Iglesias v. Campbell
| Decision Date | 30 April 1937 |
| Docket Number | 5324 |
| Citation | 175 So. 145 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | IGLESIAS v. CAMPBELL |
J. G Palmer, of Shreveport, for appellant.
Hendrick & Hendrick, of Shreveport, for appellee.
The pleadings, the facts, and the issues of this case are elaborately discussed in our original opinion (170 So. 265). We shall abstain from repeating them beyond the extent necessary to an intelligent presentation and consideration of the points and issues raised by the application for rehearing.
The accident out of which this suit arose occurred in the intersection of Texas avenue and Jordan street in the city of Shreveport, at night. We found and held that plaintiff accompanied by his wife and minor son, four years old at the time of accident, was crossing Texas avenue from east to west outside of the lane established for the use of pedestrians, and in doing so he violated an ordinance of the city and was negligent. We also found and held that defendant's son, J. S. Campbell, operating the offending automobile, was also negligent in that he was not maintaining adequate lookout for traffic conditions in the intersections, and because of his inattention in this respect, the car while moving slowly struck and injured the minor son. As ultimate findings, we held that had defendant's son been keeping such lookout ahead and to the sides, as required of him by law, he would have observed plaintiff and his wife and child in the act of crossing the intersection in time to avert the accident; that he is legally held to see that which he could have seen by the exercise of a reasonable degree of vigilance, and therefore had the last clear chance to avoid the accident.
Our conclusions on the questions of fact in the case are not now seriously questioned by defendant. We adhere to them. But assidious counsel vigorously challenges the right of this court to invoke the doctrine of the last clear chance and to make application of it here for the primary reason that it was not specifically pleaded by the plaintiff; and in effect, alternatively, the doctrine was erroneously applied for because:
1. Plaintiff's own negligence continued down to the moment of the accident; and
2. He was not seen by defendant's son, prior to the collision.
The primary question appears to be res nova in this state. Due to the uniqueness of our system of pleading and practice, the rule and jurisprudence prevailing in other states pertinent to the question are not controlling here. We do not think defendant's contention sound. If it is sound, then in all tort actions where defendant's negligence is relied upon for a recovery and plaintiff's contributory negligence is pleaded in bar of recovery and the developed facts support this plea, but at the same time reveal that defendant had the last clear chance to prevent the accident, plaintiff would be denied recovery unless he, before judgment, amended his petition or filed other pleading definitely raising that issue. It could happen that a plaintiff, with reasonable grounds to sustain his position, would contend throughout the case that the evidence did not establish that he was contributorily negligent, yet the court, after submission of the case, would disagree with this position and hold that plaintiff was contributorily negligent and decide against him, though it be further found that defendant had the last clear chance to avoid the accident, simply because plaintiff had not expressly pleaded it.
Contributory negligence as the or one of the proximate causes of an accident, as a general rule will bar recovery by the person guilty of it. A well-known exception to this rule is pertinent where the testimony warrants the application of the last clear chance doctrine. In effect, in such a case the court will say to the defendant that notwithstanding plaintiff's own negligence, as one of the causes of the accident, you could have averted its happening if you had exercised due care and attention; that you had the last clear chance to do so and failed in your duty to avail yourself of it. No valid criticism should be found in such rule. The carelessness of the defendant, in such a case, amounts to a breach of duty and is actionable. In the final analysis it is the efficient cause of the offense.
It is well settled in this state that a plaintiff need not negative his own negligence in a tort suit in order to disclose a cause of action or recover therein. Saks v. Eichel (La.App.) 167 So. 464; Buechner et ux. v. City of New Orleans, 112 La. 599, 36 So. 603, 66 L.R.A. 334, 104 Am. St. Rep. 455.
Replications and rejoinders are not admitted under our system of pleading and practice. New facts set up by defendant are presumed to be denied by plaintiff. Code Prac. art. 329. The tacit denial of such new facts tenders an issue. In brief, defendant's counsel says:
We think the pleadings do lay the foundation for the application of this doctrine.
Among the alternative allegations of the answer, the following appears: "That plaintiff and his wife who were present and had complete control and direction of the movements of the said child at the time, were likewise guilty of contributory negligence in the particulars just alleged and that the combined negligence of all parties in interest caused the said injury and therefore plaintiff has no right to call upon defendant to compensate him or the said minor for the alleged damages." These allegations, coupled with others of the answer, definitely charge plaintiff with negligence as a proximate cause of the accident. Under article 329 of the Code of Practice, plaintiff is...
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