Otis v. New Orleans Public Service, Inc.
| Decision Date | 20 February 1961 |
| Docket Number | No. 21414,21414 |
| Citation | 127 So.2d 197 |
| Parties | Robert Lee OTIS v. NEW ORLEANS PUBLIC SERVICE, INC. |
| Court | Court of Appeal of Louisiana — District of US |
A. J. Weysham, New Orleans, for plaintiff-appellant.
Alvin R. Christovich and W. W. Ogden, New Orleans, for defendant-appellee.
Before JANVIER, YARRUT and SAMUEL, JJ.
This is a suit by an automobile passenger for personal injuries arising out of a collision between the car in which he was riding and a bus owned by the defendant and operated by the defendant's employee. Defendant's answer denied negligence on its part, alleged that the sole cause of the accident was the negligence of the driver of the automobile and his passenger (the present plaintiff) and, alternatively, pleaded contributory negligence on the part of plaintiff. The trial court held that there was no negligence on the part of defendant and dismissed plaintiff's suit. The plaintiff has appealed.
A similar suit arising out of the same accident was filed against the same defendant by plaintiff's driver, Elijah Hooker, and the two cases were consolidated for trial. We have this day handed down an opinion and decree in the Hooker case (Hooker v. New Orleans Public Service, Inc.), La.App., 127 So.2d 199.
The record reveals that Hooker and the plaintiff were together for some time before the accident occurred and that Hooker was intoxicated to an extent sufficient to impair his ability to drive safely and, we are satisfied, also to such an extent that this intoxicated state was known, or should have been known, to the plaintiff. Both Hooker and plaintiff had been drinking, the former 'heavily'.
The other facts involved in the accident are set forth in our opinion in the Hooker case and need not be repeated here. It is sufficient to point out that we have not disagreed with the trial court's finding of no negligence on the part of the defendant driver and, in addition, have decided that Hooker was guilty of gross negligence which as contributory negligence and a proximate cause of the accident prevented him from recovering.
Judgment in the instant case must go against the plaintiff for the same reason, contributory negligence.
While the driver's negligence cannot be imputed to a passenger or guest in the car, the latter can be, and here was guilty of such individual contributory negligence as to defeat his recovery.
It is well settled in our jurisprudence that a guest passenger cannot recover for injuries received as a result of his driver's negligence where that driver has had a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties and cause such faculties to be materially impaired and where the guest passenger knew or should have known of the driver's condition and yet voluntarily rode with him. Dowden v. Bankers Fire & Marine Ins. Co., La.App., 124 So.2d 254; McAllister v. Travelers Ins. Co., La.App., 121 So.2d 283; Lyell v. United States Fidelity & Guaranty Co., La.App., 117 So.2d 290; Woods v. King, La.App., 115 So.2d 232; Elba v. Thomas, La.App., 59 So.2d 732.
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Jones v. Continental Cas. Co. of Chicago, Ill.
...persons in any case where the host driver was guilty of negligence which was a proximate cause of the accident.' Otis v. New Orleans Public Service, Inc., La.App., 127 So.2d 197. See, Grayson v. Allstate Insurance Company, La.App., 141 So.2d Evidence of record shows that the guest passenger......
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Jones v. Continental Cas. Co. of Chicago, Ill.
...in any case where the host driver was guilty of negligence which was a proximate cause of the accident.' Otis v. New Orleans Public Service, Inc., La.App. 4 Cir., 127 So.2d 197; Ford v. New Orleans Public Service, Inc., La.App.Orl., 102 So.2d 523; Elba v. Thomas, La.App.Orl., 59 So.2d 732. ......
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Baltimore County v. State, Use of Keenan
...v. Tranchina (La.App.), 115 So.2d 890 (occupants of both cars had been engaged in common drinking venture); Otis v. New Orleans Public Service, Inc. (La.App.), 127 So.2d 197 (assumption of risk as against host; contributory negligence as against third party); Clinton v. City of West Monroe ......
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Gruber v. Beeson, 5708
...Insurance Company, La.App., 124 So.2d 254. See, Grayson v. Allstate Insurance Company, La.App., 141 So.2d 101; Otis v. New Orleans Public Service, Inc., La.App., 127 So.2d 197; Cormier v. Angelle, La.App., 119 So.2d 876; Ford v. New Orleans Public Service, Inc., La.App., 102 So.2d 523; Elba......