Newton v. Pacillo

• Decision Date: 04 May 1959
• Docket Number: No. 8994,8994
• Citation: 111 So.2d 895
• Parties: Chester Leroy NEWTON, Plaintiff-Appellee, v. Frank PACILLO et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 895

111 So.2d 895

Chester Leroy NEWTON, Plaintiff-Appellee, v. Frank PACILLO et al., Defendants-Appellants.

No. 8994.

Court of Appeal of Louisiana, Second Circuit.

May 4, 1959.

Rehearing Denied May 27, 1959.

Certiorari Denied June 25, 1959.

Joseph R. Bethard, Shreveport, for appellants.

Lunn, Irion, Switzer, Trichel & Johnson, Luther S. Montgomery, Shreveport, for appellee.

AYRES, Judge.

This is an action in tort arising out of an accident of April 26, 1958, wherein plaintiff was allegedly struck by an automobile driven by Mrs. Grace J. Pacillo, one of defendants, and in which plaintiff allegedly sustained serious, painful and permanent injuries.

The accident occurred about 9:00 o'clock P.M. near the middle of the 1400 block of Barksdale Boulevard. This boulevard constitutes a segment of U.S. Highway 71 as it traverses Bossier City in a general east and west course. This is a concrete paved six-lane highway 60 feet wide, consisting of two traffic lanes in either direction, with an on-street parking lane on each side. The block is unusually long, approximately 600 feet, but is well illuminated by street lights at both ends as well as in the middle of the block, with additional illumination provided by the business establishments located in the vicinity. Heavy rains had fallen during the day and a mist persisted to the time of the accident. The street was wet. Water covered the eastern portion of the block, varying from about 1 1/2 inches in depth at the center to several inches on the sides of the street. No sidewalks parallel this block. Mrs. Pacillo was proceeding easterly on Barksdale Boulevard to a restaurant operated by her husband. The lights on her vehicle were properly functioning.

Events immediately preceding the accident may be briefly stated. Plaintiff, a young man, not quite 21 years of age at the time, accompanied by a friend, Billie P. Little, was walking in an easterly direction on the south side of Barksdale Boulevard. On reaching a point where water covered the pedestrian walkway near the middle of the aforesaid block, they decided to cross the street and continue east on the north side where they anticipated less water. They started to cross and, on arriving at approximately the center of the street, on observing the approach of an automobile from their right, they either stopped or continued to walk slowly eastward down the middle of the street. While so doing, Mrs. Pacillo approached from the west and the accident occurred, resulting in the injuries for which plaintiff now seeks to recover damages.

Plaintiff alleged that the accident resulted from the negligence of Mrs. Pacillo in a number of particulars in that she failed to maintain a proper lookout, or to keep her vehicle under control, or to observe plaintiff, or to operate her car at a proper rate of speed, or to stop it or to turn it in either direction to avoid striking plaintiff, and, alternatively, alleged that Mrs. Pacillo had the last clear chance to avoid the accident but failed to avail herself of the opportunity to do so. Defendants denied liability, asserting Mrs. Pacillo's freedom from negligence and charged plaintiff with negligence constituting a proximate cause of the accident, and, alternatively, with contributory negligence.

After trial and submission of the case, the trial court concluded that Mrs. Pacillo had the last clear chance to avoid the accident and that she failed to avail herself of that opportunity, and, accordingly, rendered judgment in favor of the plaintiff. Defendants have appealed. Plaintiff, in answer to the appeal, has prayed that the award be increased.

As to the question of liability, plaintiff concedes his own gross negligence and relies solely upon the doctrine of last clear chance. Defendants contend that the doctrine has no application in the instant case.

The question for determination is the applicability vel non of the doctrine of last clear chance to the facts and circumstances of the instant case. The doctrine as applied to those operating motor vehicles is that where a motorist sees, or where by the exercise of due diligence he should and could have seen, a person in peril, of which such person is unaware or unable to extricate himself, the duty devolves upon the motorist to use every possible available means to avert injury, notwithstanding the negligence of such person; and if the motorist fails to perform such duty, the last clear chance doctrine applies, even though such other person's negligence continues to the moment of the occurrence of the accident. Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 960, 181 So. 195.

For the successful invocation of the doctrine the existence or presence of three essential elements must be established, (1) that the plaintiff was in a position of peril of which he was unaware, or from which he was unable to extricate himself; (2) that the defendant actually discovered or was in a position where he should have discovered plaintiff's peril, and (3) that, at the time, the defendant could have, with the exercise of reasonable care, avoided the accident. Brown v. Louisville & Nashville R.R. Co., 5 Cir., 234 F.2d 204; Id., D.C., 135 F.Supp. 28; Segreto v. American Automobile Ins. Co., 5 Cir., 239 F.2d 641; Id., D.C., 137 F.Supp. 194; Maryland Casualty Co. v. Allstate Ins. Co., La.App., 96 So.2d 340, 344; Ballard v. Piehler, La.App., 98 So.2d 273, 276; Russo v. Texas & P. Ry. Co., 189 La. 1042, 181 So. 485.

A brief re sume of the facts of the case to which the aforesaid principles are allegedly applicable is indispensable to an understanding and a discussion of the merits of the issue presented. The witnesses to the accident were plaintiff, his companion, and the defendant, Mrs. Pacillo. Others testifying to material facts were one Melvin Stewart, an employee in a garage fronting the street at the scene of the accident, and the police officers who made an investigation.

From the demeanor of plaintiff and of his companion and the many contradictions and inconsistencies in their testimony, little credence can be placed in their statements given on or for the purpose of the trial of this case. Nevertheless, the evidence establishes that plaintiff and Little were walking in an easterly direction along the south side of Barksdale Boulevard; that when they reached the middle of the 1400 block thereof they resolved to cross over the street to the north side to avoid walking through water covering the street and walkway; that, in carrying out this intention and on reaching the center of the street, they either stopped or slowly walked a few steps easterly awaiting the passage of a motor vehicle approaching from their right, that is, from the east. Little testified that, before starting across the street and while standing in the walkway on the south side of the street, he saw an automobile approaching from his left, that is, from the west, about a block away. This is the automobile later ascertained to be that of Mrs. Pacillo. Nevertheless, he and plaintiff proceeded into the street without his ever having called plaintiff's attention to the approach of the car. This automobile, he says, when he first saw it, was in its right-hand lane of traffic, but that when they reached the center of the street the car took a diagonal course across the street and struck plaintiff. Before entering the street plaintiff testified he looked for traffic, particularly to his left, and saw none approaching; that he never saw the car that struck him, but momentarily before the impact he heard the sloshing of water behind him in the street by the approach of a motor vehicle and, as he lifted his foot to turn around, he was struck by the car.

Stewart, from his place of business, saw plaintiff and Little in the middle of the street walking slowing along the center. At the time Stewart was engaged in cleaning out a storm sewer...