Lipscomb v. Standard Highway Co., Inc

• Decision Date: 10 October 1929
• Docket Number: 508
• Citation: 124 So. 156,11 La.App. 508
• Court: Court of Appeal of Louisiana — District of US
• Parties: LIPSCOMB v. STANDARD HIGHWAY CO., INC

124 So. 156

LIPSCOMB v. STANDARD HIGHWAY CO., INC

11 La.App. 508

No. 508

Court of Appeals of Louisiana, First Circuit

October 10, 1929

Appeal from the District Court, Parish of Tangipahoa. Hon. N. B Tycer, Judge.

Action by Frank Lipscomb against Standard Highway Co., Inc.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

Robt. M. McGehee, of Hammond, attorney for plaintiff, appellant.

Rownd &amp Warner, of Hammond, attorneys for defendant, appellee.

ELLIOTT J. MOUTON, J., not participating.

OPINION

ELLIOTT, J.

Frank Lipscomb, while driving an automobile west on East Thomas street in the city of Hammond, La., state highway No. 190, was badly injured in a collision with a log wagon, being drawn by four mules, belonging to Standard Highway Company, Inc., and driven by Jim Aikens, its employee. The collision occurred at about 8 o'clock p. m. on July 18, 1928.

The plaintiff alleges: That he approached the rear of an automobile, going west, the direction in which he was going. That he signaled with his horn to pass, and, as he turned to the left to do so, there approached a double mule team hitched to a large heavy wagon driven in an eastern direction. That, while he was in the act of going around the car traveling in the same direction as himself, the wagon hit the front end of his car, driving the wagon tongue through the radiator, engine, and about 6 inches inside through the floor boards, demolishing his car, striking and rendering him unconscious, etc.

That the place was dark where the accident happened, being surrounded on one side by a pine thicket and by a large oak and pecan tree on the other. That had it not been for the dark place and the fact that he was engaged in making a curve around the car he was passing, the approaching vehicle would have been shown to him by the lights on his own car.

That the laws of the state and the city ordinance of Hammond require that all animal drawn vehicles using the streets and highway must be equipped with lights on the left-hand side of the vehicle, of such visibility as to be seen at least 300 feet either in front or behind.

That defendant was operating its said vehicle on said street and highway without a light, and in so doing was negligently violating said ordinance of the city and law of the state. That his injuries and damages were caused solely and entirely by the negligence, carelessness, and want of precaution on the part of the defendant. That he did not in any way contribute thereto.

He claims of the defendant $ 10,214 in damages on said account, of which amount $ 450, is for the loss of his automobile.

Defendant denies the negligence and carelessness alleged against it. Denies that it was the cause of plaintiff's injuries, denies responsibility therefor, and alleges that the accident was caused solely by the gross fault, carelessness, and recklessness of the plaintiff.

It further avers that its wagon did not run into plaintiff's car; that plaintiff's car ran into its wagon; that one of its mules was killed in the collision; and that it suffered a loss of $ 265 on account of same.

It prayed for the rejection of plaintiff's demand and for judgment against the plaintiff in reconvention for $ 265.

The lower court for written reasons held that defendant was negligent, but that the accident was caused by the contributory negligence of the defendant, and rendered judgment rejecting the demand of both parties.

The plaintiff appealed.

Plaintiff's brief in support of his demand cites many authorities, and contains a diagram which purports to show the course of plaintiff's car, and that of defendant's wagon, just previous to the accident, and their positions in the street at the moment of the impact.

No brief has been filed by defendant.

The evidence shows that defendant's wagon and mule team was being driven on the public street and highway mentioned without a light. If there is an ordinance of the city of Hammond on the subject, it was not offered in evidence. The state law, Act No. 232 of 1926, sec. 5, provides:

"All animal drawn vehicles, using the highways of this state, shall display a white light on the left hand side of the vehicle, so as to be plainly visible a distance of 300 feet from the front and rear of such vehicle."

Defendant was therefore committing a negligent violation of this law.

The question in the case is whether the plaintiff was at fault, negligent and reckless, as alleged by defendant, and whether his fault, negligence and reckless act contributed to bring about the collision and his own injury.

The defendant does not allege contributory negligence on the part of the plaintiff in express terms, but does charge explicitly that the plaintiff's fault, negligence, and recklessness was the sole cause of the accident, and prays that his suit against it be dismissed. This, in our opinion, includes the question of contributory fault, negligence, and recklessness on the part of the plaintiff.

The plaintiff's version of the occurrence is as follows:

"I was going in on East Thomas street in a westerly direction and fell in behind a car right ahead of me, and in so doing I turned to my left and blew my horn. As I did, I saw this object ahead of me, a wagon with a team. I applied the brakes and that is all I can remember."

That he was traveling between 12 and 15 miles an hour at the time.

Speaking of the occurrence later, he says:

"When I fell in behind the car and blew my horn to give the signal that I wanted to pass, I didn't see the object until then, then I saw this object right ahead of me and I applied the brakes as quick as possible, but it was too late, I was just right on him."

Cross-examined:

"Q. Did you pass that car?

"A. No, I never did pass it.

"Q. You testified a few minutes ago that you passed it?

"A. I went to pass it, I blew to pass.

"Q. You blew to pass it?

"A. But I never did pass it.

"Q. How fast were you going?

"A. Well, 12 or between 12 and 15 miles an hour."

He further testifies that he was not more than 15 or 20 feet from the mules when he first saw them; that the wagon ran into him; that the Day car at which he had blown to pass was about 15 or 20 feet ahead of him at the time of the collision, on his right; that the headlights on his own car were burning bright; that he could see about 35 feet ahead under the headlights of his own car.

"Q. Why didn't you see the mule team before you got within 15 feet of them?

"A. I was behind this car and the lights didn't go that way. I couldn't see them for this car.

"Q. But didn't you pull over to the left?

"A. When I went to pass.

"Q. He was only 10 or 15 feet in front of you before you pulled over to the left?

"A. Yes, sir.

"Q. Is that correct?

"A. Yes, sir.

"Q. And as soon as you pulled over to the left you hit the wagon?

"A. Yes, sir.

"Q. And you were only going 12 miles an hour?

"A. 12 miles. Between 12 and 15 miles an hour."

The wagon was an 8-wheeled log wagon, being pulled by four mules working in pairs, two in the lead and two under the tongue. The driver, Jim Aikens, was riding the tongue mule on the right-hand side. The car at which plaintiff had blown was being driven by Collins Day, accompanied by his wife.

Mr. Day, witness for plaintiff, testifies that Mr. Lipscomb blew his horn, and that he pulled over to the right-hand side of the road to let him pass; that he (Day) had already passed the mules at the time, and just as Lipscomb turned to the left the collision occurred. He estimated that he had gone about 25 or 30 feet when he heard the crash.

On cross-examination:

He repeated that Lipscomb did not pass him at all; that about 20 feet was the nearest that Lipscomb got to him.

"Q. You state that you pulled over to the right-hand side. At the time you pulled over did you see the mules?

"A. I had already passed them when I pulled over.

"Q. Did you have any trouble seeing the mules?

"A. No, sir, not at all. You could have heard them clear down the street, the mules with the wagon like that, four mules on the pavement, that way or on the ground either, you could have heard them."

Asked if there was room between his car and the wagon for another car, and he replied in the affirmative.

Asked how far Mr. Lipscomb's car was behind him when the impact occurred, and he said he did not know exactly; that he heard the horn and pulled over, and then, just a second after, he heard the crash; that he had gone 25 or 30 feet after hearing plaintiff's horn and passing the team, before the sound of the hitting.

Asked again, when meeting the wagon, if he had any trouble in seeing it with his light, and he answered that he did not have any trouble seeing them; that you could hear them a good while before you saw them. You could hear them for a block; that the mules were walking at the time.

Mrs. Day, witness for plaintiff, was in the car with her husband. She testifies that, when Mr. Lipscomb blew, they thought he was blowing for them. Asked to tell what happened, and she said that they heard the horn and drew to the side of the road for the car to pass; that they had passed the wagon, and just about that time they heard them crash together.

"Q. Did you pull over from the sound of the horn before you passed the wagon or after?

"A. It was a little after we passed the wagon."

Cross-examined:

"Q. You noticed the wagon when you passed?

"A. Yes, sir."

Jim Aikens, the negro driver of defendant's wagon, testifies that he met and passed the Day car; that, after passing it a distance of about the width of the street, he was run into by the plaintiff; that he first noticed the lights of plaintiff's car about 100 feet ahead of him coming forward in a zig-zag course.

The plaintiff...