Borman v. Lafargue

• Decision Date: 05 October 1938
• Docket Number: 1879
• Citation: 183 So. 548
• Court: Court of Appeal of Louisiana — District of US
• Parties: BORMAN v. LAFARGUE et al

183 So. 548

BORMAN v. LAFARGUE et al

No. 1879

Court of Appeal of Louisiana, First Circuit.

October 5, 1938

Cline Thompson, Lawes & Cavanaugh, of Lake Charles, for appellants.

Chas C. Jaubert, of Lake Charles, for appellee.

OPINION

OTT Judge.

On August 24, 1937, about 6:30 P. M., on the Old Spanish Trail Highway, U.S. 90, some four miles west of Lake Charles, Mary Sarah Roach, a child about seven years of age, was struck by an automobile driven by the defendant, Lafargue, while on a mission for his employer, W. Horace Williams Company, Inc. The little girl was severely injured, suffering a fracture of the femur bones of both legs, a fracture of the humerus of the right arm, a hemorrhage of the lung, laceration of the scalp, and minor abrasions and bruises about the body.

The suit is by the mother in her individual capacity for damages on account of medical expenses, for nursing the child, and for mental anguish and worry occasioned her by reason of the injury, and for damages suffered by the child on account of pain and suffering, permanent deformity and disfigurement, and loss of earning capacity suffered by the child, the total amount claimed being the sum of $ 30,500, of which amount $ 5,500 is claimed by the mother in her individual capacity, and $ 25,000 for the child.

Judgment was rendered for the plaintiff in her individual capacity for the sum of $ 1,506, and as tutrix for the minor in the sum of $ 5,500. Defendants have appealed, and the plaintiff has answered the appeal and has asked that the judgment be amended by awarding the child $ 10,000.

The child and her mother were picked up by a Mr. Miller who was driving a car west on the above named highway. The mother and child lived on a gravel road leading into this main highway from the south some four miles west of Lake Charles, and the child and her mother were on their way home from Lake Charles when picked up by Mr. Miller. A grown son of the plaintiff was also picked up by Mr. Miller. The mother and the child sat on the front seat with Mr. Miller, and the son sat on the back seat of the car. When he reached a point opposite the intersecting gravel road from the south, Miller stopped his car on the right hand side of the highway, almost, if not completely, off the pavement for the purpose of permitting these passengers to alight and continue their journey home down this gravel road. The gravel road does not continue north across the highway but merely intersects it from the south, and Miller stopped his car practically in the mouth of this intersection gravel road.

After the car stopped, the son got out of the back seat, opened the front door for his mother and sister to get out, and the child pulled loose from her mother's hand, stepped down on the ground on the north side of the car, hesitated a moment, and then started around the rear end of the parked car, evidently for the purpose of getting across the main highway to the gravel road leading to her home. She was struck by the car driven by Lafargue traveling in an easterly direction almost on the south edge of the pavement and several feet east of the intersecting side road.

Plaintiff charges that Lafargue was driving at an excessive rate of speed, was not keeping a proper lookout and did not have his car under proper control; that said Lafargue was not sufficiently careful in passing this parked car on the north side of the highway with a child alighting from it, and was not observant of the dangers in passing this side road, warning of which was posted some distance to the west. Defendants denied that Lafargue was guilty of any negligence, and aver that at the time of the accident Lafargue was driving east on said highway, and at the point where the gravel road intersects the highway, there was parked on the north side an automobile headed in a westerly direction; that another car was also approaching the intersection from the east and pulled slightly to its left in order to pass the parked car; that Lafargue decreased his speed to about thirty miles per hour and pulled his car well over to the right of the highway; that about the time the car driven by Lafargue and the car coming from the east in the opposite direction came abreast of the parked car on the north side of the highway, suddenly and without warning, the child dashed from behind the parked car into the path of the Lafargue car; that Lafargue applied his brakes, blew his horn, and pulled his car sharply to the right, almost off the pavement, but that the child continued across the highway in a southeasterly direction and ran into the left fender of the car; that the view of the child was screened from Lafargue by the parked car and by the car approaching from the east, and it was impossible to see the child until she darted out from behind these two cars.

In the alternative, defendants pleaded contributory negligence on the part of the child in attempting to cross the highway without first ascertaining that the crossing could be made in safety, and in dashing from her concealed position behind the car from which she had alighted onto the traveled portion of the road, and by so doing creating an emergency which resulted in her injuries. Further pleading in the alternative, defendants allege that the mother was guilty of contributory negligence barring her individual right of recovery in permitting the child to alight from the parked car without taking the necessary precautions to prevent the child from running across the highway which she knew to be frequently traveled.

An important factor in the case is whether or not there was a car coming west and passing Lafargue just previous to the time the child ran out from behind the parked car from which she alighted. The trial judge reached the conclusion that there was no such car going west and passing the parked car at the time that Lafargue approached and passed this parked car from the west. A review of the evidence on this point does not justify us in saying that the trial judge was in error in his finding of fact.

It is true that Lafargue and the two men in the car with him state that there was a car passed going west just before their car reached the point where the Miller car was parked on the north side of the highway; that this car came over slightly to the left of the center line in passing the parked car, necessitating Lafargue pulling his car over to the extreme right of the pavement, and that the child emerged suddenly from behind this parked car and the passing car, and when they first saw the child she was two or three feet over the black line going across the highway to the south; that she was then about 25 feet from them, and she continued to run across the highway in front of them; that Lafargue pulled his car further to the right, almost off the pavement, and struck the child near the south edge of the pavement, some thirty or forty feet east of the intersecting side road.

The owner of the parked car, Miller, was not asked if there was a car that passed him going west just before the child was struck, and he made no mention of such a car. His testimony was taken by deposition and was introduced by the defendants. Miller saw the approaching Lafargue car some fifty feet...