Owens v. Monzingo

• Decision Date: 28 June 1939
• Docket Number: 5904.
• Citation: Owens v. Monzingo, 191 So. 581 (La. App. 1939)
• Court: Court of Appeal of Louisiana
• Parties: OWENS v. MONZINGO ET AL.

191 So. 581

OWENS v. MONZINGO ET AL.

No. 5904.

Court of Appeal of Louisiana, Second Circuit.

June 28, 1939

Rehearing Denied July 17, 1939.

Writ of Certiorari and Review Denied Oct. 30, 1939.

Appeal from First Judicial District Court, Parish of Caddo; E. C McClendon, Judge.

Action by Lou Owens against S. F. Monzingo and others for injuries received by the plaintiff while a passenger on the named defendant's bus. Judgment for defendants and plaintiff appeals.

Affirmed.

Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport for appellant.

Irion & Switzer, of Shreveport, for appellees.

HAMITER, Judge.

Defendant, S. F. Monzingo, owns and operates a common carrier motor bus line between Shreveport, Louisiana, and Center, Texas. The route followed is via Holley and Mansfield, Louisiana. On January 23, 1936, plaintiff, a colored woman sixty years of age, boarded one of defendant's buses at Shreveport as a paid passenger with the view of traveling to Mansfield, Louisiana. Allegedly, she sustained personal injuries during the progress of the trip, and as a consequence this suit for damages was instituted.

In Article 6 of the original petition she avers: " That while thus riding in the said bus as a paying passenger and while the said bus was traveling on the said highway at a point approximately fourteen (14) miles south of Shreveport, and in the Parish of Caddo, State of Louisiana, your petitioner, through no fault of her own, was suddenly and violently thrown from her seat and her head caused to strike some object overhead forming a part of said bus, and she was knocked unconscious."

A supplemental petition, filed by reason of the district court's decree sustaining defendant's exception of no cause of action with reservation of plaintiff's right to amend, added the following allegation to said Article 6, viz: " * * * that your petitioner does not know what caused her to be thus suddenly and violently thrown from her seat, but that she is informed and believes and alleges on this information and belief that her head was struck and she was injured as a result of the negligence of the driver of the said bus in recklessly driving the left wheels of the bus off the road at a rapid and dangerous rate of speed and striking a bump or some object located to the left of and off the said road; that at the time of this accident the said driver was acting within the scope of his employment."

Defendant, in his answer, generally denies the allegations of the original and supplemental petitions and affirmatively avers that the driver of the bus was guilty of no negligence whatever.

Plaintiff's demands were rejected, after trial, and she appealed.

The bus in question departed from Shreveport on the morning of the above mentioned date. It weighed approximately 6,000 pounds and was capable of accommodating from sixteen to twenty passengers. The wide seat located in its rear was occupied by plaintiff and by another colored woman, Anna Mae Robinson. The space separating the ceiling from the tops of the heads of these persons was from twenty to twenty-three inches. No package racks or fixtures intervened.

Also on the journey were three other paying passengers. All of these were of the white race. They sat near the front of the vehicle, but behind the driver.

After approximately fifteen miles of the trip had been negotiated a grading machine, slowly proceeding in the same direction, was encountered. The road at that point is of gravel construction and about sixteen feet in width. The bus was slowed from approximately 35 to 25 miles per hour, and was driven to the left and around the grader. During the course of this maneuver its right wheels remained on the gravel, while those on the left side rolled along the road's grassy shoulder. When the bus was some distance beyond the passed vehicle, this being variously estimated by the witnesses at from 500 yards to one-half mile, plaintiff yelled " oh", as though she was hurt. A stop was made immediately after that occurrence, and the driver and one of the white passengers went to investigate her condition and to lend assistance. Her eyes were found to be slightly closed, with tears therein, and she was slumped over and possessed a dizzy and fainty appearance. At first there was no response to the questions asked of her. After a massaging of her neck, she stated that it was hurt. The driver then induced her to take a seat closer to the...