Perrodin v. Thibodeaux
| Decision Date | 04 October 1939 |
| Docket Number | 1986. |
| Citation | 191 So. 148 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | PERRODIN v. THIBODEAUX ET AL. |
Appeal from District Court, Parish of Acadia; W. W. Bailey, Judge.
Action by Mrs. Clarence Perrodin, individually and as tutrix of three minor children, against Russell Thibodeaux and the Maryland Casualty Company to recover damages for the death of Clarence Perrodin. Judgment for plaintiff, and defendant insurance company appeals.
Affirmed.
W. C Perrault, of Opelousas, for appellant.
Griffin T. Hawkins and M. C. Pickrel, both of Lake Charles for appellee.
Clarence Perrodin was killed when struck by a truck driven by the defendant, Russell Thibodeaux, on June 16, 1933, at about eight o'clock P. M. in the Village of Branch, Acadia Parish. The widow of the deceased brought this suit against the driver of the truck and the Maryland Casualty Company, the liability insurance carrier on the truck, for the total sum of $25,000 for herself and in behalf of the three minor children of the deceased. The case was tried in September, 1935, but because of the fact that the testimony was not filed until some three years later, the judgment was not rendered until December, 1938. The trial court rendered judgment in favor of the plaintiff and against both defendants for $8,000, with legal interest thereon from judicial demand, one half for the widow and one half for the minor children. The insurance company alone has appealed.
The truck which Thibodeaux was driving belonged to the Parish of St. Landry and was used by the Police Jury of that parish in building and maintaining roads. Russell Thibodeaux was 21 years of age on the day of the accident. His father, Thomas Thibodeaux, was the road foreman for the Police Jury in the Sixth Ward of St. Landry Parish, and in his capacity as road foreman kept this truck, together with other road machinery, at his home when not in use. Young Thibodeaux resided with his father and was employed in driving the truck when the truck was used for road purposes. On the day of the accident, young Thibodeaux, with the permission and consent of his father, drove the truck to a fish-fry at Krotz Springs and took along with him in the truck two or three neighbors. Thomas Thibodeaux, the father, also attended the outing, going in his own car and taking some friends with him.
Young Thibodeaux left the picnic with his friends in the early afternoon, and after taking his friends to their homes near Lawtell, instead of going to his own home and returning the truck, he continued on to Church Point and there engaged in a card game with several persons. While at Church Point, he endeavored to get some of his young friends to go with him in the truck to Rayne to see some girls. Failing to get anyone to accompany him, he started on the trip to Rayne alone, whether for the purpose of seeing some girls or procuring some oil for use in the truck and road machines, is a disputed question in the case. The accident occurred while he was driving the truck on his way to Rayne.
The deceased, Perrodin, was standing about 2 feet from the western edge of the black-top beside a parked car just off the west side of the road, and in front of a store in the unincorporated village of Branch. The parked car was facing south and the deceased was standing just east of the parked car talking to several men who were standing beside the car, some of them leaning against it. The paved part of the highway at this point is a little less than 18 feet wide, with a shoulder on the east 6 to 8 feet wide, making the distance from the parked car on the west side to the ditch on the east side, some 24 to 26 feet, and the distance from where the deceased was standing to the east side of the road some 22 to 24 feet.
Thibodeaux was driving the truck from the north at a fast rate of speed. A Ford car driven by a Mr. Hayes came into the highway in front of the truck almost a block north of the parked car. This Ford car came into the highway from a side street on the west, and after entering the highway, proceeded south ahead of the truck about in the middle of the road. As the Ford approached the place where the deceased and the other men were standing by the parked car on the west side of the road, the driver of the Ford pulled his car to the left so as to give ample space in passing the men standing beside the parked car. The Ford was going at a slow rate of speed, and after it had passed the deceased several feet and while the Ford was being driven near the center, or to the left of the center of the road, the truck, approaching from the rear at an excessive rate of speed, endeavored to pass the Ford on the right, and in doing so, knocked the deceased some 15 or 20 feet in front of the parked car beside which he was standing, side-swiped the Ford on its rear right fender, and zig-zagged for more than 100 feet down the road, and then turned over, with its front turned back towards the north. The deceased died a short time after he was struck.
The negligence of Thibodeaux is practically conceded, and if it were not admitted, his negligence is so apparent that it requires no comment. There are only two questions presented on the appeal: (1) Was the deceased guilty of contributory negligence in standing on the paved portion of the highway beside the parked car, and in his failure to get out of the way of the fast approaching truck; (2) if there is liability on the part of Thibodeaux, is the insurance company liable under the " omnibus" clause of the policy?
As to the question of contributory negligence on the part of the deceased, the truck had ample room to pass on the left or east of the parked car and the men standing beside it. There was nothing to prevent Thibodeaux from seeing the parked car beside the road and the men near it. The mere fact that a person is standing on the edge of the road when struck by a car, does not necessarily show contributory negligence on his part as a matter of law, where there is ample room for the motorist to pass, as the pedestrian has a right to assume that the motorist will not, without warning, run over him. Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 2, page 456, § 1395; Martin v. Zatarain, 7 La.App. 629.
Thibodeaux not only did not give any warning, but admits that he did not see the deceased standing beside the car and did not know that he had struck him until his truck had come to a stop. It is argued that as the evidence shows that the truck was coming at a fast rate of speed and making a great deal of noise, and as one of the men standing by the car moved to the side of the road, the deceased should also have heard and seen the approaching truck and moved to a place of safety. But the other men standing by the car did not deem the situation sufficiently dangerous for them to move from their position beside the parked car. We think the proximate cause of...
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