growing cut of a. collision of automobiles.

Petitioner avers tint while driving up St. Uñarles Avenue on tlx- weed side between Octavia crd Joseph Streets defendant's automobile ran into hie automobile and damaged it to the orient oí C219.ÓS for v.hich ho prays judg.'.ort.

For answer defendant alleged that at the time of the accident his car was being driven down St. Charles Avenue, also on the wood side, owing to repairs going on to the pavement on the river sido, which compelled traffic to the wood side; that he was driving nearest to the neutral ground and blew his horn twice to warn the plaintiff; that the plaintiff was noi'lookinr ahead, and inctead of driving ahead to the right crossed the street and drove into defendant's car end injured it, for which he clriioo da:cages.

There v.as judgment for plaintiff, rejecting’the recon-ventioncl demand, and defendant has appealed.

The reasons for judgment of the learned trial judge woro as follows:

"It appears that the plaintiff was going up St. Charles Avenue at a fairly good rate of speed and-when he reached a point near Octavia Street, he noticed ,3 vehicle standing near that corner and obstructing his straight (course); to avoid this wagon he turned hi 3. machine towards the neutral ground, 3till going $£ & *97legal rat'e of speed. Almost simultaneously ghd-for a like reason, the machine of defendant, 'by his-chauffeur, sv/erved to the right and pointed.tovra.rds the neutral ground. It is entirely probable that neither" chauffeur saw the other in time to avoid, the accident. The fact however remains that plaintiff, under the--o!rdi> nance,: was entitled to the right- of way and was. entitled to go at the speed he was going. The defendant¿-h®wev.er,. was not in the Road, where he was entitled- to he, d'. -e.,..' the right hand side of St. Charles Avenue; coming down' town, which at that poiiit was the. le¿al '£lace for him'to be. I therefore feel that plaintiff was within the law at tha time.-of the accident; that defendant was not, and that he was to blame. Judgment for plaintiff".

"He can add-but little to these reasons. The evidence of-plaintiff and of two witnesses, disinterested and uniaipeached, establish^that plaintiff was driving up St. Charles Avenue oh. the right side of the wood side;, when he reached Octaviad Street, there was a wagon standing in front of Daneel Park, which forms the comer of St. Charles and- Octavia Streets; - 'in order'to avoid the wagon and proceed ahead of it, the plaintiff swerved his car to the left; in so doing, plaintiff came'in contact with defen- . dant's caf which was coming down St. Charles Street on-the wood, side, but as near the neutral ground as possible; plaintiff had not seen defendant's-car, but the occupants of defendant'sysa'r had seen plaintiff's car; the traffic regulations reauir'e.autót j mobiles going down town to drive upon the rive side óf St.'Charlhe Street, and those going up town to take the wood' side; defendant-'? justification for taking the wood side of the street; is'-thet the-" i-iver side was undergoing repairs and that the street waVhlócked; the three witnesses just mentioned testify that the street .-was not blocked between Octavia and the street above.;-that it was blocked only beyond arl above Nashville Avenue;' plaintiff swfeffS. ilct when bo tuned to the left to avoid the wagon, he. did not *98áee tbe defendant's oar, - and that they crashed into each other,'

There were three passengers' in defendant's.ear, namely the defendant's Wife, another lady, a resident of New Jersey, and the chauffeur - defendant himself was not in it. The chauffeur did not testify because he could not be found. The two ladies testified. They say that the river side of St. Charles Street, in that square, v/as blocked on account of repairs to the street. We think tho ^epo;^ranc^of^t^timony on that subí ect is with the plaintiff^, we therefore come to the conclusion 'that the street was not blocked in that particular square, and that the defendant was on the wrong side ofthe street. Of course this fact could not excuse plaintiff Sfos running into his car, if it had been shown that by the exercise of reasonable care plaintiff could still have avoided the collision. But 210 such condition is shown. The presence of the wagon explains plaintiff's reason for not seeing defendant's car, and for swerving to the left. No fault can be imputed to him under the circumstances. The two ladies testified as to certain admissions of fault and liability nade by the plaintiff immediately after the accident. But we do not think they are established, with sufficient certainty-

Judgment affirmed.

October 17th, 1521.