Rodriguez v. Abadie
| Decision Date | 01 June 1936 |
| Docket Number | 16244 |
| Citation | 168 So. 515 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | RODRIGUEZ v. ABADIE |
Rehearing denied June 22, 1936.
Jos Rosenberg and Cyril F. Dumaine, both of New Orleans, for appellant.
Geo Montgomery and M. C. Scharff, both of New Orleans, for appellee.
This is a suit by Charles Rodriguez in his capacity as administrator of the estate of his minor child, Anna Rodriguez, claiming damages in the sum of $ 25,000 against Lawrence P. Abadie, arising out of an automobile accident occurring on St. Claude avenue between Marigny and Mandeville streets in the city of New Orleans on December 16, 1933, wherein plaintiff's minor child was run over by an automobile owned by the defendant and operated, at the time of the accident, by the defendant's minor daughter, Claire Abadie.
The petition alleges, in substance, that on Saturday, December 16, 1933, at 10:50 a. m. the plaintiff's minor children, Joseph and Anna Rodriguez, were crossing St. Claude avenue at the downtown river side intersecton of Marigny street, walking towards the woods; that Joseph Rodriguez had successfully crossed the intersection of said St. Claude avenue, and that Anna Rodriguez was walking directly behind him, when she was struck and severely injured by an automobile owned by the defendant and driven by the defendant's daughter; that when the plaintiff's minor child was struck by the automobile, she was dragged a distance of 45 feet before the automobile came to a stop. The specific charges of negligence contained in the petition are: That the defendant's daughter was driving the automobile at a speed estimated at 35 miles per hour; that she failed to see and observe plaintiff's minor child; and that, if she had exercised care and caution, the accident would have been avoided. There are allegations exhibiting severe injury to plaintiff's minor child, and in conclusion there is a prayer for judgment.
The defendant appeared and filed exceptions to the petition, which were overruled. He thereupon filed his answer, in which he relates his version of the accident as follows: That his daughter is an experienced and careful driver, nearly 18 years old; that on the date of the accident she was driving down St. Claude avenue at a speed of not over 25 miles per hour; that when she reached the middle of the block between Marigny and Mandeville streets, plaintiff's minor child ran suddenly into the street, apparently from the sidewalk of St. Claude avenue, from in front of an automobile parked at the curb in the middle of the block; that plaintiff's minor child ran rapidly and without any warning directly into the right front fender of the defendant's automobile; that defendant's daughter immediately applied her brakes and stopped the car almost at once; and that she did everything possible to avoid the accident that a careful and prudent driver would have done when confronted with such an emergency. Thereafter the defendant filed a supplemental and amended answer in which he re-avers all the allegations of the original answer and specifically pleads, in the alternative, the contributory negligence of plaintiff's minor child.
Upon the issues thus presented a trial was had, which resulted in a judgment for the defendant. The plaintiff, claiming error in the judgment below, has appealed.
The question presented for our consideration is mainly one of fact. As is invariably the case in actions for damages resulting from automobile accidents, there is a material variance in the testimony between the witnesses for the plaintiff and the witnesses for the defendant. Certain facts, however, are conceded in the case.
Whereas the plaintiff alleges that the accident happened at the intersection of St. Claude avenue and Marigny streets, all the evidence is to the effect that the accident happened on St. Claude avenue between Marigny and Mandeville streets at a point between 50 and 150 feet from the downtown riverside intersection of St. Claude avenue with Marigny street.
It would serve no useful purpose for us to discuss at length the conflicting testimony. The district judge had full opportunity to hear and see the witnesses and observe their demeanor upon the stand, and, as we have ofttimes said, we will not disturb the judgment of a trial court upon questions of fact unless we find that the decision is manifestly erroneous.
An examination of the evidence disclosed by the record convinces us that the accident happened in the...
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