Johnson v. Lowrey

• Decision Date: 26 January 1954
• Docket Number: No. 8093,8093
• Citation: 70 So.2d 212
• Parties: JOHNSON v. LOWREY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 212

70 So.2d 212

JOHNSON v. LOWREY et al.

No. 8093.

Court of Appeal of Louisiana, Second Circuit.

Jan. 26, 1954.

Meadors, Shaw & Meadors, Homer, for appellant.

Seals, Atkins & Robinson, Homer, for appellees.

GLADNEY, Judge.

Herbert Lowrey and Charlie Traylor, defendant owner and defendant driver of a Chevrolet automobile, are sued herein through a tort action for monetary damages which were allegedly caused when, during the night of May 29, 1952, the automobile ran into the rear of a tractor owned by Andrew Johnson and J. D. Olds and driven by Fred Jenkins, the accident occurring on the Homer-Lisbon highway about two miles east of Homer.

After trial there was judgment awarding plaintiffs the sum of $791.10, but only against the defendant Traylor, the court a quo rejecting plaintiffs' claim against Lowrey and also dismissing the latter's demand in reconvention.

The facts giving rise to this litigation are comparatively simple and are not seriously disputed. On the above date after cutting and harvesting oats until after dark on Lowrey's farm east of Lisbon, Johnson instructed Jenkins to drive the tractor to Homer and he, Johnson, went ahead in his Jeep. The departure of the tractor from the Lowrey farm was observed by Traylor who noticed, according to his testimony, that there were two front lights and one rear light, all white, burning brightly upon the tractor. A short while after the tractor left Lowrey asked Traylor, his colored share-cropper, to take Lowrey's Chevrolet automobile and go to the home of one Hemphill on the Lisbon-Homer highway and secure for him on credit a pint of whiskey. Traylor, on this journey, passed through Lisbon where he picked up R. C. Robinson and two children, all colored, and continued toward Hemphill's residence west of Lisbon but some six miles east of Homer. Upon arriving there and not finding anyone at home, Traylor drove the car in the direction of Homer and was involved in the accident that brought on this suit.

Traylor, Robinson, Jenkins, T. R. Peterson and Billy Barnette were summoned as eyewitnesses to the accident. Traylor and Robinson both testified that just prior to the collision the automobile was traveling about 20 miles per hour, that they were blinded by an approaching car and by the rear white light of the tractor, which they assumed to be an on-coming automobile with one headlight. Jenkins said he was driving the tractor on the extreme right side of the highway at about 12 miles per hour when he was struck by Traylor under circumstances which indicated the car was traveling at a high speed. Peterson and Barnette estimated the speed of the Chevrolet at 50 to 60 miles per hour and that there was no automobile traveling eastward in the vicinity at the time of the collision.

Traylor is charged with actionable negligence through his failure to keep a proper lookout and by driving at an excessive speed. Also it is alleged he was intoxicated at the time. We find the latter charge has not been substantiated. Johnson, Jenkins and Sims, a state patrolman, all closely examined Traylor at the scene of the accident for evidence of drinking and none of these could positively testify he was drunk. Likewise we find the charge of excessive speed is not sufficiently proven. On the other hand we are convinced the proximate cause of the accident was the failure of Traylor to keep a proper lookout and that had he been doing this he would have seen the tractor and not run into it. It was testified by Johnson and Jenkins the rear white light was slanted to cast its rays downward in order to facilitate work at night and that it did not reflect a blinding light. We believe this evidence reasonable and we accept it. The tractor was not equipped with a red light, but on that night, the testimony being that the atmosphere was clear, other than that the taillight blinded him, no reason is suggested by Traylor for not seeing the tractor and avoiding striking it. He must be held in legal contemplation to have seen that which he could and should have seen had he been keeping a proper lookout.

An alternative plea of contributory negligence has been pleaded as a bar to any recovery by plaintiffs. This plea is based on a provision of the state motor vehicle traffic statute, LSA-R.S. 32:296, requiring all vehicles traveling on the highways to be equipped with a red rear light visible for a distance of at least 500 feet. Whether or not this statutory provision was violated--it may be conceded it was--is of no consequence because Traylor under existing circumstances should have observed the tractor and avoided the accident, but did not because he was not maintaining a proper lookout. This factor constituted the efficient intervening cause of the accident and fixes the blame. That the light was white instead of red can only constitute a remote, not a contributory cause and is insufficient to relieve the defendant Traylor of answering for his negligence. See Massaracchia v. Inter-City Express Lines, Inc., La.App. 1935, 162 So. 221; Smith v. Monroe Grocer Co., Ltd., La.App.1938, 179 So. 495; Dowell Inc. v. Bayou State Oil Corp., La.App.1948, 33 So.2d 709; Portier v. Picou, La.App.1941, 3 So.2d 295.

In the trial court Lowrey successfully urged the defense Traylor was not acting within the scope of his authority. Traylor was not a regular employee of Lowrey but was engaged by him as a half-hand or share-cropper upon the Lowrey farm. No regular remuneration or wages were paid by Lowrey to Traylor other than as involved in the share-cropping arrangement. Lowrey testified that he had on occasions directed Traylor to drive his automobile upon certain missions and several of these had occurred on the particular day of the accident. But the record does not justify the inference Traylor was driving the automobile as Lowrey's employee. Definitely he was not an employee, but rather he was a gratuitous bailee whose mission could be and was in the instant case limited by particular and special directions. There is no doubt of the fact that the origin of Traylor's trip away from the Lowrey home was on a mission authorized by Lowrey. The testimony of both Lowrey and Traylor indicated this. Counsel for Lowrey urge, however, that the authorization was restricted to a journey to and return from Hemphill's house for the sole purpose of securing a pint of whiskey upon credit. Lowrey testified that Traylor was directed to immediately return to the Lowrey farm.

Counsel for plaintiffs argue that when Traylor got to the home of Hemphill and discovered that no one was at home, he was faced with these alternatives: return to the defendant Lowrey's farm without the whiskey after driving a number of miles in search thereof; remain at Hemphill's house and await his return, thereby incurring the possibility of arousing the suspicion of local peace officers and jeopardizing his entire mission to obtain whiskey; ride on down the road and return later to the Hemphills to get the whiskey; go elsewhere, as into the Town of Homer, to get the whiskey; or to go off on an independent mission of his own. It is argued that all except the last mentioned of the alternatives would have the effect of placing Traylor at the time of the accident within the scope of his employment.

The argument of counsel is not supported by proof. We do not infer from the record that after leaving Hemphill's Traylor was proceeding to secure whiskey elsewhere. The only relevant testimony indicates the contrary. Thus Herbert Lowrey testified:

'Q. On May 29, 1952, state whether or not you sent Charlie Traylor on a mission for you, what that mission was and where you instructed him to go. A. I sent him up to Mr. Hemphill's. I told him to go up to Mr. Hemphill's and get me a pint of whiskey, and to tell Mr. Hemphill I would see him in passing, and pay him for it.

'Q. Did you give him any authority or instructions to go to any other place other than Mr. Hemphill's? A. I told him to go to Mr. Hemphill's and come right...