Foy v. Little

• Decision Date: 01 December 1939
• Docket Number: 6037.
• Citation: 197 So. 313
• Court: Court of Appeal of Louisiana — District of US
• Parties: FOY ET AL. v. LITTLE ET AL. (FIVE POINT SERVICE STATION, INC., INTERVENER).

197 So. 313

FOY ET AL. v. LITTLE ET AL. (FIVE POINT SERVICE STATION, INC., INTERVENER).

No. 6037.

Court of Appeal of Louisiana, Second Circuit.

December 1, 1939

Rehearing Denied June 10, 1940.

Writ of Certiorari and Review Denied July 18, 1940.

Appeal from Fifth Judicial District Court, Parish of Richland; Carey J. Ellis, Judge.

Action by Arnice Foy and others against Doctor Eugene S. Little and others, to recover on behalf of the named plaintiff and for the use and benefit of her three minor children for the death of the named plaintiff's husband who was fatally injured in a collision between a truck which he was driving and an automobile owned and operated by the named defendant, wherein the Five Point Service Station, Incorporated, deceased's employer, intervened to recover the amount of compensation paid and to be paid to the named plaintiff and for attorney's fees. The named plaintiff was awarded $9,794.50, and intervener's claim was upheld and ordered paid out of fund to be obtained by the named plaintiff, and from the judgment defendants appeal and the named plaintiff answered the appeal praying that the amount of the award be increased.

Judgment amended and affirmed as amended.

DREW J., dissenting on rehearing.

Theus Grisham, Davis & Leigh, of Monroe, for appellants.

Thompson & Thompson and James D. Sparks, all of Monroe, for appellees.

DREW Judge.

This is a suit by the widow in her own behalf and for the use and benefit of her three minor children, issue of her marriage with Isaah Foy, for damages arising from the death of Isaah Foy, caused by an automobile collision between a truck driven by Foy and a touring car owned and driven by Dr. E. S Little.

The collision occurred in the town of Winnsboro, Louisiana, in the intersection of Main Street with Pine. Winnsboro is a legally incorporated town under the laws of this state. Main Street is paved from the Missouri Pacific Railway tracks on the west to the easterly limits of the town and runs in an easterly and westerly direction. It forms a part of State Highway No. 15, and is practically straight for a distance of more than 1,200 feet west of Pine Street. Pine runs in a northerly and southerly direction and, from the corner of Prairie Street south of its intersection with Main to Main Street, it is paved. However, where it extends over and beyond Main Street north, it is not paved, but continues as a gravelled highway.

Ordinance No. 250 of the Town of Winnsboro makes Main Street a right of way or superior street to Pine, and provides that it is obligatory upon those using Pine Street to bring their cars to a complete stop before entering any right of way street on which stop signs have been installed. Rubber stop signs had been placed on Pine Street on both sides of Main years before this accident, and had been completely worn out. A metal stop sign had been placed on one side of Main where Pine Street intersects it, but not on the other. However, the record discloses that Dr. Little recognized the fact that Main Street was the superior one, and we feel justified in holding that it was.

The view to the west of one traveling south on Pine on reaching Main Street is obstructed by houses, fences, hedges, etc., until within a few feet of the intersection. The same obstructions are to the north view of Pine Street of one traveling east on Main.

On March 18, 1938, Isaah Foy, a 32-year-old negro, was in the employ of the Five Point Service Station, in Winnsboro, Louisiana. Part of his duties were to drive a Chevrolet pick-up truck of his employer's in going for and delivering tires and tubes when they were repaired. On about dusk of this day, he left the Service Station in the truck accompanied by a man by the name of Jenkins. Foy's mission was to go out to a truck owned by T. J. Owens, a short distance outside the corporate limits of Winnsboro, to bring in a tire for repairs. His course was east on Main Street. The weather was clear and there was no traffic on the street at the time. He was traveling on his right side of the street with the lights on the truck burning. At a speed which is a controversial question in this case. Dr. Little was at the time traveling south on Pine street. He was returning from a professional call. In the car with him were his wife and two gentlemen. Dr. Little's car had reached a point in the intersection of Main and Pine streets, approximately a car's length south of the black line designating the center of Main Street and near the center line of Pine, when it collided with the truck driven by Foy. The left headlight of the Foy truck left its imprint in the right door of the two-door sedan driven by Dr. Little. The force of the impact was sufficient to drive the Little car into the extreme southeast corner of the intersection and against a fire plug and telephone pole located just outside the curb in that corner. The intersection was at least 36 feet square. The truck turned end over end and stopped on its left side with its front end facing the northwest corner of the intersection and its back end under the rear bumper of Dr. Little's car.

The only result of the accident with which we are confronted here is that Isaah Foy was seriously injured and died from said injuries two or three days later. His widow was qualified as the natural tutrix of her minor children and instituted this suit against Dr. E. S. Little and his liability insurer praying for judgment in the sum of $20,544.50, with interest, the amount to be divided between her and her minor children in the proportion of one-half to her and one-half to them.

The acts of negligence charged to Dr. Little are as follows:

1. That he failed to bring his car to a complete stop before entering Main Street, known to him to be a highway, being a part of highway No. 15, as required by Ordinance 250 of the Town of Winnsboro, Louisiana;

2. That he was not keeping a proper lookout and drove into the highway, known to him to be a much traveled highway, without stopping, looking and listening, and in utter disregard of the rights of others;

3. That he drove from Pine Street, an inferior street, so designated by the ordinances of the Town of Winnsboro and by the Highway Regulatory Act, into Main Street, a superior street, and he drove into said Main Street in the center thereof, instead of on his right-hand side, as required by law;

4. That he suddenly dashed into the highway without looking either to the right or left, and drove directly into the path of the oncoming truck when that truck was so near and so close that it was impossible to avert a collision; that he did not sound his horn or give any other warning of his approach, and made no effort to avert the collision, which was brought about by his fault, recklessness and negligence; and

5. That he failed and refused to accord to Isaah Foy the right of way given him by Ordinance 250 of the Town of Winnsboro and by the Highway Regulatory Act being Act 21 of 1932, and on the contrary, drove into the highway at a time when he knew he could not cross with safety and when it was apparent to him or would have been apparent to him if he had looked, that the way was not clear and that the intersection was already preempted and occupied by the truck of the deceased.

Defendants admitted the accident, injuries and death of Isaah Foy and the issuance of the liability policy of insurance covering Dr. Little's car. They denied liability and denied that Dr. Little was negligent in any respect. They alleged that the accident was caused solely by the carelessness, recklessness and negligence of the deceased; they alleged he was driving 50 miles per hour, in violation of Ordinance 212 of the Town of Winnsboro; that he failed to maintain a proper lookout; that he did not have his truck under control; that he failed to accord to Dr. Little the right of preemption to which he was entitled, since he had entered the intersection first and had nearly negotiated it before the truck entered; and, in the alternative, they pleaded contributory negligence on the part of deceased, based upon the negligent acts above alleged.

The Five Point Service Station intervened to recover the amount of compensation paid and to be paid the widow of deceased, and for attorney's fees.

The lower court rendered the following opinion in the case:

" This suit involves an automobile collision at a street intersection in the Town of Winnsboro. Defendant, Dr. Little violated all ordinances of the Town and also the rules of the road when he entered the intersection. The ordinance requires a full stop, and the rules of the road would require a stop when entering a paved highway from a graveled road, as was done here. Dr. Little did not slow down sufficiently to cause him to go either into low or second gear, and therefore he was traveling at least at a considerable rate of speed.

" Isaah Foy was driving the second car involved in the accident on the paved highway and right of way street at a speed fixed from 25 to 50 miles per hour. An ordinance fixed the speed limit at 15 miles per hour, but this regulation may not be effective as the Town may not have complied with the general state law in making this regulation.

" Defendant does not deny his negligence in entering the intersection without stopping, but relies on contributory negligence to bar recovery. He contends that he entered the crossing first, had preempted the intersection and that decedent's excessive speed caused the accident. Defendant has the burden of proof when relying upon contributory negligence.

" There is no way of determining the speed of the Foy car. It was probably traveling in excess of 35 miles per hour. It was certainly making more than 15 miles, provided by Town ordinance, but,

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