Abate v. Hirdes

• Decision Date: 26 November 1928
• Docket Number: 11,115
• Citation: 121 So. 775,9 La.App. 688
• Court: Court of Appeal of Louisiana — District of US
• Parties: ABATE ET AL. v. HIRDES ET AL

121 So. 775

9 La.App. 688

ABATE ET AL. v. HIRDES ET AL

No. 11,115

Court of Appeals of Louisiana, Orleans

November 26, 1928

Rehearing Refused January 7, 1929.

Writs of Certiorari Refused by Supreme Court February 13, 1929.

Appeal from Civil District Court, Parish of Orleans. Division "E." Hon. Wm. H. Byrnes, Jr., Judge.

Action by Nick Abate et al., against Christopher Hirdes et al.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Woodville and Woodville, of New Orleans, attorneys for plaintiffs and appellants.

Deutsch and Kerrigan, of New Orleans, attorneys for defendants appellees.

JANVIER J. WESTERFIELD, J., dissents.

OPINION

JANVIER J.

Plaintiffs' son, a child four years old, was killed by an automobile truck at the corner of Perdido and Clara Streets in New Orleans. The child had been allowed by its parents to wander into the street and, in rolling his hoop across the street, ran into the path of the approaching truck and was killed. There are two defendants, the owner and driver of the truck, and the Item Company, Limited. Plaintiffs contend that The Item Company, Limited, is responsible for the negligence of the driver of the truck, if there was negligence, by reason of the fact that the truck was engaged in the delivering of newspapers published by that company, and because the driver, Christopher Hirdes, was paid a weekly salary or allowance by the defendant company. Both defendants contend that the operator of the truck was not negligent; that the speed was not excessive, and that the approximate cause of the accident was the negligence of the parents of the child in allowing it to wander into a place of danger. It is argued that the speed of the truck at no time exceeded fifteen miles an hour, and that such a speed is reasonable and cannot constitute negligence.

The speed of automobile trucks and other vehicles should be regulated in accordance with the surrounding circumstances. What might be excessive in one case might be entirely reasonable in another, and a speed of fifteen miles, while entirely reasonable under some circumstances, would be grossly excessive under others. It appears to us here that either the speed of the truck was excessive, or the driver was not exercising proper care and caution in driving it, or that he did not take the necessary steps to discover the presence of the child, and to stop the truck after discovering it.

It is argued that the negligence of the parents of the child, in allowing it to wander into so dangerous a place as a public street, precludes recovery on their part, for the reason that this negligence continued to the very moment of the accident and prevents the application of the doctrine of the last clear chance.

It appears to us that the parents were negligent in allowing the child to wander into the street, but we believe that this negligence, after the child left the presence of the parents, and after they no longer could instantly control its actions, became passive negligence and no longer actively continued. If this negligence became passive, then the child, as long as he remained in a position of danger, was in the same situation as is an inanimate object, such as a truck abandoned by its driver. It was held by this court in Canal Steel Works, Inc., vs. City of New Orleans (Public Belt Railroad), No. 10,415, decided on November 13, 1928, that, if a truck is left on train tracks, while the placing of it there may be negligence, yet, after the driver has left it and gone away, his negligence becomes passive; and that if the engineer of the approaching train, by the exercise of ordinary care, could discover its presence in time to avoid striking it, his failure to do so is the proximate cause of the accident. In other words, the doctrine of the last clear chance applies.

To the same effect is the decision of this court in Alexandria Refining Co. vs. Missouri Pacific, 1 La.App. 470, in which the court said:

"We think this case governed by the doctrine of those decisions and not by that applied in the cases cited by defendant; believing as we do that the truck was and for some time had been halted on the track when backed into by defendant's train whose crew was negligent in not discovering it and actively so in backing against it, when such negligence, therefore, being the proximate cause of the accident, while the negligence of the truck driver, though continuing down to the moment of the accident, was at that time merely passive and hence not the proximate cause but only a condition of the accident."

The same reasoning applies here. The "owner" of the child, to-wit, the parents, (the child being itself incapable of being contributorily negligent), were unquestionably negligent in allowing him to wander into the street, and had they remained in his immediate presence, certainly every instant it remained in the street would have constituted a fresh act of negligence on their part and this negligence would have been held to preclude the application of the doctrine of the last clear chance. However, when the parents left the child, so that they could no longer instantly control his movements, their negligence then became passive and, as we have...