Davis v. Owen

Decision Date05 March 1979
Docket NumberNos. 62552,s. 62552
Citation368 So.2d 1052
PartiesRebecca DAVIS, widow of Frank Schief, Jr., et al. v. John P. OWEN and New Orleans Public Service, Inc. Donna SCIPIO, wife of/and Lester Nicholas v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owens. Jeanette JOHNSON, wife of/and Warren Johnson v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owens. Patricia SANDERS and Edna Leon v. NEW ORLEANS PUBLIC SERVICE, INC., et al. Debra ALEXANDER v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owens. Pedro CHAMORRA et al. v. NEW ORLEANS PUBLIC SERVICE et al. Johnnie JOHNSON v. John P. OWEN and New Orleans Public Service, Inc. to 62557 and 62564.
CourtLouisiana Supreme Court

Floyd F. Green, New Orleans, for defendants-respondents.

Warren M. Simon, Jr., John J. McCann, Herman M. Schroeder, New Orleans, for Davis, et al.

George W. Reese, New Orleans, for Scipio, etc.

Janine Dingleman, Martzell & Montero, New Orleans, for Jeanette Johnson, etc.

Daniel J. Caruso, New Orleans, for Sanders, etc.

Mrs. Bernette J. Johnson, New Orleans, for Alexander.

David A. Kattan, New Orleans, for Chamorra, et al.

Charles R. Maloney, New Orleans, for Johnnie Johnson.

CALOGERO, Justice. *

We granted writs in seven cases consolidated for trial below which arose out of an automobile-bus collision, to review a Court of Appeal decision which reversed district court judgments favorable to the plaintiffs. Johnson v. Owen, 359 So.2d 272 (La.App. 4th Cir. 1978), writs granted in 362 So.2d at 784, 785 and 786.

We recite the basic facts, which are undisputed, as they are alleged by the defendant, New Orleans Public Service, Inc. (hereafter, NOPSI).

These seven personal injury lawsuits stem from an intersectional collision between a Cadillac automobile and a NOPSI bus. Seven bus passengers received various injuries ranging from mild to moderate in degree. Davis v. Owen, No. 62,552 in this Court, is a suit by the widow and heirs of one Frank Schief which alleges that his death was caused when a blow to his lower right abdominal quadrant sustained during the accident resulted in peritonitis secondary to trauma.

The accident took place at the intersection of Elysian Fields Avenue and North Prieur Street in New Orleans. The bus was on Elysian Fields Avenue travelling in the direction of the lake, following a path in the first moving lane next to the parking lane. The Cadillac automobile was proceeding on North Prieur Street in a downtown direction, toward Gentilly, or away from Canal Street. There were no other vehicles in the vicinity at the time of the accident.

A description of the intersection and area is as follows: Elysian Fields Avenue is a wide neutral ground boulevard. Each side of Elysian Fields Avenue has three moving lanes for traffic and a parking lane; each lane is approximately twelve feet wide. The lakebound and riverbound sides of Elysian Fields Avenue are separated by a neutral ground having a width of sixty-two feet (62'). North Prieur Street is a two-way street for traffic going uptown and downtown. It measures thirty feet in width. There are stop signs facing North Prieur Street before entry to Elysian Fields Avenue. Both streets are asphalt paved.

The collision took place in the lakebound moving lane, immediately adjacent to the parking lane, of Elysian Fields Avenue, in the middle of North Prieur Street. Both vehicles came to rest about four to five feet from impact, the bus still in its lane of traffic. The stop sign which faced the Cadillac was a stop sign on the west or Canal Street side of Elysian Fields Avenue adjacent to the riverbound lanes for traffic on Elysian Fields Avenue. As previously noted, the accident did not take place in the lanes for riverbound traffic. The Cadillac crossed four lanes of the riverbound side of Elysian Fields Avenue (approximately forty-eight feet), an additional width of the neutral ground (another sixty-two feet), and almost three full lanes of lakebound traffic (approximately another thirty to thirty-six feet) before the front end of the NOPSI bus struck the right side of the Cadillac.

The case was tried in the district court without a jury. The trial judge found:

1) The driver of the Cadillac automobile was negligent in failing to yield to the traffic on Elysian Fields Avenue, and in entering the intersection of North Prieur Street and Elysian Fields Avenue without regard to the dangerous situation created.

2) The NOPSI bus driver was also guilty of negligence in failing to use due care while driving his bus on Elysian Fields Avenue, and for failure to bring his bus under control after having seen the automobile in question.

3) The bus driver had ample time to bring his bus under control without the mishap occurring at North Prieur Street and Elysian Fields Avenue.

Accordingly, the trial court entered judgments against John P. Owen, the driver of the Cadillac, and NOPSI, in favor of the respective plaintiffs and in the respective amounts set forth: 1) Rebecca Davis, widow of Frank Schief, Jr., an amount of $141,590.66; 1 2) Rose Mary Schief Fox, surviving daughter of Frank Schief, Jr., an amount of $1,000 for loss of love and affection; 3) Eva Lee Schief Lee, surviving daughter of Frank Schief, Jr., an amount of $500 for loss of love and affection; 4) Wallace Calvin Schief, surviving son of Frank Schief, Jr., an amount of $500 for loss of love and affection; 5) Donna Scipio, wife of/and Lester Nicholas, an amount of $2,460.00; 6) Jeanette Johnson, wife of/and Warren Johnson, an amount of $1,500; 7) Edna Leon, an amount of $1,937.65; 8) Patricia Sanders, an amount of $1,214.15; 9) Debra Alexander, an amount of $2,300.00; 10) Victoria Chamorra, wife of/and Pedro Chamorra, $2,330.00 and 11) Johnnie Johnson, $4,060.00.

Defendant NOPSI appealed, taking issue with the trial court finding on liability and, alternatively, with the trial court's award to the Schief widow of $78,616 for loss of support and $50,000 for her husband's pain and suffering. By way of answer to the appeal, Schief's widow and his three major children took issue with the trial court's awards for loss of love and affection made to them. The Schief children also sought to recover for their father's pain and suffering the sums for which they had sued. (Each child had sued for $16,666 and identified that sum as one-third of one-half of the amount attributable to their father's pain and suffering.)

In the Court of Appeal, after a three-judge panel split in favor of reversing the trial court, the case was reargued to a five-judge panel, which by a 3-2 vote, with one judge in the majority concurring, reversed the decision of the trial judge in all seven consolidated cases, rendering judgments in favor of appellant NOPSI and dismissing the plaintiffs' suits.

Because the Court of Appeal decided the liability issue of the case in NOPSI's favor it did not have to reach the alternative contentions of defendant challenging the cause of death of Frank Schief and the awards made to the Schief widow for loss of support and for pain and suffering. Likewise, the Court of Appeal did not have to decide the claims of Schief's widow and children for additional recovery for loss of love and affection, nor the Schief children's claim for an award recognizing their entitlement to recovery in consequence of their father's pain and suffering.

We must first decide the matter of NOPSI's liability; all plaintiffs in the seven suits consolidated in the trial court urge us to reverse the Court of Appeal on this issue. Because a finding adverse to NOPSI requires that we also direct our attention to the other issues previously mentioned, we begin our discussion of the issues presented in this case by setting forth the basis upon which we determine to reverse the Court of Appeal judgment.

Because plaintiffs were fare-paying passengers on a public conveyance 2 and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence. As this Court stated in Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).

"The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.

A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.

The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care." (citations omitted)

The trial judge concluded that NOPSI failed to carry its burden, that its driver had not exercised the highest degree of care, that he was negligent. NOPSI appealed this finding.

In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnishes a reasonable factual basis for those findings, unless it finds manifest error. "Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). If, however, the appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that Some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require...

To continue reading

Request your trial
70 cases
  • VIA Metro. Transit v. Meck
    • United States
    • Texas Supreme Court
    • June 26, 2020
  • Rosell v. ESCO
    • United States
    • Louisiana Supreme Court
    • September 12, 1989
    ... ... United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La.1978); A. Tate, "Manifest Error" Further ... ...
  • 93-1497 La.App. 3 Cir. 6/1/94, Menard v. Winn Dixie Louisiana, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 1, 1994
    ... ... The Louisiana Workers Compensation Act in effect on the date of plaintiff's injuries is controlling, as we stated in Miller v. J.P. Owen Co., Inc., 509 So.2d 1038, 1040, 1041 (La.App. 3d Cir.), writ denied, 514 So.2d 455 (La.1987). The 1989 amendments to our state's workers ... United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La.1978); A. Tate, "Manifest Error" Further ... ...
  • Schwamb v. Delta Air Lines, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 10, 1987
    ... ... Galland v. NOPSI, 377 So.2d 84, 85-86 (La.1979); Davis v. Owen, 368 So.2d 1052, 1055 (La.1979); Wise v. Prescott, 244 La. 157, 151 So.2d 356, 359 (1963) ...         Schwamb, a fare-paying ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT