Epperly v. Kerrigan
| Decision Date | 03 April 1973 |
| Docket Number | No. 5303,5303 |
| Citation | 275 So.2d 884 |
| Parties | David EPPERLY v. Josephine KERRIGAN et al. |
| Court | Court of Appeal of Louisiana — District of US |
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Ashton R. Hardy, New Orleans, for Josephine Kerrigan and Michigan Millers Mutual Ins. Co., defendants-appellants.
The Law Offices of Steven R. Plotkin, Owen J. Bradley, New Orleans, for plaintiff-appellant-appellee.
A. R. Christovich, Jr. and C. B. Ogden, II, A. R. Christovich, Jr., New Orleans, for New Orleans Public Service, Inc., defendant-appellee.
Before SCHOTT, BOUTALL and STOULIG, JJ.
This appeal was taken by defendants, Mrs. Josephine Kerrigan, and her liability insurer, Michigan, Millers Mutual Insurance Company, from a judgment taken against them in the amount of $20,000 in favor of the plaintiff, David Epperly. Plaintiff answered the appeal seeking an increase in the amount of the judgment and he also took an appeal from that portion of the judgment which dismissed his suit against a codefendant, New Orleans Public Service, Inc.
On March 23, 1967, the date of the accident, this 45 year old plaintiff, who is congenitally blind, had boarded a Public Service Bus at Jackson Avenue and Magazine Street and allegedly requested that the bus driver let him off at the corner of Camp and St. Joseph Streets where he had prearranged a meeting with a friend. When he got off the bus he soon realized that he was not at the right corner and he tried to find help so as to get to his destination. He then became involved with a group of people who offered to help him by leading him but instead began to taunt and tease him by misleading him into a lamp post or wall. He then entered the street where he sat down and lifted his cane as a sign for help. He was taken out of the street and led for a short distance by someone but when that person left him he again entered the street where he was struck by an automobile operated by Mrs. Kerrigan. He testified that he was 'confused and scared' during the sequence of events which led up to the accident.
The accident occurred on Magazine Street in the City of New Orleans between Thalia and Melpomene Streets. In this area Magazine is a one-way street consisting of two moving lanes of traffic and parking lanes on both sides of the street.
The police officer who investigated the accident found 31 feet of skid marks left by Mrs. Kerrigan's car which came to a stop about two feet beyond the point of impact. Mr. Epperly was laying in the left lane of traffic about nine feet from the point of impact. The speed limit where the accident occurred is 30 miles per hour, and at the time of the accident, about 7:00 PM, it was dark or near dark, there were overhead lights illuminating the area and all of the drivers who witnessed the accident testified that their lights were on.
According to Mrs. Kerrigan, she had been traveling in the left lane of traffic along Magazine Street behind a cab for several blocks. She was by her testimony about one and one-half car lengths which, by her definition, would be from 10 to 25 feet behind the cab which suddenly swerved to the right when it was just beyond the intersection of Magazine and Thalia Street. At this point, her vision of the road ahead became clear and she saw the plaintiff in front of her standing on the road or walking in her direction in the center of the left lane in which she was traveling. Her pertinent testimony as to her reaction was as follows:
'Q. Mrs. Kerrigan, when the cab moved aside and you saw Mr. Epperly your first reaction was to take your foot off the accelerator and put it on the brake, is that right?
A. Yes.
'Q. So we understand each other, you did not apply the full force of your brake immediately, true?
A. I put my foot on it.
Q. No ma'am. Explain to me carefully, just explain again, when the cab swerved the first reaction you had was to take your foot from the accelerator and place it on the brake but not depressing the brake first, true?
A. Yes--
'A. I put my foot on the brake lightly but when I saw the man continuing to walk I immediately pressed it down as far as I could.
'Q. Mrs. Kerrigan, using your own words, you transferred your foot as the first response from the gas, accelerator, but you did not--the first thing you did was take your foot from the gas?
A. Immediately.
Q. And apply it lightly on the brakes, is that right?
A. Yes.
Q. Then seeing more or moving forward you then pushed full hard on the brake, is that right?
* * *
* * *
A. Yes.
Q. And to ask you only one last question: My associate has taken the quote out of your testimony, what we believe to be a quote. Did you say that you put your foot lightly on the brake and when you saw him continuing to walk toward you, you applied it hard?
A. Yes.' 1
Her car skidded in a straight line and came to a stop at almost the same point where the plaintiff was struck. She saw the upper part of his body come down on the hood of the car following which he was thrown off balance and fell backward. Her car was equpped with power brakes which were in good operating condition.
Two other witnesses testified concerning the facts of the accident, namely, the driver of the cab which was preceding Mrs. Kerrigan's vehicle before the accident and Mr. Patterson, a limousine chauffeur.
Patterson had come on the scene prior to the accident and as he traveled along Magazine Street he had seen the plaintiff sitting in the left lane of the street. He stopped and got out of his vehicle at a point beyond where the man was sitting and then realized that the plaintiff was blind, noticing the white cane on the pavement beside him. He testified that he offered to take the plaintiff to his destination and while the plaintiff was reluctant even to speak to him or to accept assistance from him, he was eventually able to persuade the plaintiff to leave the street and go back to the curb. At this point Patterson was joined by another individual who had come on the scene in an effort to help the plaintiff. The plaintiff seemed willing to accept help from the other passerby, whereupon Patterson proceeded back to his car, leaving the plaintiff and the other person walking along the riverside of Magazine Street on th sidewalk in the direction away from Patterson's vehicle. About the time he got back to his vehicle Patterson turned around and saw the plaintiff back in the street again, walking against traffic appearing to be trying to cross the street fluctuating between the lanes of moving traffic. He saw a cab swerve to avoid hitting the plaintiff followed shortly thereafter by the Kerrigan automobile which struck the plaintiff. At the time he had spoken to the plaintiff before the accident, when he had succeeded in getting him out of the street onto the sidewalk, Patterson described the plaintiff's condition as bewildered, confused, incoherent and very mixed up. At one point when Patterson tried to lift the plaintiff to help him out of the street the plaintiff became angry, excited and belligerent. He seemed fearful or afraid and unwilling to accept assistance.
The driver of the cab which preceded Mrs. Kerrigan's automobile testified that he was proceding up Magazine Street when it was just starting to get dark and just after he had put on his headlights. He was in the left-hand lane about half way up the block between Thalia and Melpomene Streets when the plaintiff, who he knew at that time was blind, came from behind an automobile on his left into the street ahead of him. He slowed down and veered to the right so as to avoid striking him, coming to a stop in the right-hand lane of Magazine Street. As he stopped he heard the brakes of Mrs. Kerrigan's automobile and he saw the plaintiff go down in front of her car. He testified that before he had veered to the right the Kerrigan vehicle was about two car lengths behind him and at the time the plaintiff first stepped into the street from the parked automobile he was about 35 or 40 feet from him. This cab driver stated that he did not have any difficulting missing plaintiff but it was 'pretty close.' On cross examination this witness stated that when he saw the plaintiff walking toward him in the center of the lane he was 40 to 50 feet away from him, and at the point where he was about 20 feet away from the plaintiff he had enough time to move into the right lane. The right lane was unoccupied and nothing prevented him or Mrs. Kerrigan from changing lanes during this sequence of events.
The plaintiff offered the testimony of an expert traffic and safety engineer, Mr. John Exnicios, who testified that the skidmarks put down by Mrs. Kerrigan's vehicle indicated that she was traveling just under 25 miles per hour before the accident occurred. He further stated that when a driver is confronted with emergency a time lapse of three-quarters of a second occurs before the driver can react by applying the automobile's brakes. He interpolated that a vehicle moving 25 miles per hour would therefore travel 28 feet during this reaction period and would skid another 31 feet for a combined distance of 59 feet from the time the emergency is first noted. He also testified that national safety standards would have required Mrs. Kerrigan, traveling 25 miles per hour, to maintain a distance behind the cab she was following of 50 feet.
In his reasons for judgment the trial judge found that the actions of the plaintiff preceding the occurrence of the accident were not voluntary but were the result of terror so that his behavior did not constitute negligence under the circumstances. He found further that Mrs. Kerrigan was negligent and 'had the last clear chance to avoid the accident.' He was impressed by the fact that she did not press hard on the brake immediately when she discovered the emergency but rather had put her foot lightly on the brakes when she first saw the plaintiff and only applied the...
To continue reading
Request your trial
-
Waggenspack v. New Orleans Public Service, Inc.
...most likely to occur did in fact increase the possibility and foreseeability of injury to those intrusted to his care. In Epperly v. Kerrigan et al, 275 So.2d 884 this Court held in relatively analogous initial circumstances that the negligence of the same defendant involved herein was not ......
-
Foxworth v. State Farm Mut. Auto. Ins. Co., 6643
...or should have discovered plaintiff's peril, defendant had a reasonable opportunity to avoid the accident. Epperly v. Kerrigan, 275 So.2d 884 (La.App.4th Cir. 1973). Foxworth was undoubtedly in a position of peril. The physical evidence shows that when the ice truck is in the driveway or tu......
-
Wrights v. Aetna Ins. Co.
...the accident. Ortego v. State Farm Mutual Automobile Insurance Company, 295 So.2d 593 (La.App.3rd Cir., 1974); Epperly v. Kerrigan, 275 So.2d 884 (La.App.4th Cir., 1973). The trial judge rightly concluded that the doctrine did not apply in this case. The facts indicate that the defendant di......
-
Epperly v. Kerrigan
...Millers Mutual Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 275 So.2d 884. Writ denied. On the facts found, we cannot say the result is ...