Lind v. Aetna Casualty and Surety Company

• Decision Date: 15 March 1967
• Docket Number: No. 22440.,22440.
• Citation: 374 F.2d 377
• Parties: Mrs. Camille F. LIND, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

374 F.2d 377 (1967)

Mrs. Camille F. LIND, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.

No. 22440.

United States Court of Appeals Fifth Circuit.

March 15, 1967.

Herman M. Schroeder, Hattier, Schroeder & Kuntz, New Orleans, La., for appellant.

Henry B. Alsobrook, Jr., and Joel L. Borrello, of Adams & Reese, New Orleans, La., for appellee.

Before RIVES, THORNBERRY and AINSWORTH, Circuit Judges.

RIVES, Circuit Judge:

In this diversity personal injury suit growing out of an automobile accident in which the jury verdict was adverse to plaintiff, the question for decision is whether the trial judge properly instructed the jury on the law applicable to the issues of negligence involved in the case.

The accidental injury grew out of an intersectional collision in the City of New Orleans in which Mrs. Lind, plaintiff-appellant, was riding as a guest passenger in an automobile owned and operated by her husband which was proceeding up Baronne Street, a through street, and was involved in a collision at Melpomene Street with an automobile of the assured of defendant Aetna. There is a traffic stop sign to traffic on Melpomene Street at the Baronne Street intersection.

Appellant contends that the court erred in refusing to grant any of the thirteen special charges which were submitted to the court by her for instruction to the jury on the applicable Louisiana law. She also assigns as error the court's giving of a charge on unavoidable accident and contends that the written interrogatories submitted by the court to the jury were inconsistent and confusing. On the other hand, appellee responds that the court's charge was sufficient since it covered the general issues of negligence, proximate cause, preponderance of evidence, weight of evidence, measure of damages, and unavoidable accident. Appellee further contends that the court's refusal to give appellant's special charges was correct because the facts and circumstances of the case did not justify such instructions.

The Lind vehicle was being operated up Baronne Street by plaintiff's husband. Baronne is a four-lane, one-way, through street. Appellee's assured, Lyman E. Gaude, was proceeding on a cross-town street, Melpomene, and apparently had stopped for the stop sign and thence proceeded into Baronne Street where his view of traffic was blocked by a panel truck parked at the corner on the Baronne Street side nearest him. He saw the approaching Lind vehicle and attempted to accelerate to cross the intersection when his automobile sputtered and seeing that he could not clear the intersection in time, he stopped, at which time the automobile driven by Mr. Lind swerved to the right to avoid the Gaude vehicle but collided with the right front side. Mrs. Lind was injured in the collision. The jury's verdict, answering the special interrogatories, was that neither driver was negligent and that the collision was solely the result of an unavoidable accident. No explanation is found in the record as to the reason for the trial judge declining to grant any of the thirteen special charges requested by plaintiff. However, defendant-appellee states that such charges would have been improperly given because instructions relative to intersectional collisions and the duty of drivers therein under the law of Louisiana were unnecessary, the facts indicating, appellee contends, that Mr. Gaude would have made it across the street had not his car sputtered; that he knew that the other street was superior to him; and that he did stop at the stop sign and could have safely made it across the street had his car not sputtered. Therefore, appellee contends, special charges on Louisiana law of automobiles, such as those relative to pre-emption of intersection or the rights of traffic on a favored street as opposed to a less favored street with a stop sign, were unwarranted because of the mechanical difficulty experienced by Mr. Gaude in his car.

The record does not indicate why Mr. Gaude's automobile sputtered or that there was any mechanical imperfection or difficulty with his car. The dictionary definition of "sputtered" is not that the engine ceased running. Sputtered means "to make explosive or popping sounds in a spasmodic manner often with sparks or bursts of flame," such as "the car sputtered down the road," but this does not indicate that the motor "killed," to use the vernacular. See Webster's Third New International Dictionary (1961). The testimony shows that Mr. Gaude, on being cross-examined about his car having sputtered, when asked if this was the only time that it had sputtered, said, "At that particular emergency, I guess I mashed the accelerator harder than I ordinarily do." The record also indicates that evidence was produced by plaintiff...