Lawrason v. Richard

• Decision Date: 09 June 1930
• Docket Number: 620
• Citation: 129 So. 250,16 La. App. 434
• Court: Court of Appeal of Louisiana — District of US
• Parties: LAWRASON v. RICHARD

129 So. 250

16 La. App. 434

LAWRASON v. RICHARD

No. 620

Court of Appeals of Louisiana, First Circuit

June 9, 1930

Rehearing Refused June 30, 1930.

Writs of Certiorari and Review Granted by Supreme Court August 7 1930.

Judgment of the Court of Appeal Affirmed May 26, 1931.

Appeal from District Court, Parish of East Baton Rouge. Hon. W. C Jones, Judge.

Action by Sam Mathews Lawrason against Eugene Richard, Jr. J. Wilton Jeansonne, trustee in bankruptcy for defendant, substituted for defendant.

There was judgment for plaintiff, and defendant appealed.

Judgment affirmed.

Daspit Huckabay & Blanche, of Baton Rouge, attorneys for plaintiff, appellee.

Fred G. Benton, of Baton Rouge, C. W. Kernan, of Baton Rouge, Bond, Curtis & Hall, of New Orleans, and Porterie & Bordelon, of Marksville, attorneys for defendant, appellant.

OPINION

ELLIOTT, J.

An automobile belonging to, and while being driven by, Eugene Richard, Jr., and in which Sam Mathews Lawrason was riding, struck against the western end of the bridge which spans the Comite river on the Greenwell Springs road leading out of Baton Rouge, with the result that said Lawrason was badly injured. He claims of the defendant, Richard, the sum of $ 15,000 as damages on account of his said injuries. The plaintiff, Lawrason, alleges:

That he was riding in the car as the guest of said Richard. That the accident occurred at about 1 o'clock p. m. at night. That the night was dark and rainy, the road and bridge slippery.

That the collision was due to the excessive and reckless speed at which the defendant was driving under said conditions.

"That the crash of said automobile into the railing of said bridge and the resulting injuries to your petitioner were due to no fault, carelessness or negligence of your petitioner, but the same are and were due solely and entirely to the gross fault, carelessness and negligence of the defendant who was operating his car at a dangerous and excessive rate of speed, on a dark rainy night on a road with which he was not familiar."

"That defendant was careless and negligent in driving at a dangerous and excessive rate of speed on a dark and rainy night."

"That defendant was careless and negligent in failing to keep his car under control and in failing to drive it at a moderate rate of speed, so as to enable him to stop the car in an emergency."

There was judgment in the lower court in favor of plaintiff for $ 12,000. Defendant has appealed.

The judgment appealed from was signed on January 6, 1930. This appeal was taken January 7, 1930. When the appeal was called in this court on March 3, 1930, it was represented to the court by J. Wilton Jeansonne, that on January 17, 1930, the defendant, Richard, had been adjudged a bankrupt, and that he, said Jeansonne, having been elected trustee of the said Richard in bankruptcy, had qualified as such, and should be substituted as defendant and appellant in the place of said Richard.

The showing appearing to be sufficient, and, no opposition having been made thereto, said Jeansonne was recognized as trustee of the estate of said Richard, and as such substituted as defendant and appellant in his place. The defendant, Richard, who is now represented by said trustee, urged several defenses.

Defendant admits that plaintiff was riding in his car, but contends that it was as a self-invited guest or guest by sufferance; that defendant did not willfully injure him, and is therefore not liable in damages.

Our examination of the evidence on this subject leads us to the conclusion that plaintiff was riding in the car as the guest of said Richard and at said Richard's invitation, tacitly or expressly given. And, having found that plaintiff was the guest of said Richard, the difference which exists on the subject of liability for negligence and recklessness in driving, when the party injured is a guest of the driver, or a self-invited guest, or a guest by sufferance, is not a question which requires consideration. For the reason stated, the authorities cited by defendant on that subject are not applicable to the situation.

Another defense is that the defendant Richard, was not familiar with the road; that the occupants of the car riding with him were familiar with it; that he therefore looked to them to warn him of danger; that he received no warning, except from Eddie Carriere, who merely said to him, "You had better be careful, this is bad," etc., which he took to have reference to a bad stretch of road.

Eddie Carriere testifies that he warned Richard that there was a bridge ahead, that he did not know where it was, but to slow down. He says that defendant did make an effort to slow down, but at that time the bridge was on them.

J. V. Sims says:

"Q. Did any one ask him not to drive so fast or was he warned in any way about driving fast?

"A. Yes, I warned him two or three times and Carriere, I think, warned him.

"Q. What did you warn him about?

"A. I just told him that the road was slippery or something to that effect, I don't remember the exact words,--that the road was slippery and he had better not go so fast; that it was dangerous.

"Q. You told him that?

"A. Yes."

Henry Rightor says:

"Q. Did you hear anybody warn him about driving too fast?

"A. Yes, I heard two people.

"Q. Who made that statement, Carriere and Sims? Do you know what Carriere said?

"A. I could not quote him, but I remember his telling him not to drive so fast, and warning him about a bridge being ahead.

"Q. About a bridge?

"A. Yes.

"Q. What did Sims say, if you know, not the exact language, but what the import of it was?

"A. He told him not to go so fast, that it was so wet that night he was liable to skid. I could not quote his words.

"Q. And you heard him warn him not to drive so fast?

"A. Yes."

Witness further says that he could not say at what point Carriere spoke of the bridge, but that the bridge was reached in a comparatively short time afterwards. Defendant, testifying on this subject, at one place says:

"Q. Do you know how far you were from the bridge when you started to slow down?

"A. Well, I should say probably 25 or 30 feet. That is my judgment, I don't know positively."

In another place he says:

"Q. It was testified by Mr. Carriere that he said that, and that you immediately made an effort to check the car. Is that correct?

"A. Yes.

"Q. Did you delay an instant after you received this warning, in making an attempt to bring your car to a stop?

"A. No."

Carriere had not said that Richard, upon being warned by him that there was a bridge ahead and to slow down, made an immediate effort to check his car. His testimony was that Richard made an effort to slow down, but that at the time he did so the bridge was on them. Just how long it was after the warning before the effort was made is a matter as to which the evidence does not say, but our inference from Carriere's statement is that the effort to slow down did not follow immediately after the warning; that Richard acted on the warning rather leisurely; that his compliance was somewhat tardy; and that, when he did act, the bridge was on them, and it was too late.

Defendant was driving 40 or 45 miles an hour. At 40 miles an hour the car went a mile in 90 seconds. Ninety seconds is a short space of time. If Richard, after getting within 150 feet of the curve, had made proper effort to slow down, he could have gotten his car under control sufficient to make the turn and enter the bridge with safety. We are satisfied that he was requested more than once by Sims to drive slower, warned that it was dangerous to drive so fast, and that he did not heed the warning.

It is our understanding that the Green-well Springs road is a state highway. The Act 296 of 1928, sec. 4, prohibits driving upon a highway carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger any person or property, etc.

Section 5, paragraph (a), provides that:

"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.

"(b) Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver of a vehicle to drive at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful."

The following rates are then specified:

"Fifteen miles an hour in traversing or going around curves * * * when the driver's view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding. * * *

"Forty-five miles an hour under all other conditions."

The evidence shows that, when the Greenwell Springs road reaches the Comite river, it turns in a short sharp curve to the left into the bridge which spans the river at that place. The bridge is only about half as wide as the road. This fact increases the danger; the sharp curve into the narrow bridge requiring automobiles approaching from Baton Rouge to slow down so as to make the curve and enter the bridge safely. The evidence shows that it cannot be done in the daytime driving faster than 20 miles an hour. A witness living near by the bridge, and familiar with the place, says that one not familiar with the road cannot, in the nighttime, driving 20 miles an hour, make the curve and enter the bridge...