Gonzales v. Xerox Corp., 55968

Citation320 So.2d 163,254 La. 182
Decision Date01 October 1975
Docket NumberNo. 55968,55968
PartiesPeter GONZALES and Patricia Gonzales v. The XEROX CORPORATION, et al.
CourtSupreme Court of Louisiana

Page 163

320 So.2d 163
Peter GONZALES and Patricia Gonzales
No. 55968.
Supreme Court of Louisiana.
Oct. 1, 1975.

Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for defendants-applicants.

Roy Maughan, Ltd., Elliott W. Atkinson, Jr., Roy Maughan, Baton Rouge, for plaintiffs-respondents.

CALOGERO, Justice.

We granted writs in this case upon application of defendants to review a judgment of the First Circuit Court of Appeal, 307 So.2d 153 (La.App.1st Cir. 1974). The trial court, after a jury trial, had dismissed plaintiffs' suit. Plaintiff appealed seeking a reversal of the trial court judgment, and a favorable determination on the merits, by the Court of Appeal. Defendant, satisfied with the verdict, urged the Court of Appeal to affirm the trial court judgment. The Court of Appeal reversed and remanded to the trial court for a new trial, finding reversible error in the trial court's refusal to grant a requested special

Page 164

jury charge. Our writ grant was prompted by a belief that remand of the case under the circumstances may have been improper.

Dawn Rene Gonzales, plaintiffs' four and one-half year old daughter, was killed on July 7, 1973, at Grand Isle, Louisiana, after she was struck by a car driven by defendant Juan G. Hernandez, an employee of Xerox Corporation. Employers Insurance of Wausau, a third defendant, carried the automobile liability insurance on the Xerox vehicle. The little girl was struck as she attempted to cross Louisiana Highway 1. Plaintiffs charged Hernandez with negligence proximately causing the child's death. Defendants denied that Hernandez was negligent and alternatively pleaded contributory negligence of plaintiffs, allegedly a lack of proper parental supervision.

At the trial, plaintiffs had requested that the judge give this special charge to the jury:

'A motorist's duty to look ahead and observe never ceases, and a motorist must see what he can see and in legel contemplation does see, and his failure to see what he could have seen by exercising due diligence does not absolve him from liability in tesulting injuries to others.'

The trial judge refused to give the charge and did not incorporate its substance into his general charge. He did, however, give an instruction concerning a motorist's duty in the vicinity of small children, as follows:

'In considering whether there is negligence in this particular case, the law is to the effect that persons operating automobiles on public streets and highways in the vicinity of small children have a high duty of care. The motorist encountering children upon the roadside must anticipate that the very young are possessed of but limited judgment and that there actions are likely to be sudden, unpredictable and often foolish.'

The Court of Appeal decided that the instruction which the judge gave did not express the substance of the requested special charge and that the requested charge should have been given because it stated pertinent and applicable law. That legal principle, in practically the identical words, has been enunciated in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) and numerous subsequent opinions of our courts. See, for example, Bell v. Allstate Insurance Co., 260 So.2d 363 (La.App.4th Cir. 1972); Pea v. Smith, 224 So.2d 37 (La.App.1st Cir. 1969); Reynolds v. Transamerica Ins. Co., 221 So.2d 889 (La.App.1st Cir. 1969).

The Court of Appeal stated that the essential question of fact in this case is this:

'Even if defendant under these...

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