Sears v. Interurban Transp. Co., Inc.

• Citation: 125 So. 748,14 La. App. 343
• Decision Date: 31 January 1930
• Docket Number: 3598
• Court: Court of Appeal of Louisiana (US)
• Parties: SEARS v. INTERURBAN TRANSP. CO., INC. (UNION INDEMNITY CO., Warrantor)

125 So. 748

14 La. App. 343

SEARS v. INTERURBAN TRANSP. CO., INC. (UNION INDEMNITY CO., Warrantor)

No. 3598

Court of Appeals of Louisiana, Second Circuit

January 31, 1930

Rehearing Refused March 24, 1930.

Writ of Certiorari and Review Refused by Supreme Court May 5, 1930.

Appeal from Ninth Judicial District Court, Parish of Rapides. Hon Leven L. Hooe, Judge.

Action by George E. Sears against the Interurban Transportation Company, Inc., Union Indemnity Company, warrantor.

There was judgment for plaintiff, and defendant and warrantor appealed.

Judgment increased and affirmed.

White Holloman & White, of Alexandria, attorneys for plaintiff appellee.

Hawthorn, Stafford & Pitts and Overton & Hunter, of Alexandria, attorneys for defendants, appellants.

OPINION

DREW, J.

George E. Sears, the plaintiff, vendor of busses, and N.W. Walker, president of the defendant, Interurban Transportation Company, Inc., buyer and user of busses, arranged an automobile trip into Mississippi for the purpose of establishing a bus line in that state and with the view of Sears selling the defendant company the busses it would use in that venture. Accordingly, about noon of February 19, 1928, Mr. Walker left Alexandria, La., in a Chrysler coupe belonging to the defendant, and drove to Natchez, Miss., where, by prior understanding, he met the plaintiff. About the hour of 4:30 the following afternoon, with Walker at the wheel, they drove the Chrysler 117 miles to Jackson, Miss., arriving there at about 8:15 p. m. The following morning, with Walker driving, they proceeded as far as Hattiesburg, Miss., where they both got out of the car. On resuming the journey, plaintiff took the wheel, to relieve Walker of the strain of driving. Sears had driven the car 12 or 15 miles out of Hattiesburg, with New Orleans as the ultimate destination, when he reached the summit of a hill, the descent of which stretched before him approximately 700 yards. As he proceeded down the hill, he observed, parked about the bottom of the descent, a Ford automobile, standing on its left, or wrong side of the road, and apparently deserted. When within a distance of 150 feet from said Ford car, plaintiff, having eased over to the left of the center of the road, in order to pass the Ford, the Ford started, and proceeded towards its right of the road. Sears had reduced his speed from 35 miles an hour, at the summit of the hill, to approximately 25 miles an hour, at the time the Ford started up.

Plaintiff turned the car to the right, to miss the Ford, and headed towards the embankment, which was 6 or 7 feet high at that point of the road, and, to avoid going off the embankment, he turned the car sharply towards the left again, and headed towards the Ford. In order to miss the Ford, he headed it again towards the right, and succeeded in passing the Ford without hitting it. He again turned to the left and then to the right at least twice, after passing the Ford, each time going perilously near the embankment on each side. Finally the right rear wheel went over the embankment, and the car traveled practically sideways for a distance of 20 or 30 feet, when it turned completely over, and righted itself on all four wheels.

Plaintiff was seriously injured in this accident, and instituted this suit against the defendant for the sum of $ 9,500, alleging that the car he was driving was the defendant's car, and that it was defective in its steering gear, or in some manner that affected the steering, that the defendant knew of the defect, but that plaintiff did not know of it prior to the accident, and that the defect was the cause of the accident.

Defendants deny that the car was defective as alleged, and aver that, if there was any peculiarity about the car, it was known to plaintiff; they deny negligence on the part of defendant, Interurban Transportation Company, Inc., and plead contributory negligence on the part of plaintiff, in that he was driving at a reckless rate of speed going down hill, where the car was likely to skid in loose gravel, and in approaching a car parked on the wrong side of the road at an excessive speed.

Defendant Interurban Transportation Company, Inc., called its insurer, Union Indemnity Company, in warranty, to defend the suit.

The warrantor urges the same defense as the defendant against the plaintiff, and denied the right of the defendant to hold it liable on the policy.

The case was tried without a jury, and the lower court rendered judgment in favor of plaintiff in the sum of $ 5,000, from which judgment both defendant and warrantor have appealed.

This particular car had been in a wreck in December, and some part of the steering apparatus had been damaged, which was fixed by defendant and paid for by warrantor herein, and the day before this trip Walker, president of the defendant company, had told plaintiff that the car did not steer properly, that the steering gear was not in proper shape, and that he would either have the car fixed or would bring his wife's car on this trip. The car was worked on by defendant's mechanics the evening before the trip, and the repairs to the car amounted to putting what are known as "shims" in the front axle. The "shims" were put in to prevent the car from "shimmying" but caused the car, when making short curves, to turn too quickly, to be too quick in action. They did not have any effect of this kind in ordinary driving or in taking an ordinary curve, but that in short, quick turns, as were necessary at the time of the accident, the car would turn too quick; that is, go too far to the right or left, as the case might be.

When Mr. Walker left Alexandria in the car, he was told by his mechanics that the car had been fixed, and he had reason, at that time, to believe the car was in good shape; but he testifies that, before he reached Natchez, he discovered that there was a peculiarity about the steering; that the car cut quickly, more so than the ordinary car, and cut quicker than it did before the mechanics worked on it. He attributed this peculiar steering to the fact that, in order to remove the "shimmy" from the wheels, the axle had been "shimmed" up; in other words, they had put some pieces of tin, or something of the kind, between the axle and the spring, which would give the axle more pitch, and that this naturally makes a car respond more quickly. He said he did not know whether you could consider it tricky or not, but it might be; that it was peculiar in a way; that it cut quickly.

The fact that the car would cut too quick on a sudden turn, is shown conclusively by witnesses for both plaintiff and defendant.

This was known to Mr. Walker, who did not inform the plaintiff of this peculiarity of the car. Plaintiff had never driven this car before, and had no knowledge of its defects or peculiarities.

The uncontradicted testimony of Sears is as follows:

"Q. What, if anything, did Mr. Walker say about the steering gear being defective or out of line?

"A. He didn't say anything about it.

"Q. What objection, if any, did he make to your taking the wheel?

"A. Well, as we came out of the barbershop of the Hattiesburg hotel the car was parked directly in front, and I walked around to the driver's side, and Mr. Walker said: 'You better let me handle it,' and I said, 'Well, you are tired, been driving, and I know these roads thoroughly'; because previously that was my territory, and I had been up and down the road a number of times.

"Q. Did he make any objection to your taking the wheel, other than that?

"A. No, sir.

"Q. Say anything further about the car steering badly or improperly?

"A. No, sir.

"Q. Did he at any time caution you as to driving?

"A. No, sir."

Mr. Walker's testimony on this point is interesting:

"Q. Haven't you driven with Sears a good many times before?

"A. Well, I had driven with Mr. Sears some before; don't know just how many times.

"Q. Your hesitancy in his taking the wheel this time, was that just normal hesitancy, or wasn't it because you thought the car tricky or unusual?

"A. Well, I couldn't hardly say. I suppose I had some feeling about the car; the particular car.

"Q. Didn't you think it was more dangerous than usual to drive this car?

"A. Well, with a car turning quickly at a touch that way, it would probably be more dangerous for him than it would be for me.

"Q. Well, didn't you feel that when he took the seat; wasn't that the reason you hesitated about that?

"A. Well, I had some feeling along that line, and would naturally feel that way if any one took the car to drive it.

"Q. Didn't you feel more than usual at that time?

"A. I had a hesitancy about letting him drive it, but object. I didn't want him to drive it, but as I remember, I didn't chime in with him when he agreed to drive it.

"Q. You didn't call his attention to the cutting too far or responding peculiarly as you state?

"A. No, sir.

"Q. You didn't call his attention to the peculiarity of the car, did you?

"A. No, sir--I didn't."

Plaintiff was an experienced automobile driver, and defendant contends that he had been driving the car 12 or 15 miles and had watched Walker drive for 200 miles on this same trip, and therefore he should have discovered the peculiarities of the car. Sears states that he had noticed no peculiarity in the steering until the occasion came to cut suddenly; and Walker testified as follows:

"Well, I don't think there was anything noticeable about the car not steering properly, because we had no chance of anything that looked like an accident."

Defendants contend that the testimony of Mr. Walker should be taken with caution, for the reason that his liability is fully protected by the insurance company and he and plaintiff are good friends. This might be...