Rainwater v. Boatright

• Decision Date: 31 October 1952
• Docket Number: No. 7892,7892
• Citation: 61 So.2d 212
• Parties: RAINWATER v. BOATRIGHT et al.
• Court: Court of Appeal of Louisiana — District of US

Page 212

61 So.2d 212

RAINWATER v. BOATRIGHT et al.

No. 7892.

Court of Appeal of Louisiana, Second Circuit.

Oct. 31, 1952.

Simon & Carroll, Shreveport, for appellant.

J. Bennett Johnston, Shreveport, for appellees.

GLADNEY, Judge.

Robert W. Rainwater instituted this suit to recover damages for personal injuries to his minor child, Judy Rainwater. He appeals from a judgment of the trial Court rejecting his demands.

Appellant alleges that at 4:15 o'clock P. M. on February 8, 1950, Judy Rainwater was preparing to cross from the west to the east side of Fairfield Avenue, at the intersection of East 63rd Street in the City of Shreveport, Louisiana; that prior to crossing Fairfield Avenue at said intersection, Judy stopped on the west curb in the crosswalk and looked carefully to the right and to the left; that the only vehicle within 300 feet approaching the point where Judy had stopped was a Ford coupe automobile approximately 100 feet to the south proceeding in a northerly direction on Fairfield Avenue; that Judy started across Fairfield Avenue and when she had reached a point approximately 4 feet west of the east curb line of said Avenue she was struck by the Ford automobile, and that after being struck Judy was pushed or dragged a distance of about 54 feet. The petition further alleges the extent of her treatment and her injuries which included a complete fracture of the right femur, severe lacerations and bruises of her left hand, arm and body. It is averred that as a result of said accident, one leg is approximately one-half inch shorter than the other which causes her to walk with a limp and to tire more easily.

It is charged that the automobile above referred to was being driven and operated by the defendant, Mrs. Lucille Boatright, in a negligent manner in that Mrs. Boatright was driving at an excessive and dangerous rate of speed, by her failure to maintain a proper lookout, and by her failing to have and bring the automobile under proper control so as to avoid the accident.

Made respondent with Mrs. Lucille Boatright is her husband, Jesse M. Boatright, it being charged that the car was being driven for the benefit of the community of acqets and gains existing between the husband and wife.

The answers of respondents were in the nature of a general denial as to all material allegations of fault. It was affirmatively pleaded by respondents that at the time and date above set forth Mrs. Boatright, accompanied by her mother, Mrs. J. B. Sibley, was traveling in a 1941 Ford coupe north on Fairfield Avenue at a speed not in excess of 15 miles per hour; that when they had reached a point near the intersection of Fairfield Avenue and 63rd Street, and at a point on the east side of Fairfield Avenue opposite Jo Ann Ice Cream Factory, or store, she felt or heard a bump on the left rear of her automobile; that Mrs. Sibley also heard the bump and after the car had proceeded in a northerly direction of approximately 30 or 40 feet respondent's mother, while looking back saw a child lying in the street and immediately exclaimed: 'There is a child lying in the street'; and that respondent immediately stopped the car and got out and ran back to the child and assisted her in every manner. Respondent further alleges that she was driving her automobile as she reached the intersection above referred to in a careful and prudent manner on her right side of the street, the east side of Fairfield Avenue, at a speed not in excess of 15 miles per hour; that she was keeping a proper lookout in all directions; and that the front of her car did not hit said child, nor did the left fender hit said child. She also avers that though she did not see any impact between the child and her car, the child, Judy Rainwater, ran out from between two cars which were parked on the left or west side of Fairfield Avenue in front of the Jo Ann Ice Cream Factory and ran into the left rear fender and left rear wheel of respondent's car. It is specifically denied that the automobile dragged the child or that the left rear wheel ran over the said child.

The record reveals that at the time of the accident Judy Rainwater was five years of age. Contributory negligence, therefore, cannot be attributed to a child of such tender years. Bodin v. Texas Company, La.App., 1939, 186 So. 390; Borman v. Lafargue, La.App., 1938, 183 So. 548.

A motorist aware of the presence of children is held to the highest degree of care in the operation of the motor vehicle. In Stamps v. Henderson, La.App., 1946, 25 So.2d 305, 308, it is said:

'The jurisprudence of this state teems with decisions discussing and defining the duty of motorists toward children on sidewalks and along or near to roadsides. There is some lack of uniformity in pronouncements of the courts on that subject. In the final analysis, the facts of each case must and do, as a rule, determine the question of liability or nonliability. However, the courts have made it clear that a motorist is held to a high degree of care in the operation of a motor vehicle on the streets and highways where children assemble or walk, to the end that they be not injured or killed, notwithstanding youthful indiscretion and propensity.'

A further statement of the standard of care required is to be found in McMorris v. Graham, La.App., 1937, 176 So. 630, 632. It is as follows:

'A motorist passing children playing or riding on the streets is required to use proper care in giving the necessary signals, in bringing his car under control, and in anticipating the unusual and impulsive actions characteristic of persons of immature years. This rule implies that when the motorist sees a child or young person on the street ahead of him, he must be ready to guard against an unexpected and sudden movement on the part of the child calculated to endanger the child's safety, and the motorist must anticipate that young persons will not always act to protect themselves from danger as will a mature adult under the same circumstances. 2 Blashfield's Cyclopedia of Automobile Law and Practice (Permanent Edition) p. 540, § 1501 and § 1502, p. 544; Albert v. Munch, 141 La. 686, 75 So. 513, L.R.A.1918A, 240; Guillory v. Horecky, 185 La. 21, 168 So. 481; Cimo v. Karstendiek, La.App., 173 So. 548.

'But the motorist is not the insurer of the safety of children playing or riding in the street. If the motorist has used all reasonable precautions to avoid an accident, and the sudden act of the child creates an emergency rendering it impossible for the motorist to avoid hitting the child, the accident is said to be unavoidable, and there is no liability. 2 Blashfield's Cyclopedia of Automobile Law and Practice (Permanent Edition) page 532, § 1498; Rodriquez v. Abadie, La.App., 168 So. 515.'

If the evidence presented by the record before us indicates that Mrs. Boatright was negligent or at fault it would be consistent with the foregoing settled principle of law to pronounce judgment in favor of appellant. However, if the defendant, Mrs. Lucille Boatright, committed no act of negligence which can be said to have...