Jenkins v. Firemen's Ins. Co. of Newark, N. J.

• Decision Date: 02 November 1955
• Docket Number: No. 8419,8419
• Citation: 83 So.2d 494
• Parties: Andrew J. JENKINS, et al., Plaintiffs-Appellees, v. FIREMEN'S INSURANCE COMPANY OF NEWARK, N. J., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 494

83 So.2d 494

Andrew J. JENKINS, et al., Plaintiffs-Appellees, v. FIREMEN'S INSURANCE COMPANY OF NEWARK, N. J., et al Defendants-Appellants.

No. 8419.

Court of Appeal of Louisiana, Second Circuit.

Nov. 2, 1955.

Rehearing Denied Nov. 29, 1955.

Writ of Certiorari Denied Jan. 16, 1956.

Jackson, Mayer, & Kennedy, Hargrove, Guyton, Van Hook & Hargrove, Shreveport, for appellants.

Charles L. Barnett, Shreveport, for appellees.

HARDY, Judge.

This is an action by plaintiff, individually and for the use and benefit of his minor child, in which he seeks damages resulting from grievous and permanent personal injuries sustained by his daughter, Dora Marie Jenkins. Named as defendants are Cecil L. Albritton, driver of the automobile which inflicted the injuries, C. R. Minor, Jr., his employer, and Firemen's Insurance Company of Newark, the liability insurer of defendant Albritton. From a judgment in favor of plaintiff in his individual capacity in the sum of $9,670.87, and in his capacity as tutor for the use and benefit of his minor child, Dora Marie Jenkins, in the sum of $50,000, defendants have brought this appeal.

The accident occurred between 5:00 and 5:30 P. M. of September 29, 1953, on paved Highway No. 71 in Bossier Parish at a point about two miles south of the west gate entrance to Barksdale Field and almost immediately in front of the residence of the Jenkins family which is located approximately thirty feet west of the highway right-of-way. Defendant, Albritton, a consulting engineer employed by defendant Minor, accompanied by a fellow employee, one John W. Everett, was driving his 1951 Chevrolet Sedan automobile north on Highway 71 at a speed variously estimated at from 45 to 60 miles per hour and, at about the time and place described, was meeting and passing a stake-bodied truck which was moving south on the highway, driven by Samuel J. Crawford, a negro employee of McDowell Builders Supply Company. Just as the two vehicles met, Dora Marie Jenkins, who had been in a position several feet west of the paved slab of the highway, attempted to run across the highway. In the effort she darted suddenly from behind the truck directly into the path of the Albritton automobile and was struck by the right front thereof and hurled some 28 feet from the point of impact to a position on the east side of the highway. The driver Albritton, who had glimpsed the child through the slatted side of the body of the passing truck as she began to run at full speed into the highway, immediately sounded his horn and applied his brakes, at the same time turning his car slightly to the right in a vain attempt to avoid striking the child. Measurements made shortly following the accident by a State Trooper established the fact that after the application of the brakes the car traveled 62 feet to the point of impact and came to a complete stop 28 feet past said point, and that during the greater part of the total distance of 90 feet required to bring the car to a stop the right wheels of the vehicle were on the gravel shoulder to the east of the paved slab. At the time of the accident Dora Marie Jenkins was thirteen years, four months and nine days of age. The Jenkins family had moved to the residence in which they were living at the time of the accident on December 31, 1952, immediately prior to which time its home had been on a farm near Robeline, and, before that, at other rural locations in Natchitoches and Sabine Parishes.

The above facts are undisputed. There is some conflict and uncertainty with reference to other material facts. According to the testimony of the defendant Albritton he had observed the little girl on the west side of the road, apparently jumping or playing, at a time when he was between a quarter and a half mile distant from the point of the accident, which distance he attempted to fix more accurately by estimating it to be about 1,800 feet. Admittedly Albritton did not keep his attention focused on the child, but was concentrating on the approaching truck, although he testified that he was under the impression that she had left the place at which he first observed her, and, in any event, he did not notice her again until he glimpsed her upraised hands through the side of the McDowell truck as she began to run across the highway. Albritton's companion, Everett, testified that he did not see the child until the car was about 250 feet south of the point of impact, at which time she was three or four feet to the left of the paved slab of the highway. This witness testified that the little girl was not walking but she seemed to be jigging or shuffling, or, as he said, 'maybe dancing.'

Neither of these witnesses observed any action which indicated that the unfortunate little girl would attempt to cross the highway. There was no traffic moving in either direction between the Albritton car and the McDowell truck. The negro, Crawford, driver of the truck, was the only witness who testified that the little girl, whom he had noticed by the side of the road, appeared as if she had any intention of crossing the highway.

Other relevant facts relate to the locus in quo. The Jenkins house, located, as we have said, to the west of the highway and about 30 feet distant from the right-of-way, is about 300 feet south of Peters Bros. Store, which is also located on the west side of the highway. Except for one other house located between the Peters Store and the Jenkins residence there are no other buildings in the immediate vicinity. The photographs and the engineer's plat of the locality show that there is no roadway nor place of crossing from one side to the other of the highway anywhere nearby and these exhibits also reflect the fact that there is nothing to the east of the highway in the nature of any sort of attraction which would indicate the reasonable possibility of the need for pedestrian crossing of the highway. To the east of the highway, apparently along the edge of the right-of-way, there is a line of public utility poles, for either telephone or electrical service, then further to the east a railroad track, and on the opposite side of the tracks there are located, at intervals, some negro tenant houses.

Plaintiff's petition specifies seven charges of actionable negligence on the part of defendant Albritton, which were allegedly the sole, direct and proximate causes of the accident, as follows:

1. Operating his automobile in a careless and reckless manner.

2. Failing to slow down and take precautions after he saw or should have seen said child run up to the highway.

3. Failing to slow down and take precautions after he saw said child playing on the highway shoulder.

4. Being inattentive to his driving by talking and conversing to his passenger after he saw said child in apparent danger.

5. By failing to keep his car under proper control.

6. By driving at an excessive rate of speed of 60 miles an hour into a congested area and into apparent danger.

7. By failing to sound his horn or warn the child of his approach.

The testimony in the record overwhelmingly sustains the conclusion that the defendant Albritton was not operating his automobile in a careless and reckless manner; he was not being inattentive to his driving, inasmuch as both the testimony of himself and his companion was positive on the point that they were not talking at the time; he did have his car under proper control; he was not driving at a speed of 60 miles an hour, and he was not approaching a congested area, nor was he proceeding into any apparent danger.

In considering the details of the above points we are impressed with the fact that the uncontradicted testimony in the record establishes the fact that Albritton brought his automobile to a stop, from the time he applied the brakes, within a distance of 90 feet. Reference to the long accepted table of stopping distances, as set forth in 14 T.L.R. 503, shows that the net braking distance, under excellent conditions, of a car moving at 40 miles per hour is 62.07 feet, while the net braking distance, under excellent conditions, of a car moving 50 miles per hour is 98 feet. It is therefore evident that the Albritton car would not have been moving at a speed of as much as 50 miles per hour, and the circumstance that, during the greater part of the actual braking distance, the right wheels were off of the concrete slab and on the gravel shoulder would have lessened the distance applicable under excellent conditions. We think it is established, with reasonable certainty, that the car was being driven at approximately 45 miles per hour. Certainly this was not an excessive rate of speed on an open highway in an uncongested area at a point where there was no highway crossing of any kind. We point out that this speed is the approximate estimate given by both the occupants of the automobile. We further think it is clear, under the circumstances described and in view of the actual stopping distance of 90 feet, that the car was under the full and proper control of the driver.

The only remaining question bearing upon the charges of negligence above enumerated depends upon a resolution as to whether Albritton was under a legal responsibility and obligation to take additional precautions, after seeing a child playing on the shoulder of the highway, by further slowing his speed and sounding his horn. Careful examination of all cases involving injury to a child or children by automotive vehicles indicates that our jurisprudence has not established, nor, indeed, could it have established within reason any hard and fast rule by which liability resulting from negligence can be fixed. Able briefs of learned counsel for both plaintiff and defendants have pointed out those cases which they regard as being most favorable to their respective contentions, but there are numerous other pronouncements which are equally deserving of consideration. There is no necessity for engaging in a detailed...