Dobrowolski v. Henderson

• Decision Date: 08 October 1930
• Docket Number: 667
• Court: Court of Appeal of Louisiana — District of US
• Parties: DOBROWOLSKI v. HENDERSON

130 So. 237

15 La.App. 79

DOBROWOLSKI v. HENDERSON

No. 667

Court of Appeals of Louisiana, First Circuit

October 8, 1930

Rehearing Refused December 1, 1930.

Appeal from the Nineteenth Judicial District Court, Parish of East Baton Rouge. Hon. George K. Favrot, Judge.

Action by Mrs. Amanda Dobrowolski against Joseph T. Henderson.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

C. A Battle, of Baton Rouge, attorney for plaintiff, appellant.

D. J Sanchez, of Baton Rouge, attorney for defendant, appellee.

LeBLANC J. ELLIOTT, J. dissenting.

OPINION

LeBLANC, J.

This is a damage suit in which the plaintiff, an elderly lady, 70 years old, seeks to recover for personal injuries sustained by her when she was struck by the defendant's automobile which he was driving through the business section on North Boulevard, in the city of Baton Rouge. The accident happened on the morning of May 13, 1929.

She alleges that she was standing out one or two feet from the sidewalk on the south side of North Boulevard street, when an automobile belonging to and being driven by the defendant, Joseph T. Henderson, with some tent poles fastened to the rear end and sticking out two or three feet beyond the sides, came by so close to where she was standing that the end of the poles struck her as the car passed, and knocked her down, injuring her to the extent that she will be a cripple for life. She alleges that the said poles carried no flag or sign to call attention to them, and were not otherwise noticeable to any one by whom said car might be passing. She charges the defendant with negligence in driving his car carelessly and recklessly near the sidewalk where she was standing, knowing that the said poles were so attached to his car as to create a situation of danger. She claims of the defendant damages in the sum of $ 586.26 for expenses and the additional sum of $ 500 for pain and suffering and for her injuries, making a total of $ 1,086.26.

The defendant denies all charges of negligence and pleads contributory negligence on the part of the plaintiff in the following particulars: That she was attempting to cross the street at a point 25 to 30 feet from the intersection; that she suddenly appeared on the street from between two automobiles which were parked alongside of the curb into the path of the automobile traffic on the street; and that she was not observing the proper lookout for approaching cars.

The district judge found in favor of the defendant and dismissed the plaintiff's suit. From his judgment, she has appealed.

North Boulevard street is one of the busy streets of the city of Baton Rouge. At the vicinity where this accident occurred, the intersecting streets do not run all the way across, but run into North Boulevard at intervening corners, one on the south side and the next on the north. Mrs. Dobrowolski had been to Brown's store, which is situated in the center of the block on the south side of North Boulevard, at a distance of approximately 35 or 40 feet from the point where North Twelfth street intersects it on the north side. The defendant was driving his automobile on North Boulevard, going in the direction from west to east.

The evidence discloses that the defendant is a member of the religious sect known as the Church of the Nazarene. He, with two ministers of his faith, were on their way to a place called Istrouma, where they were to conduct a religious meeting. They carried a large tent to be used for that purpose, with them. The tent proper, that is, the canvas top and walls, were loaded in the car; part also being laid over and across the hood or front part of the automobile. The poles were tied in two bundles of about 12 poles to each bundle and they were securely fastened to the rear end of the car. These poles were 88 inches long and were arranged so as to make the projection on either side of the car as equal as possible. The car measured 66 inches in width, so we judge that they projected about 11 inches on each side.

We find a provision in the law regulating the operation of motor vehicles on the public highways to the effect that no passenger vehicle can carry any load extending beyond the line of the fender on the left side, nor more than six inches beyond the line of the fender on the right side. This provision is to be found in subsection (e) of section 38 of Act No. 296 of 1928. It would appear therefore that there was a violation of that section of the statute by the defendant, which the plaintiff, however, did not plead. Giving due consideration to its provisions, nevertheless, the only result of defendant's violation, as far as this case is concerned, was to create a presumption of negligence on his part, which, like all other presumptions in law, was subject to rebuttal by competent and proper proof. If it can be shown, by satisfactory and convincing proof, that the protruding object was not the cause of the accident, as was done in this case, the one charged with negligence in that particular should be discharged.

Plaintiff is the only witness who swears that she was struck by the poles attached to the defendant's car. As a matter of fact, from her own testimony on this point, we might infer that she is not so sure herself what it was that struck her. A witness by the name of Joseph H. Bowden, a minister of the Methodist Episcopal Church, South, testifies in her behalf, but admits that he did not see the actual blow which struck her. His conclusion that she was hit by the projecting poles is drawn from mere conjecturing on his part.

As against the character of proof offered by the plaintiff, we find the positive testimony of the defendant and of Rev. Le June and Rev. Watson, the two preachers who occupied the front seat of his car with him, that she was struck by the right front fender of the automobile as she emerged from between two cars parked along the sidewalk curb, and found herself suddenly in front of them. The physical facts would also seem to favor the defendant's and his witnesses' contention that she was struck by the front fender. According to the testimony of Rev. Bowden, she is a lady approximately five feet, six inches tall, and from our observation of the height of the front fender of a Chevrolet automobile of the model such as the defendant was driving, from the ground, she would have been struck just about at the hip, the very part that was injured. If the poles were fastened across the rear bumper of the car, as the evidence indicates they were, it seems as though she would have been struck lower than her hip. Mr. Bowden testifies that the poles were tied over and across the back fenders. Considering the curved formation of these fenders, it is difficult to understand how they could have been securely fastened over them, but granting they were, it would then appear that they were a bit high to have struck her on the hip.

After considering all the evidence and surrounding circumstances on this point, we find that not only has the plaintiff failed to carry the burden of proof which the law imposed on her, but that the weight of the testimony seems to be with the defendant.

It is equally as certain to us that she has not shown the defendant guilty of any reckless or careless driving.

The attempt made to show that, because the tents were piled on the hood of the automobile, the driver was not in a position to see ahead of him, is met by the testimony of the defendant and that of the two ministers with him, who say that their vision was not a bit obscured for the reason that the bundle did not extend more than six inches above the surface of the hood itself.

According to their testimony, also, defendant was driving about ten feet from the curb on the south side of the street, which we believe made all necessary allowances for the cars that were parked along the curb on that side.

With regard to the rate of speed at which the defendant was going, the only direct testimony comes from him and his two witnesses, and the maximum stated by any is 15 miles per hour. Rev. Bowden surmises a far greater speed which he judges from the distance it took the defendant to bring his car to a full stop after he had struck the plaintiff. There is a difference of 50 per cent or more between his estimate of what that distance was and what the defendant and his witnesses say it was, so there is certainly nothing certain to guide us in that respect. Moreover, we find no good reason why we should accept his evidence on the question of the speed of the car, which, after all, is merely conjecture on his part, as against the positive proof of the other three witnesses.

A rate of speed of 15 miles per hour, even in congested traffic, will not be considered careless and reckless driving. At such speed, an automobile can be kept under control and handled to meet almost any reasonable emergency.

These are some of the considerations which strengthen our impression that the unfortunate victim of this accident is the one who created the perilous situation in which she found herself and was injured. She almost admitted as much after it happened. Not only did she suddenly appear on the street, directly in front of defendant's car, from between two automobiles parked along the curb, but the evidence also shows that in leaving she attempted to cross the street immediately in front of Brown's store, a distance of approximately 35 or 40 feet from the street intersection. And this, too, at a time in the morning when the traffic on the street was already heavy.

In so doing, she doubtless contributed by her own negligence to the accident and her injuries which resulted therefrom. For this of course, she would be denied recovery even though it had been shown that...