Bush v. Williams
| Decision Date | 29 June 1954 |
| Docket Number | No. 3858,3858 |
| Citation | 74 So.2d 335 |
| Parties | BUSH et ux. v. WILLIAMS et al. |
| Court | Court of Appeal of Louisiana — District of US |
Percy Macmurdo & Avant, Baton Rouge, for appellant.
Pitcher & Pitcher, Baton Rouge, for appellee.
At about 11:00 A.M. on August 31, 1953, plaintiff, Mrs. H. R. Bush, was walking down her paved driveway toward the street when she was struck from behind by a taxicab which was being backed out of the driveway toward the street. Mrs. Bush charges the driver of the cab with being guilty of gross negligence in failing to keep a proper lookout while backing the cab out of a private driveway and failing to see or, if he saw in failing to heed, Mrs. Bush while she was walking slowly down her driveway, and in failing to sound his horn. Mr. Bush claimed as damages medical expenses incurred by his wife as a result of the accident and $60 which he paid his daughter for doing the housework for a period of three weeks.
Defendant by way of answer generally denied the allegations of plaintiff's petition and in the alternative plead contributory negligence 'in that the said Mrs. H. R. Bush was not keeping the proper lookout and could have easily seen or heard the can backing out of the driveway and taken other steps to protect herself,' and further that Mrs. Bush negligently fell into the side of the cab.
There was judgment in the District Court in favor of Mrs. Bush in the amount of $1,500 for all injuries, pain and suffering which she sustained. Judgment was also rendered in favor of the plaintiff husband in the amount of $91 medical bill and $60 services while his wife was disabled, aggregating $151.
The defendant has appealed from this judgment and we fail to find either an appeal or answer to the appeal by the plaintiff, although counsel for plaintiff in his brief asks that the amount be increased.
There is very little disagreement as to the facts in this case. It is shown that the plaintiff husband owned the residence in which they kept a small apartment in the rear thereof, and rented the other part. On the day of the accident, Mrs. Bush and her friend, Mrs. Day, were in the kitchen of the apartment making coffee when the taxicab drove in the driveway with a Mrs. Parker who had purchased some groceries and who evidently lived in an apartment in the same building. The taxicab stopped and the driver took the groceries in to Mrs. Parker's apartment. When the taxicab drove in Mrs. Bush's dog evidently was barking and also at the the same time a Mrs. Aull drove up to Mrs. Day's home which was next to the Bush residence and separated by a fence. Mrs. Bush then went out to quiet the dog and to call Mrs. Aull to come to her apartment for coffee. In doing this she walked down her driveway toward the street. She testified the motor on the cab was running when she came out, while the driver testified it was not running. Be this as it may, the driver testified he was warned not to back into the flowers on the side of the driveway, that he looked, got in the cab, held the left door open and proceeded to back down the driveway without any other observation. He heard a grunt and thought he had struck a dog but it turned out to be Mrs. Bush who had been knocked down.
The driver of the cab stated positively that he never looked in his rear view mirror not blew his horn. In fact, from his testimony, if he looked to the rear it was hurriedly done and beyond understanding as to why he did not clearly see Mrs. Bush walking down the driveway.
Mrs. Bush testified that after she came around the taxicab she walked down the middle of the driveway and when she had gotten approximately half way, which was approximately 18 feet, that she was struck in the rear by the back bumper of the taxicab and knocked on her face. She did not hear the motor of the cab start, in fact, she did not know the taxicab was backing out until after she was struck.
The driver of the taxi gave some testimony to the effect that she must have been coming out of the bushes to the north, however, she never had called Mrs. Aull, and she would not have been returning with her mission incomplete. We believe that she was struck as she said she was and that the sole proximate cause of this accident was the failure of the taxi driver to exercise the degree of caution required of a driver backing his motor vehicle. There was no reason shown by this record as to why the taxi driver could not and should not have seen Mrs. Bush in this open driveway, and his failure to do so was negligent. The Judge of the District Court in holding the driver guilty of negligence cited Babbitt Motor Vehicle Law, Fourth Edition, at page 1141, Par. 1624, in which it is stated:
Also, see Wright v. State Farm Mutual Auto Ins. Co., La.App., 57 So.2d 767; Levy v. White, La.App., 57 So.2d 28; Honeycutt v. Carver, La.App., 25 So.2d 99; Strehle v. Giaise, La.App., 46 So.2d 685. These cases deal with the question of backing automobiles, and state that an automobile operator driving from a private driveway onto a thoroughfare must be extremely careful but that where the automobile is being backed out the operator must be even more careful.
On the question of contributory negligence the trial judge has correctly disposed of this plea as well as the nature and extent of the plaintiff's injuries and the amount to be awarded Mr. and Mrs. Bush, and we therefore quote from his written opinion:
'We come now to a consideration of defendants' alternative plea of contributory negligence on the part of plaintiff. Contributory negligence, such as will defeat a recovery in an action like the present, is the negligent act of the plaintiff, which concurring and co-operating with the negligent act of the defendants, thereby becomes the real, efficient and proximate cause of the injury, or the cause without which the injury would not have occurred. Here the negligent act with which plaintiff is charged, I assume, is that knowing the cab driver had to back out of the driveway to get to the...
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