McMorris v. Graham

• Decision Date: 06 November 1937
• Docket Number: 1758
• Citation: 176 So. 630
• Court: Court of Appeal of Louisiana — District of US
• Parties: McMORRIS, for Use of McMORRIS, v. GRAHAM

176 So. 630

McMORRIS, for Use of McMORRIS, v. GRAHAM

No. 1758

Court of Appeal of Louisiana, First Circuit.

November 6, 1937

H. M English and Dudley L. Weber, both of Baton Rouge, for appellant.

Roland C. Kizer, of Baton Rouge, for appellee.

OPINION

OTT Judge.

Dempsey McMorris, plaintiff 's 11 year old son, had both bones of his left leg broken, and sustained other injuries on July 26, 1936, when defendant's automobile struck the boy on St. Louis street in the city of Baton Rouge. The suit is for $ 5,000 damages on behalf of the boy, and for the sum of $ 166 medical, hospital, and drug bills incurred by plaintiff on account of said injury.

The case is here on an appeal by the plaintiff from a judgment rejecting his demands. The trial judge, in a carefully written and well-considered opinion, discussed and analyzed the facts, and reached the conclusion that plaintiff had failed to prove negligence on the part of the defendant. We are asked to review the facts and reach a different conclusion.

The issues are correctly stated by the trial judge as follows:

"Plaintiff alleges that on the 26th day of July, 1935, the defendant Donald Graham, negligently drove his automobile over his said minor son, severely injuring and crippling him, breaking both bones in his left leg and inflicting other injuries. (3)5C

"The plaintiff alleges that at the time of the accident his said son, Dempsey McMorris, was running a "scooter' south on St. Louis Street; that his said son was on the right side of said street against the banquette, when the defendant who was traveling south in his automobile, on St. Louis Street, at a high rate of speed struck said Dempsey McMorris "while he was standing against the banket on right side of said street.'

"The plaintiff filed an amended and supplemental petition somewhat changing the allegations of his original petition as to the manner in which the accident occurred. Paragraph II of the supplemental petition reads as follows: "Your petitioner further shows as set out in paragraph 3 of his original petition, that his said son was riding a "scooter" going south on the right side or west side of St. Louis Street when he was in about the middle of the block, he ran into the blanket and was just getting ready to stop or had stopped when the car of Donald Graham ran against him and knocked him down and drug him or rolled him more than twenty feet from where he struck his said son and left his said son in the street with both bones of his left leg broken and unconscious and bleeding.'

"For answer to the original and supplemental petitions filed by the plaintiff, defendant admitted the accident, but avers that when the boy was struck he was running his "scooter' in the middle of the street and not on the right hand side of the street.

"Defendant avers that he turned into St. Louis Street at the intersection of St. Louis and Government Streets, which is approximately a block and a half from the place where the accident occurred; that he was traveling south on the right or west side of St. Louis Street at a slow rate of speed; that he was driving in a careful and cautious manner and that he maintained a proper lookout; that as he was traveling down said street, he observed plaintiff's son operating a scooter near the middle and slightly to the right of the center line of St. Louis Street; that when he saw the said minor he immediately sounded his horn to notify the boy of his approach, and thereafter, at intervals, continued to sound his horn to make sure that the boy would be aware of his approach; that the boy turned his head and observed the approach of defendant's automobile but continued to operate the "scooter' south on St. Louis Street, whereupon, traveling at a rate of speed of between ten and fifteen miles an hour, he proceeded to go around the boy on the left, but that as he approached alongside of the boy, the boy either fell from the "scooter' or turned to his left and ran into the side of defendant's automobile; that feeling the impact, he pulled his car further to the left and to the east curb of St. Louis Street when he stopped and observed the child lying in the middle of the street.

"Defendant avers that the accident was due to the negligence of the minor which defendant says consisted in the fact that the boy who was operating the scooter in the middle of the street, turned to the left and ran into the automobile or fell of the "scooter' on to the automobile.

"Defendant pleads in the alternative the contributory negligence of the minor."

The greatest conflict in the testimony revolves around the most vital points in the case, i. e., the place in the street where the boy was struck, the speed at which defendant was traveling, the manner in which the boy was struck, and whether or not defendant gave any alarm when overtaking the boy.

On the first point, the decided preponderance of the evidence is to the effect that the boy was struck near the center, or slightly to the right of the center, of the street. It appears that the street at the point of the accident is 30 feet wide. This indicates that the boy was struck from 12 to 15 feet east of the west curb. The plaintiff, his son, the boy's mother, and a negro man, say that the boy was around 3 feet from the west curb when struck. The defendant and several disinterested witnesses testified that the accident occurred near the center of the...