Lynch v. Fisher

Citation34 So.2d 513
Decision Date27 March 1947
Docket Number7021.
CourtCourt of Appeal of Louisiana — District of US
PartiesLYNCH v. FISHER et al.

On Rehearing April 1, 1948.

Foster Hall & Smith, of Shreveport, for appellant.

Browne Browne & Bodenheimer, of Shreveport, and R. S. Williams of Mansfield, for appellees.

HARDY, Judge.

This matter comes before us on appeal from judgment of the Eleventh Judicial District Court of Louisiana sustaining exceptions of no cause or right of action filed on begalf of all defendants and dismissing plaintiff's action as of nonsuit.

The allegations of the petition which are placed at issue as to their sufficiency is setting forth the cause of action in the exceptions referred to, and which set forth the facts upon which plaintiff's action is based, may be summarized as follows:

That about 9:00 p. m. on July 3, 1945, an employee of the defendants Wheless and Fisher, (whose insurer is the defendant, Lumbermen's Mutual Casualty Company of Chicago, Ill.) at the time engaged within the general scope and course of his employment, parked a pulpwood truck which he was driving on the right-hand side of highway No. 171, some twelve miles north of Mansfield, De Soto Parish, Louisiana;

That, while said truck was thus parked, a passenger car owned and driven by the defendant, Robert Joe Gunter, collided violently with the rear end thereof;

That the driver of the parked truck was guilty of negligence, imputable to his employers, on numerous grounds, specifically in parking the truck entirely on the highway without leaving a clearance of fifteen feet on the pavement; in failing to have warning lights on the parked truck; in leaving the truck parked on the highway, thereby constituting a menace to traffic, and in failing to set out flares, or to have same available and ready for service.

That the negligence of the defendant, Robert Joe Gunter consisted of driving and operating his automobile at an excessive, unreasonable and unlawful rate of speed; in failing to keep and maintain a proper lookout; operating his vehicle without adequate brakes; and failing to take any action to avoid the collision;

That the concurrent acts of negligence of the driver of the truck and the driver of the passenger car were the proximate causes of the accident;

That plaintiff seeing the collision ran to the scene thereof, succeeded in opening the doors of the badly damaged Gunter car, and, with the aid of another party, extricated both Mrs. Gunter and the defendant, Robert Joe Gunter, from the automobile, which had meanwhile caught fire;

That, in the effort to further assist the fatally injured Mrs. Gunter, plaintiff attempted to pull a floor mat out of the car to be used as a cushion for her head as she lay upon the roadside; that in the performance of this act plaintiff found a pistol on the floor of the car and handed the same to the defendant Gunter, who, being delirious and temporarily mentally deranged by reason of the shock of the accident, fired the pistol at plaintiff, the bullet passing through plaintiff's left ankle and inflicting serious injuries, for which damages are claimed in this action.

Defendant's exceptions, as directed at plaintiff's petition, are based upon the following points:

(1). That plaintiff's petition contains no allegation under which evidence of the existence of a sudden emergency would be admissible, and, as a consequence, no actionable negligence has been alleged.

(2). That the alleged negligence of the driver of the truck, employee of the defendants, Wheless and Fisher, was not the proximate cause of the injury to plaintiff.

(3). That the act of defendant, Gunter, which caused plaintiff's injury, was an independent, intervening cause which broke the causal chain flowing from the original negligence of the driver of the truck.

(4). That the injuries suffered by plaintiff were not reasonably to be foreseen or anticipated as a normal result of the alleged negligence of the driver of the truck.

Appellees correctly contend that the established jurisprudence of the State of Louisiana requires the driver of an automobile to have his vehicle under such control as to be able to bring it to a complete stop within the range of his vision or the penetration of the lights when confronted by any obstruction or danger. But they argue, further, that since plaintiff did not predicate the allegation of his petition upon any theory of sudden emergency, the simple allegation of statutory negligence fails to set forth a cause of action. In support of this position appellee's counsel has cited the cases of O'Rourke v. McConaughey, La.App., 157 So. 598; Safety Tire Service v. Murov, 19 La.App. 663, 140 So. 879; Bordelon v. T. L. James & Co., La.App., 148 So. 484, 485; Waters, et al. v. Meriwether Transfer Co., 18 La.App. 18, 137 So. 578; and Odom v. Long, La.App., 26 So.2d 709.

Reference to the cited cases discloses the fact that all were tried on the merits and all deal with the question of contributory negligence or the doctrine of last clear chance as between the parties, drivers of the respective vehicles. We concede that the authorities quoted would be applicable if the parties to this suit occupied a similar relationship, but it must be borne in mind that this is not such an action, but rather that plaintiff herein is a third party without any connection with the operation of either of the vehicles, and, therefore, entirely without concern or interest in the application of the doctrines of contributory negligence and last clear chance. For this reason, the cases cited have no application to the point raised.

Plaintiff herein has properly alleged the concurrent negligence of the several defendants and there is ample authority in this State for the proposition that a third person may recover from either or all parties alleged to be guilty of concurrent negligence. Shields v. F. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L.R.A.,N.S., 1080.

The rule is plainly stated in Comment (a) on page 472 of Volume 2 of the Restatement of the Law of Torts as follows: 'A plaintiff who intervenes to rescue a third person is not affected by the fact that the third person has been a legally contributing cause in putting plaintiff in peril.'

Determination of the issue of proximate cause must of necessity be considered with relation to the allied doctrine of intervening cause which is clearly material under the alleged facts of this case.

It is quite true, as contended by learned counsel for defendants, as a general proposition of law that only that negligence which directly causes the injury is deemed to be proximate. But a resolution of this point must perforce depend upon the particular facts of each case.

In the matter before us there are three elements that must be determined:

(a). Did the original negligence of the driver of the parked truck set in motion a chain of circumstances following consecutively one upon the other which led to plaintiff's injury?

(b). Was the act of original negligence superseded by an intervening act breaking the chain of causation leading to plaintiff's injury?

(c). Is the fact that plaintiff's injuries resulted from an improbable and unforeseeable incident sufficient to eliminate the original act of negligence from consideration as a proximate cause?

The answer to these queries will dispose of all the claims based upon the doctrines of proximate and intervening causes and foreseeability.

Upon the basis of the allegations there is no room for any reasonable contravention of the proposition that the circumstances following the negligent parking of the truck down to the removal of the pistol from the car by plaintiff were natural, probable and reasonably to be expected. But at this point an imponderable enters into consideration. The rescuer hands a pistol to the rescued and is shot by the latter. Certainly under the general rule, this action could not be within the reasonable contemplation of any normal individual and the specific incident therefore could not be imputed to the negligent truck driver as a probable result flowing from his negligence. But, unfortunately, the proposition does not admit of being disposed of so easily, for it is well established in the jurisprudence of the State of Louisiana and a majority of other jurisdictions that the general rule must yield to specific instances.

Of course, no Court could reasonably hold that the driver of a vehicle, no matter how gross his negligence, could have contemplated the shooting of a third party as a normal and natural result of such negligence. Nor, indeed, could the rescuer himself be held to have assumed the risk of such a strange, unnatural and unusual result flowing from his gallant efforts.

But, if the results of accidents were normal, usual and predictable, the burden of both Bar and Bench would be made immeasurably lighter.

To determine whether or not the shooting incident is susceptible of being distinguished and set apart from the general law of proximate cause, we must base our conclusions not upon those elements which would be applicable as between parties to the collision itself but as affecting the injury inflicted upon an innocent third party, himself without fault.

Let us assume that plaintiff in this cause, rushing to the aid of helpless parties occupying the automobile involved in the collision in the darkness of night, and wrenching open the door of the vehicle, had been severely bitten by a dog which was accompanying the occupants of the car and which had been so frightened or injured by the shock of the collision as to have lost its accustomed gentleness. Could it be said that such a result was proximately caused by the negligence of the truck driver because such a possibility was...

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