Gonzales v. Toye Bros. Yellow Cab Co.

• Decision Date: 04 November 1940
• Docket Number: 17388.
• Citation: Gonzales v. Toye Bros. Yellow Cab Co., 198 So. 379 (La. App. 1940)
• Court: Court of Appeal of Louisiana
• Parties: GONZALES v. TOYE BROS. YELLOW CAB CO.

198 So. 379

GONZALES v. TOYE BROS. YELLOW CAB CO.

No. 17388.

Court of Appeal of Louisiana, Orleans.

November 4, 1940

Rehearing Denied Nov. 8, 1940.

Appeal from First City Court of New Orleans; W. Alexander Bahns Judge.

Action by Mrs. Rosabelle Gonzales, wife of Philip Bourgeois, against the Toye Brothers Yellow Cab Company, for injuries suffered while passenger in taxicab. From a judgment for plaintiff defendant appeals.

Reversed and judgment directed.

Though automobiles must always be driven at a speed which will permit of their being stopped within a reasonable distance even at an extreme distance from a corner, a taxicab's speed of 8 to 25 miles per hour was not dangerously excessive 35 feet below corner.

A. D Danziger, of New Orleans, for appellant.

Daly & Hamlin, of New Orleans, for appellee.

JANVIER, Judge.

On the afternoon of December 22, 1938, plaintiff, Mrs. Rosabelle Gonzales Bourgeois, sustained physical injuries while a passenger for hire in a taxicab owned by defendant and operated by one of its employees. She seeks recovery of $300 to compensate her for her disability and suffering and for the medical expenses which resulted.

She alleges that she and her sister, Mrs. Elizabeth Curet, entered the cab in front of the D. H. Holmes store on Canal Street and instructed the chauffeur to drive to 1017 North Dupre Street and that he proceeded out Canal Street to Claiborne Avenue and had turned to the right, down that avenue, when he brought the cab to a stop so suddenly and unexpectedly that both she and her sister were thrown from their seat against the rear portion of the front seat with such force that they sustained injuries. She charges that the chauffuer did not stop his cab as he reached the corner, but, on the contrary, turned while proceeding at a speed of twenty-five miles per hour and continued down Claiborne Avenue at that rate for thirty-five or forty feet, when he violently applied his brakes, with the result mentioned above.

Defendant admits that plaintiff was a passenger, as alleged, and they do not dispute that she sustained injury, but they aver that the cab was being driven at a safe and reasonable speed, when suddenly and without warning, a boy on a bicycle emerged into its path, coming out from beyond two parked automobiles, when the cab was so close that the boy would have been struck had not the chauffeur applied his brakes violently. Defendant also avers that the cab was under proper control at the time and maintains that, in the emergency created solely by the action of the boy on the bicycle, the chauffeur did what any other prudent operator would have done, and that, consequently, there is no liability.

The amounts claimed are $278 for physical injuries and $22 for medical treatment and drug bills. There was judgment below for plaintiff for $100, the judge a quo having first maintained an exception of no right of action in plaintiff to claim the $22 on the ground that, during the existence of the community between herself and her husband, only her husband could present this claim. From this judgment defendant has appealed and plaintiff has answered the appeal, praying that the amount awarded be increased to $300.

The record shows that after the two ladies entered the cab they paid no attention to the action of the driver, except that they are both quite certain that he was operating the cab at a speed of twenty-five miles per hour and that, at this speed, he dashed around the corner into Claiborne Avenue without first either stopping or slowing down. Neither of the ladies, however, noticed whether the traffic light at the corner was red or green as the turn was made.

The chauffeur, on the other hand, states that, before making the turn, he brought the cab to a stop because the traffic light facing him showed red; that, as it turned to green he shifted his gears into first, or low, and then proceeded to turn the corner; that after he had proceeded about thirty-five feet into Claiborne Avenue and just as he had shifted into second, or intermediate speed, a young boy on a bicycle emerged suddenly into the street only a few feet in front of the cab; that at that time the cab was proceeding at a speed of six or eight miles per hour, and that he, the chauffeur, applied his brakes and brought the cab to a sudden stop. He explains his failure to see the boy sooner by the presence of two automobiles parked along the right-hand curb, one alongside the other, and he says that the boy was screened from his view by these two cars until the front of the bicycle had passed beyond the outside car. His statement concerning the movement of the bicycle is corroborated by Billy White, the young boy who was on the bicycle, and from whose testimony on this point we quote:

" A. * * * I turned into the gas station to get air and I came out, and I didn't know that the green light had turned and I was coming out straight, didn't have time to know which way I was going to turn, * * *.

" Q. Could you tell us whether there were a couple of cars parked at that

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