Folse v. Flynn

• Decision Date: 10 February 1941
• Docket Number: 17100
• Citation: 200 So. 160
• Court: Court of Appeal of Louisiana — District of US
• Parties: FOLSE v. FLYNN

200 So. 160

FOLSE v. FLYNN

No. 17100

Court of Appeal of Louisiana, Orleans.

February 10, 1941

Milling, Godchaux, Saal & Milling and M. Truman Woodward Jr., all of New Orleans, for appellant.

Lavinius L. Williams, of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

This suit results from a collision between two automobiles, one driven by the plaintiff, Norman Folse, and the other by the defendant, Dennis J. Flynn. The accident occurred at the intersection of Metairie Road and Pontchartrain Boulevard in the City of New Orleans, at about 6:30 a. m., October 19, 1936. The plaintiff alleges that he drove his Chevrolet Sedan into the intersection from Metairie Road carefully and prudently, and had almost completed the intersection when he was struck near the right, rear wheel by the Flynn car, which was being operated at "a terrific rate of speed", with the result that his car was damaged to the extent of $ 185.95 and he received physical injuries and was put to certain medical expense, for all of which he claims the sum of $ 4,421.06.

The defendant denied that his car was being operated at an excessive rate of speed and all other charges of negligence imputed to him by plaintiff, and averred that on the morning of the accident he was operating his Chevrolet automobile out Pontchartrain Boulevard in the direction of Lake Pontchartrain, and that as he entered the intersection of Pontchartrain Boulevard and Metairie Road, he slackened the speed of his automobile "almost bringing the same to a complete stop, shifted the gear of his automobile into low speed and proceeded to observe the intersection, aforedescribed, before attempting to cross same". He avers that the accident was caused solely by the negligence of the plaintiff in that he was driving at an "unlawful and negligent rate of speed" and "suddenly, and without warning or signal entered said intersection" and "attempted to cross said intersection" in front of defendant's automobile. Defendant reconvened and asked for judgment against the plaintiff for the cost of repairing his Chevrolet automobile amounting to $ 76.35.

The court, a qua, held that both drivers were guilty of negligence and dismissed both the main and the reconventional demands. The plaintiff has appealed to this Court.

In his reasons for judgment the learned judge, a quo, stated: "It is impossible for me to understand why two cars, in a broad, wide open space such as the intersection of Pontchartrain Boulevard with Metairie Boulevard could possibly collide, under the circumstances as shown by the testimony in this case, unless both drivers were negligent and their negligence continued up to the moment of the impact."

It is undoubtedly true, as we have heretofore observed, that in most intersectional collisions both parties are at fault. Guernsey et al. v. Toye Bros. Yellow Cab Company, Inc., et al., La.App., 172 So. 459. We are not sure that this case is not an exception. However, the question of contributory negligence is not an issue unless it has been raised by the pleadings, for specific defenses must be specifically pleaded.

Counsel for appellee refers to paragraphs 4, 5, 6 and 7 of his reconventional demand which, in effect, he claims, meets the requirement concerning special pleading of this defense. Paragraph 4 charges the plaintiff, in general terms, with operating his automobile in a "reckless, unlawful and negligent manner and without due regard for the safety of persons or traffic, at a high, unlawful and negligent rate of speed". In paragraph 5 it is said that the accident occurred solely as a consequence of plaintiff's negligence and in paragraph 6 that the accident was due "solely as the result of the negligence of the defendant in reconvention", and, finally, in paragraph 7 it is alleged that the "collision complained of and the damage resultant therefrom was due to and caused solely by the negligence of the said Norman Folse."

All that can be said with respect to these allegations is that they amount to a charge of primary negligence. In the case of Althans v. Toye Bros. Yellow Cab Company, 191 So. 717, 722, we said: "We experience no difficulty in determining that the allegations of the answer in this case are insufficient to raise the issue of contributory negligence. It is to be noted that throughout its answer the defendant specifically denies that its employee was at fault and affirmatively avers that the sole and proximate cause of the accident was the plaintiff's negligence, setting forth the particulars in detail".

The effect of the decision in that case is realized by counsel, who makes the novel contention that the decision can have no bearing upon the present controversy because the accident, which is the basis of this suit, occurred in October, 1936, whereas the Althans case was not decided until 1939. Counsel is confusing the effect of a decision of an appellate court with that of an act of the Legislature which, of course, is, or should be, a totally different proposition. Moreover, the Althans case did not announce any new doctrine for in the case of Gauvereau v. Checker Cab Company, 14 La.App. 448, 131 So. 590, 591, decided in 1930, we said: "Contributory negligence must be specially pleaded and proven. No such plea is made in this case, and the city ordinance upon which defendant relies is not referred to in his answer. It is not sufficient to aver the negligence of plaintiff to be the sole cause of the accident". See, also, Poncet v. South New Orleans Light & Traction Co., 3 La.App. 64; Giangrosso v. Schweitzer, 10 La.App. 777, 123 So. 127; Saks v. Eichel, La.App., 167 So. 464; Guillory v. Horecky, et al., 185 La. 21, 168 So. 481, and numerous other cases in this and other jurisdictions.

The defendant is charged with negligence in that he was driving at an excessive rate of speed and entered the intersection without stopping, at a time when plaintiff's car had preempted it.

Pontchartrain Boulevard is a roadway on the left bank of the New Basin Canal. It intersects Metairie Road at right angles at a point where a bridge spans the Canal. Metairie Road stops at the bridge, the prolongation of the roadway on the other side of the Canal being called "City Park Avenue".

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