Burvant v. Wolfe

• Court: Louisiana Supreme Court
• Writing for the Court: PROVOSTY, J.
• Citation: Burvant v. Wolfe, 126 La. 787, 52 So. 1025 (La. 1910)
• Decision Date: 06 June 1910
• Docket Number: 18,078
• Parties: BURVANT et ux. v. WOLFE

52 So. 1025

126 La. 787

BURVANT et ux. v. WOLFE

No. 18,078

Supreme Court of Louisiana

June 6, 1910

Rehearing Denied June 28, 1910.

Appeal from Civil District Court, Parish of Orleans; Walter B Sommerville, Judge.

Action by George J. Burvant and wife against J. Townsend Wolfe. Judgment for plaintiffs. Defendant appeals. Judgment increased and affirmed.

Woodville & Woodville, for appellant.

Armand Romain, for appellees.

OPINION

PROVOSTY J.

The little 11 year old son of the plaintiffs was struck down by the automobile of the defendant, and died the next day. The street upon which defendant was driving his automobile was asphalted. It had no gutters and its surface was less than a foot lower than the sidewalk. As defendant entered the block, there was at the lower end of it a large crowd gathered around a police patrol wagon which had made an arrest, and more people were hastening towards this center of excitement. Defendant slackened speed to six or seven miles an hour; and, as the crowd was densest on the right-hand, or downtown, side of the street, where the patrol wagon stood, he steered towards the left, or uptown, side, hoping to be able to pass -- tooting his horn, so as to give warning to the crowd to open a passage for him. The accident occurred half way down the block, and two to four feet from the left-hand, or uptown, side curbing. The boy had run down with other boys from some distance up the street towards the scene of the excitement, and seems to have lagged behind, for we gather that at the moment of the accident he was alone in the middle part of the block, except that there were persons seated on their doorsteps, or standing at their gates.

One witness, a colored woman, says that the boy was standing in the street when the automobile came from behind and struck him. Another witness, Mrs. Duker, says the boy was walking, not running; that he stepped from the sidewalk to the street, going in the direction of the patrol wagon; that he made two steps in the street and, as he was making the third, the automobile struck him. Another witness, Valcour, says that five little boys were running on the banquette towards the excitement; that, when they got in the middle of the block, "they jumped into the middle of the street, and the automobile came along and struck one and knocked him down; that he left the banquette 10 or 15 feet ahead of the automobile." A witness for defendant, Mrs. Oddo, says that the boy came running on the sidewalk, "looking at the patrol wagon; he stepped right in front of the automobile." Another witness for defendant, Police Officer Kiernan, says that "the boy ran right out, jumped out, into the street, and the automobile struck him; it was the wheel that struck him." Another witness for defendant, Police Officer Duffy, says that "this little boy, he must have come from the banquette, and was going to cross the street, and I think the lamp of the automobile struck him." Another witness for defendant, Galy, says "this little boy was standing on this side of Johnson street; the doctor was on the lower side, and he ran across the street, looking towards the patrol wagon, and not bothering about the automobile or anything else, and when he found himself in front of the automobile it looked like he fell back a little and the doctor ran this way, and he ran into the machine." Another witness for defendant, Mrs. Blanchard, one of the occupants of the automobile, says:

"The child was on the sidewalk, and he just crossed over right in front of the automobile, when it struck him."

Defendant himself says he was blowing his horn "in order to get an opening sufficient to go through this immense crowd that was there at the corner, and didn't see the boy until he was struck."

From this evidence we conclude that the child was at first going straight down the banquette on the uptown side, and that when he got about the middle of the block, he slanted to the right, in the direction of the patrol wagon, which was at the downtown corner, so that his course and that of the automobile tended to converge. We find nothing to show that his course was squarely across the street. Therefore, had the defendant been duly observant, as any one using a death-dealing machine upon a public street is bound to be, he would have noticed that the course of the boy was convergent with his own, and that the boy was not paying attention. True, if the boy was running, there may have been very little time for stopping or shunting the machine; but the defendant should have been observant and allowed the child this chance for the saving of his life. Crisman v. Shreveport Belt R. R. Co., 110 La. 640, 34 So. 718, 62 L. R. A. 747. Defendant's whole attention evidently was centered upon getting an opening...