Baquif v. Meraux
| Citation | 123 So. 338,11 La.App. 368 |
| Decision Date | 24 June 1929 |
| Docket Number | 11,891 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BAQUIF v. MERAUX |
Appeal from Twenty-ninth Judicial District Court, Parish of St Bernard. Hon. Fred A. Ahrens, Judge ad hoc.
Action by Olivia Marie Baquie against Leon Meraux.
There was judgment for plaintiff and defendant appealed.
Judgment affirmed.
James G. Schillin and Wm. J. O'Hara, of New Orleans, attorneys for plaintiff, appellee.
Eraste Vidrine and M. E. Schaefer, of New Orleans, attorneys for defendant, appellant.
Plaintiff sues the defendant for damages for physical injuries which she suffered by reason of being run into by the automobile of defendant, which was being driven by his daughter. There was judgment below for $ 3000 and defendant has appealed. Plaintiff has answered the appeal, asking that the amount be increased to $ 5000.
The plaintiff, Miss Olivia Marie Baquie, with three other female companions, were walking on the right side of the St. Bernard highway in the direction of the City of New Orleans. The defendant and his daughter were driving along the same highway in the same direction, and, as they reached a point upon the road near the "Pakenham Oaks, " and just below the city, ran into and injured the plaintiff.
The defense is, first, a denial of responsibility upon the ground that defendant was neither the owner nor the driver of the automobile at the time of the accident; secondly, a denial of negligence on the part of his daughter, and, in the alternative, a plea of contributory negligence.
The first defense is based upon the averment that the car which caused the injury was the property of defendant's daughter, a young woman twenty-four years of age, having been given her by her father shortly after its purchase. The evidence in support of this contention consists of the statement of the father and daughter to that effect. It is admitted, however, that the car was bought by the father paid for by him, registered and insured in his name, and that he rode in and drove the car when it pleased him to do so. At the time of the accident it was being driven in defendant's service by his daughter. Defendant has failed to establish to our satisfaction that he was not the owner of the car. Miss Meraux testifies that she was driving very slowly--ten or fifteen miles per hour she estimates her speed to have been--that she was constantly blowing her horn, and, as she neared the young women, she slackened her speed to five miles per hour and could have stopped, but did not do so for the reason that plaintiff and her companions started to move off the roadway and out of her path, and would not have been hit by the car if plaintiff had not suddenly reversed her steps and moved quickly to the left and in the path of the automobile. Plaintiff, corroborated by her three companions, testifies that she was not aware of the approach of the automobile until just before it struck her, when the horn was blown and she heard one of her companions shout a word of warning to her.
The accident happened on December 14, 1926, at about 1:00 p.m. The road was straight and the weather clear. The group with which plaintiff was walking could be plainly seen, and were seen by Miss Meraux, long before she reached the scene of the accident.
When the driver of an automobile sees four pedestrians walking along the highway in front of him, it is his duty to take extraordinary care to prevent injuring them, and he must take reasonable precautions to make certain that the pedestrians are aware of his approach. The duty of care rests more heavily upon the motorist than the pedestrian. The degree of care necessary to be exercised must be commensurate with the danger involved.
"The rule of reasonable precaution which the law enjoins upon a driver of an automobile upon a public highway includes the necessity of making certain that foot passengers are aware of the rearward approach of the vehicle; that the vehicle itself is at such a distance from the pedestrian as to avoid running over him in his sudden panic from surprise at knowledge of its unexpected approach; and...
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