Kientz v. Charles Dennery, Inc.

• Decision Date: 10 December 1945
• Docket Number: 37562.
• Citation: 209 La. 144,24 So.2d 292
• Court: Louisiana Supreme Court
• Parties: KIENTZ v. CHARLES DENNERY, Inc. In re CHARLES DENNERY, Inc.

24 So.2d 292

209 La. 144

KIENTZ v. CHARLES DENNERY, Inc.

In re CHARLES DENNERY, Inc.

No. 37562.

Supreme Court of Louisiana

December 10, 1945

Edward Rightor and W. H. Sellers, both of New Orleans, for appellant.

St. Clair Adams & Son and P. A. Bienvenu, all of New Orleans, for respondent.

ROGERS Justice.

This is a suit for damages growing out of a collision between an automobile owned and driven by Louis Kientz and a truck owned by Charles Dennery, Inc., and driven by one of its employees. Mrs. Virginia Culotta Kientz, wife of Louis Kientz, who was in a passenger automobile driven by her husband, obtained a judgment in the First City Court of New Orleans for personal injuries sustained by her in the collision. The judgment was affirmed by the Court of Appeal for the Parish of Orleans one judge dissenting. 17 So.2d 506. Certiorari has brought the case here.

The accident occurred at about 6 o'clock in the evening of December 29th, 1942, at the corner of Carrollton Avenue and Banks Street in the City of New Orleans. Banks Street has two driveways, each 28 feet wide, separated by a neutral ground 8 1/2 feet in width. Carrollton Avenue also has two driveways each 36 feet wide, separated by a neutral ground 38 feet in width. There is a light at the corner for the purpose of controlling traffic.

The automobile of plaintiff's husband in which she was a passenger was proceeding towards Canal Street on Carrollton Avenue, and defendant's truck, driven by its employee was crossing Carrollton Avenue on Banks Street proceeding in the direction of the business center of the city. The traffic light admittedly was defective in that the red or 'stop' signal was not showing for traffic moving on Carrollton Avenue. It was, however, in good order so far as showing the green or 'go' signal for traffic operating along Banks Street. The collision occurred when defendant's truck, which was being operated on a green light and at slow speed, had crossed the first roadway of Carrollton Avenue, had passed beyond the neutral ground and had entered the other roadway, was struck on its right side and turned over by the automobile in which plaintiff was riding and which was driven by her husband at a speed of about 25 or 30 miles an hour.

The record discloses, and in fact it is not seriously disputed, that Mr Kientz was guilty of negligence, but his negligence can not be imputed to plaintiff, his wife. And if the negligence of defendant's driver contributed to the accident, she is entitled to a recovery against defendant.

It is admitted that defendant's driver was proceeding on a favorable light after looking to his left for traffic traveling in the upper roadway and to his right for traffic traveling in the lower roadway of Carrollton Avenue, but because he did not look again before negotiating the crossing, the Court of Appeal holds that he was guilty of negligence, on the theory that if he had looked to his right before entering the lower roadway, he would have realized that Kientz did not intend to stop and that his speed was such that he could not stop.

The driver of defendant's truck testified that he did not look to the right or in the direction from which the automobile driven by plaintiff's husband was approaching, because he assumed that the driver of any motor vehicle approaching from that direction would stop for the red light. He stated he was looking ahead to ascertain if pedestrains were crossing Banks Street on the lower side of Carrollton Avenue as he considered it was his duty to do.

The question for decision is whether, on the facts shown by the record, defendant's driver when entering the lower roadway of Carrollton Avenue was guilty of contributory negligence in not looking to the right or in the direction of the approaching automobile in which plaintiff was riding.

In deciding this case, the Court of Appeal apparently followed its decision in Thomas v. Roberts, 144 So. 70, holding that a motorist who enters an intersection on a favorable light without looking for approaching vehicles and is struck by another vehicle entering the intersection at an excessive speed against a red light is guilty of contributory negligence. But in the case of Fitzpatrick v. New Orleans Public Service Company, 22 So.2d 473, whish involved an intersectional collision, where counsel for the defendants relied on the decisions in this and the Thomas cases and also in the case of Seiner v. Toye Brothers Yellow Cab Company, 18 So.2d 189, the Court of Appeal pointed out that in each of those cases the Court found that there were exceptional circumstances that required the driver of the motor vehicle approaching the intersection favored with a green light to exercise some degree of caution, and that if, by the slightest degree of care, the driver could have seen and appreciated the danger, his failure to look constituted contributory negligence.

In the Fitzpatrick case, the Court of Appeal for the Parish of Orleans held that a motorist in approaching a street intersection favored by a green light could assume that a street car by which he was struck would be brought to a stop and that as a matter of law he was not guilty of contributory negligence in entering the intersection without looking to see that no other vehicle was about to enter against a red light, where even if he had looked there was nothing to indicate that the motorman did not intend...