Brown v. Liberty Mut. Ins. Co.

• Decision Date: 17 March 1958
• Docket Number: No. 43792,43792
• Parties: Edgar L. BROWN v. LIBERTY MUTUAL INSURANCE COMPANY et al.
• Court: Louisiana Supreme Court

Page 696

101 So.2d 696

234 La. 860

Edgar L. BROWN v. LIBERTY MUTUAL INSURANCE COMPANY et al.

No. 43792.

Supreme Court of Louisiana.

March 17, 1958.

Rehearing Denied April 21, 1958.

Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendants-appellees-relators.

Elmo E. Lear, William C. Bardley, Baton Rouge, for plaintiff-appellee.

McCALEB, Justice.

This is an action for the recovery of damages resulting from an automobile accident allegedly atrributable to the negligence of Ben C. Devall, in running over the leg of plaintiff's 18 month old child upon leaving the driveway of plaintiff's premises. Joined as a defendant with Devall is his liability insurance carrier, Liberty Mutual Insurance Company.

The trial judge found for defendants, resolving in his written opinion that Devall was free from fault. However, on review by the Court of Appeal, First Circuit, the judgment was reversed and plaintiff awarded recovery against the defendants, in solido, in the sum of $3,000 for the injuries sustained by the child as well as $962.92, in reimbursement of expenses incurred by him for the child's medication and treatment. See 96 So.2d 922.

At the instance of defendants, we granted certiorari and the case has been submitted for our decision.

The material facts are not seriously disputed and we find them to be as follows: The accident occurred on the afternoon of May 18, 1955, upon the private driveway of plaintiff's premises located in West Baton Rouge Parish. Shortly prior thereto, Devall had driven past the Brown residence and, upon observing Mr. and Mrs. Brown, their three children, aged four years, three years and 18 months, and a Mr. Abbott, a friend of the family, in the front yard, brought his car to a stop immediately past the driveway and then backed into it for the purpose of discussing business with Mr. Brown. After backing a distance of some 40 feet, or approximately half-way between the public road and the house, Devall stopped and Brown came over to the right side of the car, where they engaged in conversation. Mrs. Brown followed her husband but remained slightly to his left, or toward the rear of the car. Mr. Abbott was a few feet behind Mr. and Mrs. Brown, listening to the conversation and also playing ball with the children, with his back to the car. The conversation between Brown and Devall lasted approximately 10 minutes and, just before it was concluded, Devall started his motor letting it idle while still engaged in conversation with Brown. About one minute thereafter, Devall started slowly forward and had proceeded no more than three feet when Mr. and Mrs. Brown shouted for him to stop, which he did immediately but too late, as the right front wheel of the automobile had already rolled on the baby who, unnoticed by anyone present, had waddled away from the safety of the lawn to a place directly under the front of the car where he could not be seen by Devall.

In concluding that Devall was not negligent, the district judge stressed the fact that, since there were three adults present who were in a much better position to observe the actions of the children, he was entitled to assume that it was safe to proceed, as he received no warning...