Kelly v. Ludlum
| Decision Date | 28 June 1928 |
| Docket Number | 3257 |
| Citation | 9 La.App. 57,118 So. 781 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | KELLY v. LUDLUM |
Rehearing Refused July 14, 1928.
Writ of Certiorari and Review denied by Supreme Court October 2 1928.
Appeal from the Fourth Judicial District Court, Parish of Morehouse.
Action by Benjamin E. Kelly against J. W. Ludlum.
There was judgment for defendant and plaintiff appealed.
Judgment reversed.
J. B Thornhill, of Bastrop, attorney for plaintiff, appellant.
Madison and Madison, of Bastrop, attorneys for defendant, appellee.
Plaintiff, B. E. Kelly, while walking along the highway in the daytime, was struck and injured by an automobile which approached from his rear, and in this action, brought against the owner of the automobile, J. W. Ludlum (who was riding in the automobile, which was at the time being driven by his chauffeur) to recover damages, judgment was rendered rejecting plaintiff's demands, from which he appeals.
The evidence establishes that plaintiff was walking along the right side of the roadway and that the automobile was being driven on the same side in such relative position to that of plaintiff that if each had continued their courses without deviation the automobile would have passed plaintiff by a margin of about one and one-half feet, and that the driver of the automobile sounded the horn as the automobile approached (of which plaintiff did not take any apparent notice and which he claims not to have heard) but did not change the course of the automobile until about the moment of the collision when plaintiff deviated from his course about two feet, thus placing himself in front of the automobile, when the driver of the automobile vainly attempted to avoid striking him by changing its course.
The evidence does not show with certainty the course of plaintiff's deviation, but it shows that he suddenly stepped to his left a distance of about two feet, and that he did so in apprehension of being struck by the automobile, the presence of which he became aware of at that time, either from hearing the horn sounded in close proximity to him or from a warning cry of the person with whom he had been walking along the roadway.
It is conceded, of course, that plaintiff was not negligent in walking along the roadway, and it is, we think, well settled, that he did not have to maintain a lookout for automobiles approaching from his rear (McKenna vs. Lynch, 289 Mo. 16, 233 S.W. 175; Darus vs. West, 179 Wis. 279, 191 N.W. 506; Blashfield, Automobiles, volume 2, page 1057), having the right to assume that the driver of the automobile would exercise care in maintaining a lookout for him, and the sole question is, whether or not the driver did maintain such lookout and exercise ordinary care in operating the automobile.
The statute (section 17, Act 120 of 1921) requires the driver of an automobile approaching a pedestrian who is upon the traveled portion of the highway, shall slow down and give a timely signal, and while the driver of the automobile may in the present instance have literally complied with the statute, the speed at which the car was being driven did not enable the driver to stop instantly and the evidence does not indicate that plaintiff heard the signals or was aware of the approach of the automobile until the moment of the accident.
The driver of the automobile had a clear view of the situation as the car approached plaintiff and there was ample time distance and space for him to have changed the course of the automobile so as to allow a greater margin of safety, and when the plaintiff apparently did not notice the signals given he was bound to realize the hazard of driving the automobile so close to plaintiff due to the fact that plaintiff might deviate from his course or that he might be taken unawares by the sudden discovery of the automobile and make such a deviation as to bring him in front of the...
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