Gross v. Teche Lines

• Decision Date: 15 January 1945
• Docket Number: 37449.
• Citation: 21 So.2d 378,207 La. 354
• Court: Louisiana Supreme Court
• Parties: GROSS v. TECHE LINES, Inc., et al.

21 So.2d 378

207 La. 354

GROSS v. TECHE LINES, Inc., et al.

No. 37449.

Supreme Court of Louisiana

January 15, 1945

Rehearing Denied Feb. 19, 1945.

M. C. Scharff, of New Orleans, for petitioner.

Porteous Johnson & Humphrey, of New Orleans, for defendant and appellee.

HIGGINS Justice.

The plaintiff instituted this suit against the Teche Lines, Inc., a carrier of passengers for hire, Jack Gorum, the owner of the Arkansas Traveler (a truck with a trailer) and his liability insurer in solido, to recover damages for personal injuries, medical expenses, loss of salary, etc., said to have been sustained and incurred as a result of a head on collision between the omnibus on which he was a passenger and the truck, allegedly cause by the joint and concurrent negligence of the drivers of both vehicles.

The defendants, in separate answers, admitted the accident but denied that the plaintiff was injured, and averred that their respective drivers were free from fault.

There was judgment in favor of the plaintiff and against the defendants, in solido, in the sum of $5,000, the insurance company's liability, under its policy, being limited to that amount, and judgment against Gorum and the Teche Lines Inc., in solido, for the additional sum of $6,164, plus interest, expert's fees and costs of court.

The Teche Lines appealed suspensively, Gorum appealed devolutively, and the Casualty Company paid the judgment to the extent of $5,000. The Court of Appeal for the Parish of Orleans annulled the judgment insofar as the Bus Company was concerned, on the ground that this Court, in Teche Lines Inc., v. Jack Gorum, 202 La. 993, 13 So.2d 291, and the Court of Appeal of the First Circuit in Leforte v. Gorum et al., 7 So.2d 733, held upon the same record now before us, that the driver of the bus was entirely free from negligence or fault in causing the collision. The judgment insofar as Gorum was concerned was affirmed. 15 So.2d 637.

The plaintiff applied to this Court for a writ of certiorari or review, calling our attention to the fact that his alert attorney had appeared before us in Teche Lines, Inc., v. Gorum, supra, when the case was called for argument here and asked for the privilege of being heard as an amicus curiae, due to the fact that the present proceeding was then pending before the Court of Appeal, Parish of Orleans, on the same record. The request was denied, counsel being assured that since the Teche Lines case against Gorum involved only the rule of ordinary care, the decision therein would not be binding in the instant one, where the law is different, requiring the carrier to exercise the highest degree of care to prevent injury to its passengers. Anything we stated in that case that might be construed as determining the issue involved in this one necessarily must be treated as obiter dictum, because the present suit was not before us at that time. We granted the writ and the matter is now here for review.

There is no dispute or doubt as to the rules of law applicable to this case. They are correctly stated in the case of Oppenheim v. Toye Bros. Yellow Cab Co., La.App., 7 So.2d 420, 421, as follows:

'It is well established that a carrier of passengers is not an insurer, but it is required to exercise the highest degree of care, vigilance and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. In truth, in many cases, the fact of injury to a passenger gives rise to the presumption that the carrier was negligent, 'since, under ordinary conditions, with proper direction and control, taxicabs do not collide with other vehicles. Hamburger v. Katz et al., 10 La.App. 215, 217, 120 So. 391.' Dawson v. Toye Bros. Yellow Cab Co., Inc., et al., 15 La.App. 326, 131 So. 716.

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'It is also well established in our jurisprudence that, where a passenger is injured in an accident and has failed to reach his destination in safety, the burden is on the carrier to prove itself free from fault, but it is not required to show how and why the passenger was injured in order to bar recovery. Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376; Dillon v. New Orleans Public Service, Inc., La.App., 170 So. 406. To the same effect see Bynum v. City of Monroe, La.App., 171 So. 116; Wark v. New Orleans Public Service Inc., La.App., 168 So. 797; Hughes v. Baton Rouge Electric Company, La.App., 188 So. 473.'

On September 12, 1940, at 1:30 o'clock p. m., the Teche passenger omnibus weighing 22,000 pounds and being 32 feet in length with its full capacity of passengers, was proceeding on the Airline Highway from Baton Rouge to New Orleans. On the same road a yellow Highway truck with a red flag towards the rear of it and pulling a grass cutting machine was going in the direction of Baton Rouge. The Levy Bros. truck and trailer, having an overall length of 25 feet was following the Highway truck. To the rear of this vehicle was the 22 foot truck and trailer of Jack Gorum, the Arkansas Traveler, loaded with 14,500 pounds of sugar. The Highway equipment was moving forward at the rate of three or four miles per hour and was in charge of two operators. The two trucks to the rear of it had been proceeding at the rate of about twenty-five or thirty miles per hour, 200 or 300 feet apart, for fourteen miles prior to arriving at the point four miles south of Gonzales. In this vicinity the highway is straight for a considerable distance. It consists of an 18 foot concrete strip with a black line down the center and a 25 foot wide earth shoulder on the side of the concrete strip where the bus was travelling. On the opposite side of the concrete, where the Highway equipment and the other two vehicles were approaching, the earth shoulder of the road is several feet in width. Adjacent to each of the shoulders of the road were canals. For a long distance in both directions from the scene of the accident there was nothing but a wooded section. The weather was clear and dry and there was nothing to intercept the views of the drivers of the respective machines, except the vehicles themselves. The operator of the bus observed the approaching Highway truck when they were nearly a mile apart and when he reached a point about 900 feet from it, he reduced the speed of the bus from approximately forty or forty-five miles an hour to about thirty or thirty-five miles per hour because the Levy truck at that time was also approaching the Highway truck from the rear. This action was taken by the bus operator as a precaution or safety measure in anticipation of the possibility that the driver of the Levy truck would attempt to go around the Highway truck and if he did so, would thereby block the path of the oncoming bus. The driver of the Levy truck decided he did not have time to negotiate the passage and after giving the proper signal, slowed the speed of his truck so as to remain on his right side of the concrete road and behind the Highway truck. In the meantime, the operator of the Arkansas Traveler admittedly neglected to keep a proper lookout and failed to observe that the Levy truck on his side of the road had reduced its rate of speed to conform to that of the preceding slow moving Highway truck. When he saw how near he was to the Levy trailer, he concluded, after applying his brakes that due to the heavy load he would be unable to stop in time to avoid striking the rear of the trailer in front of him. Gorum's employee did not notice the Highway truck and was unaware of the approaching bus from the opposite direction, his view being intercepted at that time because he was too close to the rear of the Levy trailer, which was covered with tarpaulin. When he was about 20 feet form the back of the Levy truck and going about 15 miles per hour, he swerved his wheels sharply to the left in order to avoid striking the Levy truck and to go around it. As he pulled over he discovered the presence of the bus, which at that time had passed the Highway equipment and had reached a position on its right side of the road where the front of the bus was adjacent to the radiator of the Levy truck. Gorum's operator instantly decided to cross the 9 foot concrete strip to his left and run upon the 25 foot shoulder of the road, in order to avoid a head on collision with the bus and fully accelerated his motor to accomplish this purpose. The bus driver quickly guided the bus to his right and off to the concrete on to the 25 foot shoulder of the road, thinking that the truck driver would remain on the concrete strip and thereby pass him. When the bus driver saw that the Arkansas Traveler completely blocked his path he instantly applied his brakes and succeeded in reducing the speed of the bus from approximately 25 or 30 miles per hour to about 15 or 18 miles per hour at the time the front end of the bus struck the right front side of the trailer Both vehicles were practically off of the concrete strip at the...