Biggs v. Verbois

• Decision Date: 22 February 1963
• Docket Number: No. 5772,5772
• Citation: 151 So.2d 172
• Parties: Oscar L. BIGGS, Plaintiff-Appellee, v. George M. VERBOIS, Sammie P. Verbois, and Indiana Lumbermens Mutual Insurance Company, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 172

151 So.2d 172

Oscar L. BIGGS, Plaintiff-Appellee, v. George M. VERBOIS, Sammie P. Verbois, and Indiana Lumbermens Mutual Insurance Company, Defendants-Appellants.

No. 5772.

Court of Appeal of Louisiana, First Circuit.

Feb. 22, 1963.

Rehearing Denied March 29, 1963.

Certiorari Refused May 14, 1963.

Kantrow, Spaht & Kleinpeter, by Carlos G. Spaht, Baton Rouge, for appellants.

Strickland & Cole, by J. W. Cole, Jr., Port Allen, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

ELLIS, Judge.

On October 31st, 1960 at about 4:30 P.M. Patricia Biggs, eleven year old daughter of the plaintiff, was riding her bicycle in a northerly direction on Longfellow Drive in the City of Baton Rouge, Louisiana, and while attempting to cross the intersection of Longfellow Drive with Evangeline Street was struck and seriously injured by an automobile belonging to the defendant, George M. Verbois, and being driven at the time by his wife, Mrs. Sammie Verbois, which resulted in the institution of the present suit by the plaintiff individually for loss of time from business operation, which necessitated additional help in the sum of $500.00, medical expenses including hospital bills, doctor bills, drugs, hospital equipment, etc., in the sum of $1,468.00 and estimated future medical expenses in the sum of.$1000.00 or a total of $2468.00. Plaintiff is also suing in behalf of his daughter, Patricia Biggs, for shock, physical pain and suffering in the sum of $10,000.00 and permanent future disability in the sum of $15,000.00.

The case was duly tried, and for oral reasons assigned, judgment was rendered in favor of the plaintiff individually in the sum of $1468.00, together with legal interest from date of judicial demand until paid and for all costs, and for the use and benefit of his minor child, Patricia Biggs, and against the defendants, George M. Verbois, Sammie P. Verbois and Indiana Lumbermens Mutual Insurance Company, jointly and in solido, in the full sum of $6,500.00, together with legal interest from date of judicial demand until paid.

From this judgment the defendants have suspensively appealed.

The Specification of Errors set forth by counsel for defendant is as follows:

'1. The trial court erred in finding the driver of an automobile guilty of negligence where such driver was proceeding at a lawful lawful rate of speed on a right of way street and collided with a bicycle at an intersection where the bicycle rider ran the stop signs requiring traffic entering such intersection to stop and yield the right of way to traffic entering or nearing such intersection, even though such auto driver failed to see the bicycle until shortly before the accident because even if the driver had seen such bicycle rider, some distance prior to entering the intersection, she would have the right to assume that such rider would obey the law and bring her bicycle to a stop and allow the closely approaching automobile to proceed on through the intersection.

'2. The trial court erred in holding that the last clear chance doctrine has any application where the facts are as shown in this case, that is, where there was an intersection collision between an automobile and a bicycle where the driver on the right of way street collided with the bicycle rider on an inferior street where both vehicles entered the intersection at about the same time for the following reasons:

'(a) The bicycle rider was not in a position of helpless peril for such time as the automobile driver saw or should have seen her and had an opportunity to avoid striking her.

'(b) For the negligent plaintiff to be given the benefit of the discovered peril or last clear chance doctrine, he must prove three things: (1) plaintiff in a position of peril of which he is unaware or unable to extricate himself; (2) defendant in a position where he actually discovered or should have discovered the plaintiff's peril; (3) at such time that the defendant could have by the exercise of reasonable care, avoided the accident.

'(c) The active negligence of the bicycle rider continued down to the very moment of the accident.'

Counsel for the defendant in his specification of errors, paragraph (b) has correctly stated the three things that a negligent plaintiff must prove in order to be given the benefit of the last clear chance doctrine. The test set forth in counsel's specification of errors has been approved and applied in innumerable cases which presented the question of the application of the last clear chance, and we fully accept the soundness of the discussion of the application of the doctrine and the necessity of proof by the plaintiff of the three elements necessary for its application as set forth in the recent case of Lavigne et al. v. Southern Farm Bureau Casualty Company, La.App., 125 So.2d 430, cited and relied upon by counsel for defendants.

In support of Specification of Errors No. 1, counsel stated in his brief that our jurisprudence is replete with cases holding that the driver on a right of way street has the right to assume the drivers of other vehicles approaching the intersection on inferior streets will obey the traffic laws and allow the driver on the right of way street to proceed across. In support of this statement he cites Benoit v. Vincent, 1961, La.App., 132 So.2d 75, in which the Court stated:

'The driver with the right of way is ordinarily entitled to proceed towards and into the intersection upon the assumption that inferior traffic will respect his superior right to proceed, Unless he should reasonably realize in time to avoid an accident that the inferior traffic will continue into the intersection in disregard of the right of way. Randall v. Baton Rouge Bus Co., 240 La. 527, 124 So.2d 535; Youngblood v. Robison, 239 La. 338, 118 So.2d 431; Henderson v. Central Mutual Ins. Co., 238 La. 250, 115 So.2d 339; Steele for Use and Benefit of Steele v. State Farm Mutual Ins. Co., 235 La. 564, 105 So.2d 222; Fontenot v. Liberty Mutual Ins. Co., La.App., 3 Cir., 130 So.2d 462; Warner v. Insurance Co. of State of Pennsylvania, La.App., 3 Cir., 129 So.2d 320; Hernandez v. State Farm Mutual Auto Ins. Co., La.App., 3 Cir., 128 So.2d 833; Andrea v. Hicks, La.App. 3 Cir., 125 So.2d 251.' (Emphasis added.)

Also, Central Louisiana Electric Company v. Hodges et al. (La.App.3rd Cir. 1962), 137 So.2d 132; wherein the Court stated:

'The motorist on a right-of-way street, with knowledge of the location of a stop sign warning motorists approaching from an inferior intersecting street to stop, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and Such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed or is not going to observe the law. Koob v. Cooperative Cab Co., 213 La. 903, 904, 35 So.2d 849; McCoy v. State Farm Mutual Ins. Co., La.App. 3 Cir., 129 So.2d 66; Benoit v. Vincent, La.App. 3 Cir., 132 So.2d 75.' (Emphasis added)

And, finally, counsel cited in support of Specification of Error No. 1 as well as No. 2, which is strictly applicable to the doctrine of last clear chance, the case of Lavigne et al. v. Southern Farm Bureau Casualty Company, La.App., 125 So.2d 430. We fully accept the law as stated in these cases cited as applicable to Specification of Errors No. 1 and No. 2 and the quote contained in the brief of counsel for defendant from the last cited case in which the Court stated:

'The driver with the right-of-way is ordinarily entitled to proceed toward and into an intersection upon the assumption that inferior traffic will respect his superior right to proceed, unless he could reasonably realize in time to avoid an accident that the inferior traffic will continue into the intersection. Koob v. Cooperative Cab Co., 1948, 213 La. 903, 35 So.2d 849; Steele, for Use and Benefit of Steele v. State Farm Mutual Ins. Co., 1958, 235 La. 564, 105 So.2d 222; Stevens v. Delanoix, La.App.1957, 96 So.2d 844; Guillory v. Frank, La.App.1957, 95 So.2d 197; Commercial Credit Corp. v. Serpas, La.App.1957, 94 So.2d 83; Janice v. Whitley, La.App.1959, 111 So.2d 852; Brown v. Checker Cab Co., La.App.1960, 119 So.2d 513; Starnes v. Mury, La.App.1956, 90 So.2d 901; Miller v. Abshire, La.App.1953, 68 So.2d 143; Droddy v. Southern Bus Lines, La.App.1946, 26 So.2d 761. In this case it appears to us that since the Thomas truck was on the right-of-way street, the driver of that vehicle had the right to assume that the decedent or any other motorist approaching from the inferior street would obey the law and would respect his superior right to proceed. The truck was being driven at a reasonable rate of speed, and there is nothing in the evidence to indicate that Thomas should have realized in time to avoid the accident that the decedent would continue into the intersection.

'The law is also settled to the effect that when confronted with a stop sign erected by the proper officials of the city, in addition to being legally obligated to bring his vehicle to a complete stop, a motorist is held to the duty of appraising traffic in the intersecting street and of making certain that the way is clear for him to make a safe passage across the intersection. When a motorist stops his vehicle before entering a right-of-way street he has performed only half of the duty which the law has imposed upon him. To stop and then proceed forward in the immediate path of oncoming vehicles constitutes gross negligence. Smith v. Travelers' Ins. Co., La.App.1946, 28 So.2d 147; Hooper v. Toye Brothers Yellow Cab Co., La.App.1951, 50 So.2d 829; Volz v. Fertel, La.App.1957, 95 So.2d 383; Ehtor v. Parish, La.App.1956, 86 So.2d 543; Brown v. Checker Cab Co., supra; Hardware Dealers Mutual Fire Ins. Co. v. Meyers, La.App.1960, 119 So.2d 572. In this case it is apparent that the decedent, whether he did...