Quatray v. Wicker

• Decision Date: 27 April 1931
• Docket Number: 13,686
• Citation: 16 La.App. 515,134 So. 313
• Court: Court of Appeal of Louisiana — District of US
• Parties: QUATRAY v. WICKER ET AL

134 So. 313

16 La.App. 515

QUATRAY v. WICKER ET AL

No. 13,686

Court of Appeals of Louisiana, Orleans

April 27, 1931

Appeal from Civil District Court, Parish of Orleans, Division "A". Hon. Hugh C. Cage, Judge.

Action by Dominick Quatray, individually and for use and benefit of his minor son, Austin Quatray, against Michel Wicker et al.

There was judgment and plaintiff and defendant Wicker appealed.

Judgment affirmed in part and reversed in part.

Gasper Bossetta and M. C. Scharff, of New Orleans, attorneys for plaintiff, appellant, appellee.

Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendant, appellee Marchesseau.

Wm. H Talbot, of New Orleans, attorney for M. Wicker, defendant appellant.

OPINION

HIGGINS, J.

Dominick Quatray, individually and in behalf of his minor son, Austin Quatray, sued Michel Wicker and Harry F. Marchesseau in solido to recover medical expenses for his own account and damages for personal injuries and loss of wages in behalf of his son, claimed to have been sustained as a result of an automobile collision near the intersection of London avenue and Gentilly road, this city, on October 14, 1929, at 9:15 a m.

The petition alleges that the accident was caused through the joint and concurrent negligence of Wicker and Marchesseau.

Wicker, through his minor son who was driving his truck, is charged with being at fault in the following respects:

"(1) In driving across Gentilly road without stopping as required by the traffic ordinance of the city of New Orleans; (2) in driving across the highway at a high rate of speed; and (3) in not keeping a proper lookout."

Marchesseau's negligence is said to have consisted of the following acts of commission and omission: (1) Operating his car at an excessive rate of speed in violation of the traffic ordinance; (2) in failing to keep his car under proper control; (3) in not keeping a proper lookout, particularly when his view of the highway was obstructed.

Wicker denied liability averring that the negligence of Marchesseau in operating his car at a reckless rate of speed without maintaining a proper lookout and in failing to keep his car under control were the sole and proximate causes of the accident. He admitted, however, that his truck crossed without stopping as required by the traffic ordinance. He further specially pleaded assumption of risk by the injured boy and also that the young man was guilty of contributory negligence.

Marchesseau answered denying liability and alleging that Wicker was solely at fault in causing the accident because his son drove from an obscure place across the highway at a fast rate of speed without stopping, in violation of the city ordinance; that the injured boy assumed the risk, as he knew that Wicker's son was a fast driver; that Wicker, Jr., was tried and convicted in the criminal district court under the State Highway Traffic Act for operating his truck in a reckless and careless manner and causing personal injury; and that he (Marchesseau) was acquitted on the same charge.

There was judgment in favor of Dominick Quatray against Michel Wicker in the sum of $ 294 for medical expenses, and in favor of Austin Quatray against Wicker in the sum of $ 2,000, $ 1,500 for his injuries and $ 500 for loss of wages. Plaintiff's suit was dismissed as to Marchesseau. Plaintiff and Wicker have both appealed, and plaintiff further answered the appeal and asks that the award of damages for personal injuries be increased.

From the record we gather the following to be the facts of the case as were substantially alleged in the petition:

Austin Quatray, age 18, was employed at Duke's Service Station at a weekly wage of $ 15. The station is situated on the lake side of Gentilly road at the intersection of London avenue. On the morning of the accident Michel Wicker and his minor son, who was driving his father's National three-fourths ton truck, stopped at the service station and requested that an employee be permitted to go on the truck in order that it might be returned for the purpose of having it greased. Austin Quatray boarded the truck, which drove off while he was on the running board and climbing over the side to get into the body of the truck where he seated himself on some milk cases. The truck was driven at a 45-degree angle in the direction of Chef Menteur or away from the city from the garage, which is located about 75 feet back from Gentilly road. Young Wicker drove the truck at about fifteen miles per hour, and, without stopping, crossed the roadway at a point about 15 feet from the end of the London avenue canal bridge, which is located 142 feet from the garage. This bridge is about 107 feet in length, Gentilly road on both sides of the bridge has a slight curve in it, and London avenue intersects Gentilly road on the New Orleans side of the bridge. The defendant Marchesseau was driving a Buick sedan towards the city of New Orleans on the right-hand side of the Gentilly road. Due to the fact that the bridge is elevated and the approach from both sides is on an incline and further on account of the concrete balustrades and railings on the bridge, as well as weeds which have grown up adjacent to it, the views of the drivers of both machines were obstructed from seeing each other until the Buick was on the bridge and the truck was about to enter the asphalt portion of Gentilly road. The machines collided 15 feet from the New Orleans end of the bridge; the extreme left side of the Buick striking the left side of the truck just back of the cabin where the driver was seated, causing both cars to be thrown to their respective right sides of the road.

The truck came to rest on the bridge, with its rear end adjacent to the city side of the bridge. The Buick stopped about 40 feet from the point of collision. Austin Quatray was found on the lake side of Gentilly road near the end of the bridge where the cars collided and at the foot of a small levee which comes up to the balustrade of the bridge on the lake side. He was unconscious and badly injured, and was taken to the hospital for treatment.

Plaintiff clearly proved that Wicker's son, who was driving the truck, was at fault in failing to stop his car as required by the Traffic Ordinance 7490, C. C. S., and in driving across Gentilly road, a public highway, at 15 miles per hour without keeping a proper lookout. He was guilty of gross carelessness and negligence.

The next question is whether Marchesseau was guilty of negligence that contributed to the accident. He states that he was driving his car at a rate of speed of about 25 miles per hour, on the right-hand side of the road going in the direction of New Orleans; that he first noticed the Wicker truck when he was about the middle of the bridge and the truck's front wheels were about to come upon the asphalt portion of Gentilly road; that he was unable to turn on account of being on the bridge, and, as he came to the New Orleans end of the bridge, he attempted to swerve to the right and at the same time applied his brakes, causing his car to skid so that the left rear side of it struck the truck as above described; that the truck was crossing the road at an angle about 15 feet from the New Orleans end of the bridge; that his view of the truck was obstructed, due to the fact that there is a declivity in the road on account of the bridge being elevated and the approaches to it being on an incline and also because of the weeds and the concrete balustrades of the bridge.

Wicker, Jr., testified that in his opinion the Buick car was going about 40 miles per hour.

Gentilly road is a portion of the Louisiana highway system, forming a part of route No. 61 under the provisions of Act No. 294 of 1928.

Section 5, "Restrictions on Speed," subsec. (a) of Act No. 296 of 1928, reads as follows:

"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person."

Subsection (b) of section 5 of the same act provides:

"Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver of a vehicle to drive at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful."

Paragraph 3 of subsection (b) of the same section provides:

"Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection."

Subsection (c) of the same section reads as follows:

"Local authorities in their respective jurisdictions are hereby authorized in their discretion to increase the speed which shall be prima facie lawful upon through highways at the entrances to which vehicles are by ordinance of such local...