Joynes v. Toye Bros. Auto & Taxicab Co., Inc.

• Decision Date: 13 August 1928
• Docket Number: 11,268
• Citation: 119 So. 446,11 La.App. 124
• Parties: JOYNES v. TOYE BROS. AUTO & TAXICAB CO., INC
• Court: Court of Appeal of Louisiana — District of US

119 So. 446

11 La.App. 124

JOYNES v. TOYE BROS. AUTO & TAXICAB CO., INC

No. 11,268

Court of Appeals of Louisiana, Orleans

August 13, 1928

Rehearing Refused October 15, 1928.

Appeal from Civil District Court, Parish of Orleans, Division "B." Hon. Mark M. Boatner, Judge.

Action by Mrs. Solen F. Joynes against the Toye Bros. Auto & Taxicab Company, Incorporated.

There was judgment for plaintiff and defendant appealed.

Judgment amended and affirmed.

Henry W. Robinson, of New Orleans, attorney for plaintiff appellee.

David Sessler and Gordon Boswell, of New Orleans, attorneys for defendant, appellant.

OPINION

CLAIBORNE J.

This is a damage suit for physical injury.

The plaintiff alleged that on July 17, 1926, at 1:30 p. m., plaintiff and her husband were standing on the downtown lake side corner of Poydras and Baronne streets preparing to cross Baronne street on the downtown side of Poydras street going towards the river, waiting for the up traffic to pass in accordance with the traffic light signals; that when the red light signals flashed across Baronne street as a signal to vehicular traffic on that street to stop, and when the green light flashed across Poydras street as a signal to traffic on that street to move along the traffic officer beckoned to plaintiff to cross; that she started to cross Baronne street, and had proceeded a foot or two beyond the middle of the roadway, when a yellow cab of the defendant company, which had been driving up Baronne street, dashed up and into the Poydras street intersection; when the chauffeur realized that he had violated the traffic law by attempting to cross the intersection after the red light or stop signal had been flashed, he backed down the Baronne street intersection of Poydras street at a violent rate of speed without giving any signal, and struck plaintiff and knocked her down; that she was struck in the right hip and the head; that the blow bruised her body, arms and legs, and dislocated one of the vertebral joints at the lower end of the spinal column, causing her much pain; that she was taken for a day to the Charity Hospital, thence removed to the Baptist Hospital, where she continued unconscious for more than a day, and where she was still confined as a patient; that she still suffers from spells of nausea after every meal, and is in a condition of extreme nervousness--for all of which she claims $ 20,000 damages.

The defendant denied each and every allegation of plaintiff's petition.

In a supplemental answer the defendants alleged:

"That at the time alleged, namely, on or about July 17, 1926, its Yellow Cab No. 147, operated by its employee, in the scope of his employment, was proceeding up Baronne street, on the right hand side of said street, in a proper manner and at a reasonable and moderate speed; and so driven, approached its intersection with Poydras street, whereupon respondent's said driver noted that the traffic signal, namely, a hand manipulated semaphore located on the down town river corner of the intersection, showed green or the 'go' signal for him to continue on up Baronne street and across Poydras street.

"2. That no pedestrians were then crossing Baronne street at the lower or downtown side of Poydras street and he proceeded onward as aforesaid and into the intersection, and had almost crossed over the intersection when a police officer stationed at and handling control of the aforementioned semaphore suddenly yelled to the driver to stop his cab.

"3. That in response to this peremptory order of the officer, the driver immediately applied the brakes and the cab forthwith stopped with the loud screaking of the brakes usual to the sudden stopping of a taxicab.

"4. That the driver turned his head to the left and looked at the officer, who was gesticulating with one hand and pointing to the semaphore with the other, and that the driver saw that the semaphore had been turned to red, or stop signal, after he had entered the intersection and was proceeding across street, or coincident with his having done so.

"5. That this said change of the semaphore had been suddenly made without any signal by bell, whistle, or otherwise, and without the usual and customary interval between the signal of the intention to turn the semaphore and the actual turning of the semaphore.

"6. That after the cab was stopped, as aforementioned, in response to the orders of the police officer, the said officer did peremptorily order and command the driver to reverse his course, namely, back across the intersection; and in obedience to the said order and command of the officer, the driver did forthwith back his cab along the course and in the manner that the said officer did designate and order.

"7. That the driver did so back his cab in a careful and prudent manner and at a slow speed, all in accordance with the order and signals of the officer, who continued to beckon him backward; and that the driver relied on the main on the said signals, though he was also looking every moment or two as best he could, to see that no pedestrian or vehicle was in the street or about the place he was backing over.

"8. That he so backed across Poydras street, a distance of some 35 to 50 feet, during which time the officer continued to beckon and signal to him to continue; and that when the rear of his cab was at or about the downtown curb of Poydras street some one yelled to him that a lady had fallen down in the street to the rear of the cab, and he forthwith applied the brakes and brought the cab to an immediate stop.

"9. That for want of information sufficient to justify belief, respondent denies that the cab backed into or collided with the plaintiff; and says that if the cab struck plaintiff, as is alleged in the petition, then the accident resulted from no fault of respondent's driver, who was backing and steering the cab under orders of the said officer, and in the manner he designated by and through his continuous signals; and notwithstanding that respondent's driver was also keeping a lookout, as best he could, he relied on the signals of the officer, which he had a right to do and was obliged by law to do, which said officer was in a better position to see that plaintiff and other pedestrians did not walk or stand in the course of the backing cab.

"10. That the cab was so backing in plain view and with the noise usual to a taxicab motor in reverse gear, and that had plaintiff looked and listened as a careful and prudent person would and should have done when walking across or standing in the driveway of a much traveled thoroughfare such as is Baronne street she would have heard and seen the cab, as it slowly backed towards her, in ample time to have avoided placing herself in its course, and in ample time to have gotten out of the way, all of which plaintiff failed to do, and that her failure to have looked and listened and to have avoided the accident was carelessness and fault that caused, or proximately contributed to the accident.

"11. That while the cab was backing, as aforesaid no other vehicles were crossing or preparing to cross the intersection via Poydras or Baronne streets; that there was no reason whatever for ordering or compelling the cab to back across the intersection and that in so ordering and compelling the driver to so back across the intersection the police officer acted in an unreasonable and arbitrary manner and but for his unwarranted actions and continuous signals to the driver, the accident would not have occurred."

The case was tried before a jury, who returned a verdict of $ 10,000 in favor of plaintiff, confirmed by a judgment.

Defendants have appealed.

Our attention is first directed to an objection to testimony made by defendant and overruled.

Thomas J. Burns, the defendant's chauffeur at the time of the accident, as a witness for defendant was asked by plaintiff's counsel:

"Q. Were you the Thomas Burns who pleaded guilty in the Criminal District Court on June 18, 1923, on the charge of gambling?"

To which question defendant's counsel objected on the ground that it was irrelevant and immaterial. Being asked the purpose of the question, plaintiff's counsel answered that it was to prove that the witness was "an improper and incompetent person to drive an automobile"; that he proposed to prove by the criminal court's record a story of utter incompetency. The trial court overruled the objection. It was understood that defendant's objection would apply to all such testimony.

The witness was then asked whether he had not been charged with loitering on divers occasions, whether he had been arrested and charged with being a...