Bodin v. Texas Co.
| Decision Date | 15 February 1939 |
| Docket Number | 1921 |
| Citation | 186 So. 390 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BODIN et ux. v. TEXAS CO. et al. |
Appeal from District Court, Parish of Iberia; Walter T. Gilmore Judge.
Action by Carlos Bodin and wife against the Texas Company and others to recover for the death of plaintiff's seven-year-old son who was run over by the named defendant's truck, and for expenses incurred by the father on account of the injury and death. Judgment for plaintiffs for $13,500 for the death of the child and for the father for $629.08 for expenses, and defendants appeal.
Amended by reducing the award for death of the child to $7,000 and affirmed.
A 7 year old child cannot be guilty of contributory negligence.
Walter J. Burke and James Simon, both of New Iberia, for appellants.
James L. Helm, of New Iberia, for appellees.
The seven year old son of plaintiffs was run over by a truck belonging to The Texas Company in the City of New Iberia on October 1, 1937, and as a result of the injury received by the child in the accident, it died nineteen days later. The parents bring this suit against the owner of the truck and its insurance carrier, the Maryland Casualty Company, for damages in the sum of $17,000, and the father brings a suit against the two defendants for the sum of $629.08 for expenses incurred by him on account of the injury and death of the child.
The trial court rendered judgment in favor of the parents for the death of the child in the sum of $13,500, and in favor of the father for the amount claimed by him on account of the expenses incurred. The defendants have appealed.
The unfortunate accident happened on Bridge Street, some 87 feet from its intersection with Main Street, in the City of New Iberia. While Bridge Street does not run exactly north and south, yet for the purpose of discussing the case, we will use these directions for convenience. Main Street runs east and west and is the principal thoroughfare of the City. There is a stop light at the intersection of the two streets. At the time of the accident, the truck was being driven by Emile Vuillemot, an employee of The Texas Company, and acting within the scope of his employment. Bridge Street is 29 1/2 feet wide from curb to curb, and appears to be a street with considerable traffic.
On the west side of Bridge Street there is a store building extending from the side walk at the intersection north along bridge street for more than a hundred feet. Between the curb and the side walk-that is on the neutral ground-there is a telephone post 33 feet north of the intersection, and a distance of 59 feet from the intersection there is an entrance from the street to the store building. The boy started across Bridge Street from this entrance and traveled in a northeasterly direction, that is diagonally across the street at an angle of about 45 degrees. The boy ran into or was struck by the truck at a point which the preponderance of the evidence shows to be about 87 feet from the intersection and some 10 or 12 feet from the east curb. The child struck the truck on its left side, back of the cab, and the rear wheels of the truck ran over and mangled the legs of the boy producing the injury from which he died.
The driver of the truck, coming east on Main Street, made a left turn into Bridge Street and was traveling north on Bridge Street on his right hand side, some four or five feet from the east curb-one of the witnesses places the truck as close as 1 1/2 to 2 feet of the east curb, while the driver himself says that he was traveling from 5 to 7 feet of the east curb. But taking into consideration all the other evidence on this point, we do not think that we are far wrong in saying that the truck was traveling four or five feet from the east curb. As to the speed of the truck, it is estimated as low as 7 or 8 miles per hour to as high as 12 to 15 miles per hour. We feel safe in fixing the speed of the truck at about 10 miles per hour, which, of course, is not an unreasonable speed.
The principal acts of negligence charged against the truck driver are as follows: That he cut the corner at the stop light in making the left turn; that he failed to give any signal in making the left turn into Bridge Street, and exceeded the speed limit while making the turn; that he failed to keep a proper lookout and observe the way ahead, and failed to stop the truck in time to avoid the accident, which he could have done had he been attentive to his duties and observant of the situation with which he was confronted.
All of the allegations of negligence are denied by the defendants and they aver that the cause of the accident was the sudden and unexpected act of the child in running out from behind parked or stopped cars into the side of the truck, and that the truck driver was not able to see and did not see the child in time to stop the truck and avoid the accident.
Defendants filed a plea of contributory negligence on the part of the deceased boy, but this plea has been abandoned, as counsel recognize that, under the jurisprudence of this state, a seven year old child is not capable, from a legal standpoint, of being charged with contributory negligence. The question is therefore narrowed down to the one of whether or not the truck driver was guilty of any act of negligence that contributed to the injury of the child; whether or not the truck driver had the last clear chance to avoid the accident, or whether or not the accident was an unavoidable one.
While the truck driver admits that he cut the corner in making the left turn into Bridge Street, which seems to be a violation of an ordinance of the City, yet we doubt if this act on his part can be said to be a proximate cause of the accident that followed after he had made the turn and had gotten completely over on his side of the street. In fact it appears to us that whatever acts of negligence the truck driver might have been guilty of while making the left turn, were too remote to be classed as a proximate cause of the accident. Of course, it is reasonable to assume that, if the truck driver had not made the turn shorter by cutting the corner, he would have had a greater distance to go to the point of the accident and more than likely the child would have passed before he reached the point. However, to carry this supposition to its reasonable conclusion, it would not be very difficult to find some antecedent act, remote in time and in space, that could be designated as a proximate cause of an accident by indulging the assumption that the accident would not have happened had the person not committed the antecedent act. The negligence charged to the person sought to be held liable must be the proximate cause, and not the remote or indirect cause, of the accident.
In determining whether or not the truck driver was guilty of any act of negligence that contributed to the injury and death of the child, we think his acts must be judged from the time that he made the left turn into Bridge Street until the child was struck. As stated before, he was traveling on his right side of that street from the time he made the turn until the accident occurred, and he was traveling at a reasonable rate of speed. Therefore, his acts of negligence, if any, consisted in his failure to keep a proper lookout and in his failure to stop the truck in time to avoid the accident, regardless of the negligent acts of the child.
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