Law v. Osterland
| Decision Date | 30 June 1941 |
| Docket Number | 36181. |
| Court | Louisiana Supreme Court |
| Parties | LAW v. OSTERLAND et al. |
Rehearing Denied July 18, 1941.
Lewis & Lewis, of Opelousas, for appelicant.
Vinson M. Mouser, of Columbia, for respondents.
Plaintiff was struck and knocked down on the main street of the Town of Olla by an automobile owned and operated by A. J. Osterland. She was badly injured and brought this suit against Osterland and his insurer for damages resulting from the injury. There was judgment in the lower court in favor of plaintiff and against the defendants in solido for $10,000 and all costs. Defendants appealed to the Court of Appeal Second Circuit, which court affirmed the judgment. 3 So.2d 674. Defendants applied to this court for writs, which were granted, and the case is now before us for review.
The Court of Appeal reviewed the testimony in detail and at length, and concluded that plaintiff was guilty of gross negligence in attempting to cross the street as she did and that her negligence continued up to the moment of the accident. The court also reached the conclusion that Osterland, the driver of the car, was guilty of gross negligence in the operation of his vehicle. But is found as a fact that Osterland saw the plaintiff walking on the street in front of him in time to have avoided the accident if he had used proper care and precautions after seeing plaintiff in her position of peril or that he could have seen her if he had been looking ahead as he should. Osterland and his insurer were held liable under the last clear chance doctrine.
The main point stressed by counsel for defendants, both in oral argument and in their original and supplemental briefs, is that, under the facts and circumstances found by both the trial court and the Court of Appeal, there is no room here for the application of the last clear chance doctrine. Counsel for plaintiff takes the view that the doctrine is applicable. In oral argument and in brief, counsel for plaintiff advanced the theory that the Court of Appeal erred in holding that plaintiff was guilty of negligence. His contention is that she was guilty of no negligence at all.
When the case was argued orally before this court, counsel for defendants expressed surprise that plaintiff's counsel should advance the theory that his client was not guilty of negligence, especially in view of the fact that the Court of Appeal had definitely determined that she was negligent. They asked for time in which to file a supplemental brief, which was granted, and their brief is now before us.
The entire record, including a transcript of the evidence, was sent up and is now before us. Counsel for defendants suggest that it is not the function of this court to examine the evidence when a case of this kind is brought up for review. But, when a case is ordered up, we consider all points involved as we do in cases brought before us on appeal.
After a most careful examination of the testimony, we have reached the conclusion, and we hold, that the plaintiff was not negligent in attempting to cross the street as she did. But we find, as did the district court and the Court of Appeal, that Osterland, the driver of the car, was grossly negligent and that the accident was due entirely to his negligence.
There is but little dispute as to the facts and circumstances relating to, and connected with, the traffic accident which caused plaintiff's injury. While attempting to walk across Front Street in the Town of Olla, Mrs. Law, the plaintiff, who is 38 years of age, was struck and knocked down by the authomobile owned and operated by A. J. Osterland. Front Street runs north and south, and is interescted at right angles by Pine Street. Front Street is 62 feet wide, and the main highway from Monroe to Alexandria, Louisiana, runs through and on the eastern edge of it. That part of the street referred to as the 'main highway' is 20 feet wide and is paved. A painted traffic line, or stripe, runs through the center of the pavement. That portion of the pavement on the west side of the traffic stripe is the lane for vehicles going south, and that on the east side of it is for vehicles going north.
That portion of the street from the curb or sidewalk on the western edge to the pavement is 42 feet wide and is surfaced with 'black-top'. The distance, therefore, from the curb or sidewalk on the west edge of Front Street to the stripe in the center of the pavement is approximately 52 feet. Pine Street, which intersects Front Street at right angles, is approximately 40 feet wide.
The Olla Mercantile Company's store building is at the northwest corner of the intersection, and the Olla State Bank building is at the southwest corner. These buildings face Front Street. The plaintiff lives west of, and some distance from, Front Street. She left her home early in the evening, but after dark, intending to attend services at a church situated some distance east of Front Street. She walked in an easterly direction until she reached Front Street at the corner of the Olla Mercantile building. She then walked south across Pine Street along the west edge of Front Street in the direction of the Olla Bank building until she reached a point a few feet south of the center of Pine Street. She then turned left and walked in a southeasterly direction diagonally across Front Street until she reached a point near the stripe in the center of the pavement, where she was struck and knocked down by the Osterland car, which was going south toward Alexandria.
As to the precautions which plaintiff took to avoid an accident, she said:
Plaintiff's mother testified that her daughter told her that 'she looked both ways to see if a car was coming and that if she had seen it she was sure that she could make it across if she saw it; if she saw it she was confident she could make it across'. Plaintiff testified on cross-examination that she did not see the Osterland car approaching from the north until it was a few feet from her, and testified further that her view of the street both ways was unobstructed.
Plaintiff's testimony as a whole makes it perfectly clear that she understood and realized the danger of attempting to walk across Front Street, which is a prominent and much travelled thoroughfare, and that she knew that it was her duty to take proper precautions before entering the street.
The argument for defendants is that either the plaintiff did not take proper precautions by looking and listening before she entered the street, or, if she took the proper precautions before entering the street, her attempt to cross the street under the circumstances amounted to the grossest kind of negligence. In other words, counsel's contention, as stated in their original brief, is that plaintiff 'was hurrying to church some distance away across the railroad tracks, and that she did see the Osterland car approaching from a distance; and, instead of hesitating her course or stopping abruptly, she plunged across the street with the idea in mind of beating the Osterland car across the intersection'.
Plaintiff repeatedly stated in the course of her testimony that, if she saw the car or its lights, she thought she had time to cross the street with safety. The argument for defendant is that, accepting her testimony as true, she was mistaken in her calculations as to the time it would take her to walk across the street and as to the time it would take the Osterland car to reach the point where she entered, and that she must suffer the consequences of her own mistake.
According to the view which we take, the plaintiff was not careless or imprudent in entering the street...
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