Government Employees Insurance Company v. Davis

• Decision Date: 10 June 1959
• Docket Number: No. 17190.,17190.
• Citation: 266 F.2d 760
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Randle DAVIS, for the Use and Benefit of Rita Vone Davis, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

266 F.2d 760 (1959)

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Randle DAVIS, for the Use and Benefit of Rita Vone Davis, Appellee.

No. 17190.

United States Court of Appeals Fifth Circuit.

May 5, 1959.

Rehearing Denied June 10, 1959.

Numa V. Bertel, Jr., Hammett & Bertel, New Orleans, La., for appellant.

L. V. Cooley, Jr., Slidell, La., David E. Cooley, Baton Rouge, La., for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

RIVES, Circuit Judge.

Two questions are presented by this appeal from a judgment for plaintiffs entered upon a jury verdict: first, whether there was sufficient evidence to support the verdict; and, second, whether the district court erred in charging the jury with respect to the claimed contributory negligence of a 12½ year old girl. Since we have concluded with the appellant on the second question, and the evidence may not be the same on another trial,¹ we forego any discussion of the first question further than is necessary to describe the issues.

The Moyers' car, insured by the appellant, struck and severely injured Rita Vone Davis, then 12½ years of age and in the sixth grade at school. On the Davis story, the accident resulted from the Moyers' car swerving into the left lane of the road so far that it struck Rita Vone while she was standing either on the shoulder or on the first foot or so of the pavement on that side. The Moyers' version was that Rita Vone suddenly darted out into the highway from behind the Davis car in an effort to run across the highway, and that emergency efforts to stop Moyers' car, immediately taken, were unsuccessful.²

After stating the issues in the manner just quoted in footnote 2, the district court further charged the jury:

"In determining this question of contributory negligence, you must consider the age of the child, the circumstance of the case, and whether or not a child of that age reasonably would act in the way that you find she actually did act."

To that instruction the defendant, appellant here, objected as follows:

"If your Honor please, the Defendant excepts to that portion of the Court\'s Charge which required the Jury to make a decision as to whether or not the child may be held capable of contributory negligence, our position being that under the law of Louisiana a child of twelve legally is conclusively presumed to be capable of contributory negligence, and the Jury should not be required to decide that issue."

The court overruled the objection.

"This question of contributory negligence" to which the charge referred was necessarily the contributory negligence which the evidence tended to establish, namely, that Rita Vone ran across the highway without looking for approaching traffic. The accident occurred on the highway between Slidell, Louisiana, and New Orleans, shortly after 5:00 p. m. on June 13, 1956, in the daytime. It had rained hard and, while the rain had just ceased, there were still rivulets across the highway and it was wet and slippery. Judy Hopkins, Rita Vone's little friend, slightly younger than Rita, had also alighted from the Davis car and was waiting to go to her home across the highway, but Judy saw the approaching Moyers car. Rita's mother and father both saw it. Rita Vone testified that she saw some cars for which she waited, but that she did not see the Moyers car.³

At the request of the defendant, the district court instructed the jury "that under the law of Louisiana, a pedestrian crossing a highway is bound in law to have seen that which by the exercise of ordinary care he should have seen." The plaintiff made no objection, and apparently thought that instruction embodied a settled rule of law.⁴

Further, at the request of the defendant, the district court instructed the jury "that it is negligent for a pedestrian to cross the highway without looking in both directions for oncoming traffic." Again the plaintiff made no objection, and apparently thought that instruction also embodied a settled rule of law. As was said in Martin v. American Heating & Plumbing Co., La. App. Orleans, 1951, 52 So.2d 93, 97:

"Our jurisprudence is well settled to the effect that where a pedestrian of normal intelligence and possessing normal senses of sight and hearing suddenly appears from behind a parked vehicle and enters the roadway, without looking to see if any traffic is coming, he is guilty of negligence. Perret v. Geraci, supra 15 La.App. 329, 131 So. 72; Williams v. Lykes Bros. S. S. Co., 12 La.App. 127, 125 So. 153; Bailey v. Reggie, La.App., 22 So.2d 698."⁵

It was said of a girl eleven years and nine months of age in Hargus v. New Orleans Public Service, 1928, 9 La.App. 117, 118 So. 847, 851: "The car was coming in open view to her sister and to all the other witnesses. To attempt to cross in front of it was the height of imprudence on her part." A number of other Louisiana cases have denied liability where a child darted into the street from a place of safety.⁶ Those cases certainly hold, as a matter of law, that a normal child of the age of Rita Vone is capable of contributory negligence.

"* * * The injured child in this case was 11 years and 9 months of age, `intelligent, robust, stout, and very bright.\' Such a child is capable of fault or negligence." Hargus v. New Orleans Public Service, supra, 118 So. at page 851.

"* * * He was twelve years of age and there is nothing to show that he was not of sufficient intelligence to render it proper to say that, as a matter of law, he could be guilty of contributory negligence." Fontenot v. Freudenstein, La.App. 1941, 199 So. 677, 678, 679.

"In other words, it appears to us reasonable to assume that a child of twelve years or more, of normal intelligence, is capable of being held answerable to the charge of contributory negligence. The lack of intelligence, or of any other normal quality, is a matter of proof and as such the burden for its establishment must rest upon the party seeking to negate the application of the rule of contributory negligence." Jenkins v. Firemen\'s Insurance Co. of Newark, N. J., La.App. 2 Cir. 1955, 83 So.2d 494, 501.

There are many other cases holding that normal children of the age of Rita Vone, and even younger, are capable of contributory negligence.⁷ On the other hand, the Louisiana courts have held that children under the age of seven years cannot be guilty of contributory negligence.⁸

The Louisiana cases recognize the necessity of distinguishing between the capacity of a minor to be guilty of contributory negligence at all and the standard of care required of the minor. Louisiana, in effect, follows the analysis recommended in an excellent annotation in 174 A.L.R. 1080, 1083, on "Contributory Negligence of Children,"

"Basically, the present subject is divisible into three main parts, namely: (1) whether a child of a given age is chargeable at all with contributory negligence, (2) the bare question of capability being affirmatively established, the determination of the proper standard of care, and (3) whether a child capable of contributory negligence has complied with the particular standard of care with which he is specifically charged. Failure to recognize these divisible parts of the subject renders difficult any proper understanding of the rules established and followed in various jurisdictions."⁹

Once it has been established that a child is capable of contributory negligence, the Louisiana cases recognize that such negligence is not necessarily measured by the same standard as that applicable to an adult, but "that the negligence of a child must be judged in accordance with his experience, age, understanding, development, intelligence and capacity." Jenkins v. Firemen's Insurance Co. of Newark, N. J., supra, 83 So.2d at p. 501.¹⁰ In Cook v. Louisiana Public Utilities Co., La.App. 1 Cir. 1944, 19 So.2d 297, 298, it was said:

"In considering and applying the doctrine of contributory negligence as it relates to children, it is proper, as shown by numerous decisions on the subject, to take into account the peculiar facts and circumstances of each case and especially too, the intelligence and mental capacity of the child involved. It may well be that a boy ten or twelve years old could be said to be guilty of contributory negligence in conducting himself in the face of a rather common danger such as, for instance, the fast approach of an automobile on the highway or a city street, or a train on a railroad track, whereas in his conduct in relation to certain objects he knows nothing about or does not appreciate the dangers involved in coming in contact with them, he should not be held to the same standard of conduct as an adult. * * *"

The authorities generally recognize the principle that, "As to the child plaintiff * * *, the caution required is determined according to the maturity and capacity of the plaintiff under the particular circumstances of the case." 38 Am. Jur., Negligence, Sec. 204, p. 885.¹¹

In Louisiana, appellate courts have the right and duty to review both the law and the facts in all civil cases. Louisiana Constitution of 1921, Art. 7, Sec. 10, L.S.A. "As a consequence of that situation, in civil jury cases federal courts evaluating decisions of Louisiana state courts as precedents have the difficult task of separating the decisions of the Louisiana courts on the law from their review of the facts." Wright v. Paramount-Richards Theatres, 5 Cir., 1952, 198 F.2d 303, 306.

It is entirely clear, as we have said, that Hargus v. New Orleans Public Service Co., supra, and the cases cited in footnote, 7 supra, have settled, as a matter of law, that a normal child of the age of Rita Vone is capable of contributory negligence. Those cases denied liability to children who undertook to cross a street or highway without looking for traffic. Whether they established that such conduct is negligence on the part of a normal child at that age as a matter of law in all cases, or simply as a matter of fact...