Hudgins v. Gage

• Court: Court of Appeal of Louisiana
• Writing for the Court: OTT, Judge.
• Citation: Hudgins v. Gage, 194 So. 105 (La. App. 1940)
• Decision Date: 04 March 1940
• Docket Number: 2084.
• Parties: HUDGINS v. GAGE ET AL.

194 So. 105

HUDGINS v. GAGE ET AL.

No. 2084.

Court of Appeal of Louisiana, First Circuit.

March 4, 1940

Rehearing Denied April 10, 1940.

Appeal from District Court, Parish of Calcasieu; John T. Hood Judge.

Personal injury action by Mary Hudgins against Kenneth K. Gage and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Cline Thompson, Lawes & Cavanaugh, of Lake Charles, for appellant.

McCoy & King, of Lake Charles, for appellee.

OTT Judge.

The plaintiff in this suit seeks to recover damages in the total sum of $56,020 for personal injuries which she claims to have received in an automobile collision between twelve and one o'clock on the morning of August 19, 1938, on U.S Highway No. 75 between Galveston and Houston, Texas. The plaintiff is a trained nurse, twenty-nine years of age, and resides in Houston, Texas. The defendants in the suit are Kenneth K. Gage, his employer, the Lane Wells Company, and the Travelers Insurance Company alleged to be the insurance carrier on the car driven by Gage.

Another suit was filed by Miss Lillian Frances Dance, also a resident of Houston, Texas, against the same defendants for damages in the total sum of $65,000 for personal injuries which she claims to have received in the same collision. Both of these young ladies outline their respective injuries and damage in separate petitions. As the question of liability in each case involves the same alleged acts of negligence, the cases were consolidated for the purpose of trial but separate judgments were entered in each case, dismissing the suit. Separate appeals were taken and perfected by each plaintiff, but the two cases were argued and briefed together in this court. As the question of liability in each case depends on the same state of facts, we will consider the cases together but render separate decrees.

The issues in the cases will appear from a brief statement of what we consider the vital and practically undisputed facts as these facts appear from the pleadings and the evidence.

Plaintiffs were guest passengers in a 1936 Ford V 8 owned and being driven by one George Elting. Miss Hudgins was sitting on the front seat to the right of Elting and Miss Dance was sitting on the rear seat on the left side. Elting was driving in a northerly direction from Galveston to Houston, and when he reached a crossroad in or near the village of Webster, he slowed down from a speed of about 50 miles per hour to a speed of 30 to 35 miles per hour. Gage had been following the Elting car for some two miles and when he reached this crossroad in or near Webster, he slowed down his speed to about the same speed of Elting. Both cars traveled at about the same speed for some quarter of a mile, the Gage car following the Elting car with a distance of 100 to 150 feet between them according to Gage and one other witness, or with a distance of 60 to 70 feet between them according to Elting's estimate. Both Gage and Elting were driving on their right or the east side of the paved highway. The road at this point is straight and the night was clear.

Coming from the north or opposite direction was a truck being driven by a colored man named Deman with a small colored girl sitting beside him and a young hitch-hiker riding in the back of the truck. This truck (which we will refer to as the Deman truck) was on its extreme right or the west side of the road and was preparing to stop at a place on the west side of the road called Polk's Place. This truck was going at a very slow rate of speed. Another truck driven by one Bingham (which we will refer to as the ice truck) was following the Deman slow moving truck and was being driven at a very fast speed. In this ice truck there were seven or eight negroes.

To get some idea of what happened, we can picture in our minds these two cars, the Elting car in which plaintiffs were riding followed by Gage in the rear at a distance anywhere from 60 to 150 feet and both cars going from 30 to 35 miles per hour on their side of the road, and the two trucks coming from the opposite direction, the Deman truck going very slowly on its side of the road and the ice truck rapidly approaching from the rear. Just before the ice truck caught up with the Deman truck, and about the time the Elting car was almost opposite the Deman truck, the ice truck suddenly swerved to its left in an attempt to pass the Deman truck ahead of it and struck the left front part of the Elting car a terrific blow, almost demolishing the entire left front side of the car. The ice truck continued on and struck and side-swiped the Gage car on the left and then turned almost completely around facing back north beside the Gage car. Three of the negroes in this ice truck were killed instantly, one of them being catapulted into the air, striking the hood and windshield of the Gage car and then bouncing off on the shoulder of the road a few feet away. The Deman truck was thrown down the road and turned over, killing the little colored girl beside the driver in that truck.

Before discussing the alleged acts of negligence on the part of Gage by which the plaintiffs in the two suits hope to pin liability on Gage and his employer, it is well to state that there is no proof that the defendant insurance company carried liability insurance on the Gage car, so this company might be dismissed from the suit for that reason. It is also well to state that no negligence is charged to Elting, nor is there any contributory negligence charged to either plaintiff. While...