Freeman v. Wilcox

• Decision Date: 12 November 1974
• Docket Number: No. 9966,9966
• Citation: 303 So.2d 840
• Parties: Albert FREEMAN v. Carol WILCOX et al.
• Court: Court of Appeal of Louisiana — District of US

Page 840

303 So.2d 840

Albert FREEMAN v. Carol WILCOX et al.

No. 9966.

Court of Appeal of Louisiana, First Circuit.

Nov. 12, 1974.

Rehearing Denied Dec. 16, 1974.

Writ Refused Feb. 7, 1975.

Bryant W. Conway, Baker, for appellant.

Eugene W. Groves, Baton Rouge, for appellees.

Before LOTTINGER and COVINGTON, JJ., and BAILES, J. Pro Tem.

BAILES, Judge Pro Tem.

Plaintiff brought suit individually and as administrator of the estate of his minor son, Paul Freeman, to recover his medical expenses, and for the injuries sustained by his son when he fell from the rear of a pickup truck owned and operated by the defendant, Carol Wilcox, and insured by Travelers Indemnity Company. The trial court dismissed the plaintiff's demands, holding Carol Wilcox was not negligent, and that even if he were, Paul Freeman was guilty of contributory negligence, barring the plaintiff's recovery. Plaintiff appealed. We reverse and award damages.

This accident occurred on Liberty Drive in East Baton Rouge Parish, on the evening of April 4, 1973. Liberty Drive is a dead-end street and runs in a southerly direction from its intersection with Blount Road. The surface of this road is generally bumpy, and apparently has numerous holes in its poorly blacktopped surface. The plaintiff and his family live on the east side of Liberty Drive a short distance from Blount Road. The defendant, Carol Wilcox, maintained thirteen head of livestock in a pasture fronting on the east side of Liberty Drive, approximately two blocks south of the Freeman residence.

On the evening of this accident, at about the hour of 7:30 p.m., Carol Wilcox stopped at the Freeman residence and invited Paul Freeman, age twelve, and his brothers, Carey Freeman, age nine, and Albert Darnell Freeman, age fourteen, to accompany him to this pasture and assist him in feeding his livestock. The Freeman boys, as they had on four or five previous occasions, rode in the bed of Wilcox's pickup truck to the pasture. Mr. Wilcox drove to the pasture, and the Freeman boys assisted him in feeding his animals. When this was completed he drove from the pasture and proceeded in a southerly direction down Liberty Drive a short distance to his mother's house, turned into her driveway, stopped his truck, and went inside the residence for a short visit with his mother. On his return, Carol Wilcox asked the Freeman boys if they were ready to return to their home. They replied that they were. At this time the Freeman boys were seated on the sides of the bed of the pickup truck. As Carol Wilcox proceeded to back from the driveway into Liberty Drive, young Paul and Carey Freeman assumed sitting positions on the tailgate of the truck, facing to the rear with their feet on the rear bumper. Paul, Carey and Albert Freeman testified that Carol Wilcox must have seen Carey and Paul assume their sitting position on the tailgate because Wilcox was looking through the rear window of the vehicle while he was backing from the driveway. Defendant driver then proceeded in a northerly direction on Liberty Drive at a 'fast' rate of speed. He hit a hole or bump in the road that caused the rear of the truck to bounce in the air, and as a result Paul was thrown to the road surface of Liberty Drive and sustained personal injuries. At the trial of the case, defendant Wilcox denied any knowledge of the occurrence of the accident. He denied that he stopped at the residence of Albert Freeman on the date of the accident and invited Paul, Carey and Albert Darnell Freeman to assist him in feeding his livestock, all contrary to the testimony of the three minor boys and their mother, Mrs. Lillian Freeman.

The accident was witnessed by Martha Ann Vessell, age sixteen, and her sister, Pleasant Jane Vessell, age fourteen, who live on Liberty Drive. These girls were walking along the edge of Liberty Drive at the time of the accident. The Wilcox's vehicle passed them prior to the accident, and they described its speed as 'fast' and saw the Wilcox vehicle strike a bump or chuckhole in the road surface, and saw Paul Freeman as he was thrown from the rear of the truck. For the reasons hereinafter stated, we reverse the judgment of the lower court and render judgment in favor of the plaintiff individually and as the administrator of his minor son.

After reviewing all of the evidence, we conclude that Wilcox was negligent in driving his truck at a rate of speed which must be considered excessive in light of his knowledge that young Paul Freeman was seated on the rear of the tailgate of his truck. Where a person undertakes the control and supervision of a child, he has the duty to use reasonable care to protect the child from injury. Although such person is not an insurer of the safety of the child, he is required to use reasonable care commensurate with the reasonable foreseeable risk of harm to which the child might be subjected while under his control and supervision. Williams v. Allstate Insurance Company, La.App., 268 So.2d 290 (1972).

In situations where children are injured the known characteristics and instincts of children must be considered in determining whether a person has exercised reasonable care. Herein Wilcox owed to young Paul Freeman the duty to exercise a greater degree of vigilance and care than to an adult. Williams v. Allstate Insurance Company, supra.

In the instant case the trial judge found as a matter of fact that the accident and events surrounding the accident occurred as testified to by Paul Freeman and his two brothers.

Applying the above quoted principles to the facts, we find that Carol Wilcox was negligent in not taking the necessary precautions to insure that young Paul Freeman and his brothers were safely seated in the rear of his pickup truck before returning to the Freeman residence. Although Wilcox denied the presence of the Freeman children in his truck, the trial court found that the boys were in fact in his truck. We hold that Carol Wilcox's failure to take the appropriate action to make sure that they were seated in a position of safety was the sole proximate cause of Paul Freeman's accident. Had Wilcox done so, he would...