Martin v. Toye Bros. Yellow Cab Co.

• Decision Date: 24 June 1935
• Docket Number: 16099
• Citation: 162 So. 257
• Court: Court of Appeal of Louisiana — District of US
• Parties: MARTIN v. TOYE BROS. YELLOW CAB CO. et al

162 So. 257

MARTIN v. TOYE BROS. YELLOW CAB CO. et al

No. 16099

Court of Appeal of Louisiana, Orleans.

June 24, 1935

John P. Sullivan, David Sessler, and Gordon Boswell, Trial Atty all of New Orleans, for appellants.

Normann & McMahon and Harold M. Rouchell, all of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

This is an appeal from a judgment condemning George Thompson and Toye Brothers Yellow Cab Company to pay the sum of $ 6,000 to Arthur Martin as damages for physical injuries sustained by the plaintiff as the result of a collision between a yellow cab owned by Toye Bros. and driven by George Thompson and a motorcycle ridden by the plaintiff, Arthur Martin. The accident occurred on March 31, 1933, on South Peters street near the intersection of South Diamond street, in the city of New Orleans, at about 3:30 p. m. Plaintiff, who was an employee of Meyer Bros., Inc., a corporation engaged in the sale and repair of automobile tires, was sent to the premises No. 923 South Peters street for the purpose of removing a deflated tire attached to a Cadillac automobile which was parked in front of the premises. He removed the tire and placed it in a "side car" attached to his motorcycle and started toward his employer's place of business, moving in a diagonal direction from left to right across South Peters street in the direction of South Diamond street, and collided with defendant's taxicab near the intersection.

The charges of negligence as set out in the petition are excessive speed, the failure to execute the proper turning maneuver, and the failure to accord plaintiff the right of way, all in violation of ordinance No. 13702, C. C.S., of the city of New Orleans.

The defendants denied all charges of negligence imputed to them, averring that the accident was due to the failure of the driver of the motorcycle to maintain a proper lookout, or to moderate its speed, and because it was driving on the left, or wrong side of the street, and "defendants aver, in the alternative, that in all events the plaintiff was contributorily negligent, which bars his recovery," and later, on the day of trial, about a year after the answer had been filed, over the strenuous objection of counsel, a supplemental answer was filed in which the charge of contributory negligence was set forth with particularity.

The first question which we shall discuss is whether the alleged contributory negligence of the plaintiff has been properly pleaded. The supplemental answer, as we have stated, was filed on the day of trial over the objection of counsel. The argument is made that the supplemental answer should have been excluded because it involved a change in the issue, in violation of article 419 of the Code of Practice, which reads as follows: "Art. 419. After issue joined, the plaintiff may, with the leave of the court, amend his original petition; provided the amendment does not alter the substance of his demand by making it different from the one originally brought." In State v. Bozeman, 156 La. 635, 101 So. 4, 6, the court, in considering a similar plea which, like the one here, was filed on the day the case was called for trial, said, in referring to the action of the trial court in excluding the supplemental answer: "We think the ruling of the court was correct, first, because the amendments were tendered after the case was fixed and called for trial; (3)5C secondly, because the issues had been made up between the parties and could not be changed by further pleadings. (3)5C" In Vicknair v. Terracina, 164 La. 117, 113 So. 787, 789, a suit by a wife for separation, the court, with reference to an amended and supplemental answer filed by defendant, expressed the following opinion: "As the allegations in the supplemental answer clearly change the issues in the case, and as defendant did not reconvene for a separation from bed and board on any ground, the trial judge's ruling rejecting the amended answer is correct, in our opinion. C. P. arts. 419, 420, 421; Lampton v. Bank, 41 La.Ann. 719, 6 So. 547; Young v. Gay, 41 La.Ann. 758, 6 So. 608." See, also, Edwards v. Monahan et al., 10 La.App. 41, 120 So. 881; Jordan v. Checker Cab Co., Inc., 10 La.App. 132, 120 So. 426. From a consideration of the foregoing authorities, it is apparent that the trial court should have excluded the supplemental answer.

We have now to consider the sufficiency of the plea of contributory negligence as set forth in defendant's original answer to the effect that "plaintiff was contributorily negligent, which bars his recovery." In Quatray v. Wicker, 16 La.App. 515, 134 So. 313, 316, this court said: "Counsel for Wicker complains of the ruling of the trial court in excluding evidence, which was timely objected to, and offered for the purpose of tending to show that the injured boy was guilty of contributory negligence because he knew that the driver of the truck, Michel Wicker, Jr., was a fast driver. This evidence was excluded by the trial court on the ground that a mere allegation in the answer that the plaintiff's son was guilty of contributory negligence is simply a conclusion of law, and that, in order to properly plead contributory negligence, it is necessary to set up such facts relied upon as constituting contributory negligence. "The defendant Wicker in his answer merely alleges: "Further answering, your respondent pleads contributory negligence in the event it is found that the driver of the Wicker truck was in any way guilty of negligence, which is specially denied.' We are of the opinion that the trial court's ruling is correct." In Kernstock v. City of New Orleans, 147 So. 371, 373, we said: "To charge contributory negligence is to charge a conclusion of law and, unless there are alleged facts from which the legal conclusion may be drawn, then the charge may as well not be made." We conclude, on this point, that contributory negligence has not been properly pleaded.

The case must be determined from the standpoint of the negligence, vel non, of the driver of the taxicab.

Article VI, sec. 3, subsec. (a) of the traffic ordinance, No. 13702 C. C.S., of the city of New Orleans, reads as follows:

"3. Turning at intersections.

"(a). Right turns.

"The operator of a vehicle intending to turn to the right of an intersection or into an alley or driveway shall approach the point of turning in the traffic lane nearest the right hand edge or curb of the roadway; giving the proper hand signal indicating his intention and in...