Adams v. Great Am. Indem. Co.

• Decision Date: 25 November 1959
• Docket Number: No. 9083,9083
• Citation: 116 So.2d 307
• Parties: Jack Aaron ADAMS et al., Plaintiffs-Appellees-Appellants, v. GREAT AMERICAN INDEMNITY COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 307

116 So.2d 307

Jack Aaron ADAMS et al., Plaintiffs-Appellees-Appellants, v. GREAT AMERICAN INDEMNITY COMPANY, Defendant-Appellant.

No. 9083.

Court of Appeal of Louisiana, Second Circuit.

Nov. 25, 1959.

Rehearing Denied Dec. 22, 1959.

Certiorari Denied Feb. 15, 1960.

Lloyd F. Love, Ferriday, for plaintiffs-appellees-appellants.

Dale, Richardson & Dale, Nathan M. Calhoun, Vidalia, for defendant-appellant.

GLADNEY, Judge.

This suit in tort was instituted by Jack Aaron Adams and Clara Rabb Adams, seeking damages for the death of their eleven year old son, Theo Rabb Adams, and for serious injuries to their eight year old daughter, Jacqueline Ann Adams. The defendant, Great American Indemnity Company, is liability insurer of Clerel White, a school bus driver. The action arises from an accident which occurred on U.S. Highway No. 84 about two miles west of Ferriday, in Concordia Parish, on the afternoon of October 21, 1950, when the two Adams children, after alighting from the bus and crossing the paved portion of the highway were struck by an automobile driven by Randall Brian, who, while intoxicated, was traveling at a high rate of speed. Following a trial wherein, save for one exception, the evidence adduced was mostly undisputed, the trial court awarded judgment in favor of plaintiffs, and both defendant and plaintiffs have appealed.

The plaintiffs were on October 21, 1955, a young married couple living on the south side of U.S. Highway No. 84, about two miles west of the city limits of Ferriday. Their above named children were normal, healthy children and between parents and children there had always been a close family relationship. The children attended the Ferriday elementary school and were transported to and from the school in a school bus owned and operated by Clerel White under a contract with the Concordia Parish School Board. The vehicle was a standard school bus as used regularly in the State of Louisiana, and was equipped with the usual safety equipment of school buses, including a large rearview mirror of such size and so situated the driver could observe fully the road to the rear of the bus.

On the afternoon of the date aforesaid, the two children were being transported in the school bus by its operator, Clerel White, from the school to their home. When the bus arrived at the Adams home it was brought to a stop in the north or westbound traffic lane, at a point where its front bumper was approximately opposite the driveway of the Adams residence. While the children were proceeding from the bus to the Adams residence which required them to cross over the south lane for eastbound traffic, an automobile driven by Randall Brian traveling westerly at a high rate of speed came from behind the school bus and struck the children after they had crossed the paved portion of the highway. Theo Rabb Adams died shortly after being taken to the hospital and Jacqueline Ann Adams was hospitalized for twenty-two days. Her injuries included a fracture of the left femur and fractures of both bones of the right lower leg, which required surgery on both legs. At the time of trial she had two prominent scars on her legs, one on the left thigh about seven inches long and one on the right lower leg about two inches long.

The accident occurred about 3:20 o'clock P.M. with the weather clear and the concrete road surface dry. U.S. Highway No. 84 at that point has a width of pavement of twenty feet, and an additional width of twelve feet is added by shoulders. At the scene of the accident the highway to the rear of the bus is straight for approximately .4 of a mile or about 2,000 feet. The official report made by Trooper M. E. Barnette of the Louisiana State Police, shows that as Brian's vehicle approached the scene of the accident, at which time the school bus was stopped, there were four vehicles which had stopped upon signal of the school bus driver. One of these was a truck driven by C. W. Diffey, which was traveling east and had come to a stop in front of the school bus in the south lane. The other three vehicles were stopped behind the school bus and these were traveling west. These were a pick-up truck loaded with lumber operated by Rev. Ralph Hatten in which Willie Kelley was a passenger, an automobile driven by Mrs. Connie H. Storey in which her husband, L. A. Storey, was a passenger, and a third vehicle, the identity of which has never been learned.

Eyewitnesses to the accident were Clerel White, Sr. and his son, Clerel White, Jr., Mr. and Mrs. L. A. Storey, Rev. Ralph Hatten, Willie Kelley, C. W. Diffey and Randall Brian.

The report of Trooper Barnett reflects the following situation:

'Vehicle #2 was stopped in west bound traffic lane discharging children from the school bus. The driver of the bus had a flagman out in the road with a red flag for the children to cross the highway. There were three vehicles behind the bus, which had stopped and a truck and semi-trailer had stopped in the east bound lane for the school bus to discharge the children. The flagman was in the road and the children had crossed over the highway and were on the driveway going into the yard of Jack Adams residence when vehicle #1 came from behind the school bus disregarding the flagman and hitting the two children. Vehicle #1 passed over the body of the boy and throwing the girl about 20 feet. There were no visible signs where vehicle #1 had applied brakes. After hitting the two children the vehicle traveled 217 before it came to a stop. When the vehicle stopped, the driver Randall Brian threw a pint bottle of whiskey into the ditch of which about half of the whiskey was gone. While questioning Randall the subject stated he was going 70 MPH when he saw the children and applied his brakes. When asked about his drinking, he stated what was gone out of the bottle, he had drank himself and he also stated that he had too much to be driving * * *.'

Evidence was adduced by counsel for both litigants to determine the time required for a child to cross the highway. Defendant's tests disclosed the average time required for several different children to step from the school bus and cross the highway was 5.68 seconds. The tests conducted by plaintiffs' counsel were conducted with a ten year old boy and showed the time required by this child to cross the highway varied from 1.8 seconds when the child ran across the highway to 4.1 seconds when he crossed the highway walking. This evidence was tendered by the attorney for plaintiffs for the purpose of evidencing that the Brian automobile could not have been more than eight hundred feet from the school bus when the Adams children were instructed to cross the highway.

By authority of LSA-R.S. 17:164 the State Department of Education is authorized to adopt rules and regulations governing the operation of school buses used in transporting students to and from schools. Pursuant to this authority certain instructions were set forth in Department Bulletin Number 785, which provides in part:

'In discharging pupils from the bus, who must cross the highway, the responsibility of safe crossing rests with the driver. However, it is recommended that a school bus safety patrolman be used to assist the driver in crossing the pupils. Pupils should be instructed by the driver to assemble at a point about 6 to 8 feet in front of the bus, but on the shoulder of the highway; the patrolman should take his position about five feet in front of the left fender of the bus, and extend a red flag into the middle of the roadway. When the bus driver has satisfied himself that it is safe for the pupils to cross, he should signal them to cross. As soon as the pupils are safely across the traveled part of the highway and are out of danger, the patrolman should re-enter the bus and the driver should close the door and instruct those pupils handling the flags in the bus, to withdraw them. He should then signal traffic to move, and should put his bus into motion without delay.'

The contract between the Concordia Parish School Board and Clerel White was verbal, but subject to the rules and regulations of Bulletin Number 785 which also require a school bus driver to 'see that pupils are protected from passing automobiles, trucks and other vehicles at such times when they are getting into or off of the bus.'

In his written reasons for judgment the trial judge made this comment:

'It appears that the method followed in discharging the children where they must cross the highway in order to reach their homes, is that after all the warning signals are out and the bus has come to a stop, the front side door is opened and the flagman or flag boy (in this case, the bus operator's son, age 12 years) alights from the bus and crosses in front of the bus to the passing lane (here the south lane of the highway) and there with his flag in hand he observes the traffic in both directions, the bus operator remains in his seat where he can observe the traffic in front of him and through his rear view mirror can observe the traffic that is following. Now after these traffic observations and it appears that the children can cross the highway with safety, the children are signalled to cross over. It appears that this routine was followed here. However, in this instance, while these children were only partly over the highway, this Randall Brian, driving at a rapid rate of speed sought to pass the bus and in so doing his automobile struck these two children.' (Emphasis supplied.)

Continuing, the judge said:

'From the record it appears and is so testified by the operator of the bus, that there was nothing to obscure his vision through his rear view mirror for a distance of some two thousand feet and nothing to obscure the vision of the flag boy of the following traffic for the same distance. It appears to the court that the bus operator and the flag boy should have seen what they could have seen.'

His holding, therefore, was that Clerel...