Brown v. Wade
| Decision Date | 06 February 1933 |
| Docket Number | 4397 |
| Citation | 145 So. 790 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BROWN v. WADE |
Rehearing denied March 10, 1933.
Hugh M Wilkinson and Fred W. Oser, both of New Orleans, for appellant.
A. V Hundley, of Alexandria, for appellee.
This is an action in damages by the mother of a little girl, three years and ten months of age, who was struck and injured by an automobile operated by defendant, on the highway near the Poland High School, in Rapides parish, on March 7, 1930, from which injuries, superinducing pneumonia, she died one week later.
Plaintiff alleges that the accident, resulting in the injury to and death of her child, was due solely to the gross negligence and carelessness of defendant in the operation of his automobile at an excessive rate of speed on the highway, and for that reason being unable to stop the car in time to avert the accident after observing the child's purpose to cross said highway ahead of him.
Defendant denies negligence of any kind on his part; and, in the alternative, pleads contributory negligence on the part of plaintiff in permitting her young child to go unattended upon a through highway, where automobile traffic was frequent and rapid.
From a judgment against him for $ 2,500, defendant has appealed.
At the time of the accident, plaintiff was living in the city of Alexandria. She and her husband had separated. She had left her little girl in the keeping and charge of her brother, a negro tenant on the farm of Mr. A. T. Ryland, where the accident occurred. The house occupied by this brother is on the east side and fronts the graveled highway from Alexandria to Marksville. The child had left this house, unattended, and had passed through a wagon gate, crossed a bridge that spans the highway ditch, and was crossing the highway diagonally in its desire to join some children at the home of another tenant, north of and on the opposite side of the road from the place from which it had come. When near the middle of the road, defendant's car either ran into the child or side-swiped it in passing, or the child ran into the right side of the car. The evidence does not make it clear in which way the contact was made.
Defendant had been to Marksville and was returning to his home in Alexandria. When passing the Poland High School, about three-fourths of a mile south of the site of the accident, he was hailed by a young man by the name of James Goodwin, who wished a ride to Alexandria. Defendant consented and Goodwin was in the car when the accident happened. North and south of the site of the accident, for several hundred yards, the road is straight and the view unobstructed. From the wagon gate to the gravel of the highway is thirteen feet, and this location is unobstructed to the view of one approaching from the south. The graveled portion of the highway is at least twenty feet wide.
There is considerable evidence in the record touching the rate of speed at which defendant's car, a Buick sedan, was moving immediately preceding the accident. The accident occurred one hundred yards north of Mr. Ryland's store and filling station. He testified that defendant passed him one hundred yards south of his place of business, traveling at a very rapid rate of speed; that he (Ryland) was driving at the rate of thirty-five miles per hour, and while he covered one hundred yards, or about, to his store, defendant had covered this distance, plus the additional one hundred yards or more, to the point of accident. Other witnesses corroborate Mr. Ryland's testimony about defendant's rate of speed. The attention of two witnesses, over five hundred feet distant, was attracted to the Buick car, on account of the loud, roaring noise it was making. The Goodwin boy thought defendant was making between thirty-five and forty miles per hour when the child ran into the road. He was certain the speed was not over forty-five miles per hour. Defendant was positive he was not traveling sixty miles per hour at any time, but that his rate was from thirty to thirty-five miles, as he proceeded northward.
It is not necessary to definitely determine the rate defendant's car was traveling. We think, however, he was going at a rapid rate. We do not think his liability turns upon the velocity of his car, primarily. Liability was incurred by his action, or non-action, after observing the movements of the child on the bridge and road. Defendant admits he saw the child first when it was on the bridge, running towards the road, and he says he was then seventy-five feet from her. He then lightly applied his foot to the brakes and pulled the car a little to his left, towards the center of the road; that the child turned to its right and continued running up the right side of the road a short distance, and he then released the brakes and continued to travel at about thirty miles per hour until he saw that the girl had turned diagonally across the road in the path of his travel, still running; that he then cut his car obliquely to his left and applied the brakes forcefully. He is positive the front of the car cleared the child and that it ran into the car towards its rear end. The car was then pulled to its right to avoid going into the ditch, and finally stopped, nearly all of the witnesses agree, about ninety yards up the road. The child's body was picked up about the center of the road.
Defendant does not know if he sounded the car's horn, after seeing the child, or not. His testimony leaves the impression that he did not do so-at least, that he did not think he did so. One witness said the horn sounded once. Others said the horn was not sounded at all.
Defendant admits that he could have stopped his car, or brought it under control, within the distance he was from the child when he saw it running across the bridge. He chose to continue up the road, gaining on the child, as it ran, assuming that it would continue its course until he had passed it. He was on the right side of the road and so was the child. The legal questions presented by this state of facts are: Did defendant's action amount to negligence? Could he have, by the exercise of reasonable care, averted the accident? The evidence, we think, clearly answers these questions in the affirmative.
When the operator of an automobile discovers the presence of small children on the roadside, ahead of him, it is his duty to travel at such a rate of speed, and bring his vehicle under such control, that an accident will be averted, regardless of the unexpected and unforeseen movement of any of the children. He has not the right to assume that a child, especially one of tender years, will exercise discretion needed to protect it from the dangers of rapid automobile traffic.
We are not now dealing with a case, as often happens, where a child suddenly emerges from hiding, or from behind an obstruction to vision, and precipitates itself in front of a moving vehicle, thereby creating a sudden emergency. We are dealing with a case wherein the defendant admits that, after seeing a small child, less than four years old, running towards the road and then turning up the road, still running in the direction the car is going, he took little or no precaution to avoid what could or would happen should that child, in the exercise of its childish indiscretion, seek to resume its original course by attempting to cross the road. Under these conditions, it is immaterial whether the car was running sixty miles per hour or thirty miles per hour. The accident happened and defendant contends his speed was not over thirty miles per hour. Regardless of the rate of speed, he was unable to avert an accident which he knew, or should have known, would happen if the child he saw in front of him should suddenly change its line of travel to the left. The action of the child should have indicated to the defendant that its intention, when it ran to the highway and turned up, was to cross over to the tenant house a short distance away-its subsequent action proved this intention. He should have brought his knowledge of the nature and disposition of children of this age to bear, and governed himself accordingly. Defendant had ample opportunity, even from his own appreciation of the situation, to have so manipulated his car as to make it impossible to collide with plaintiff's child.
Berry on Automobiles (6th Ed.) p. 435, under the title Injuries to Children, lays down the general principle applicable, we think, to a case of this character, viz.: "Children wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them, must calculate upon this and take precaution accordingly. Huddy's Cyclopedia of Automobile Law (9th Ed.) vol. 5-6, §41, sets forth the rule to be as follows: ...
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