Shields v. Succession of Hodge

• Decision Date: 02 June 1930
• Docket Number: 3811
• Citation: 128 So. 530,13 La. App. 546
• Court: Court of Appeal of Louisiana — District of US
• Parties: SHIELDS v. SUCCESSION OF HODGE

128 So. 530

13 La. App. 546

SHIELDS v. SUCCESSION OF HODGE

No. 3811

Court of Appeals of Louisiana, Second Circuit

June 2, 1930

Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. Percy Sandel, Judge.

Action by Mrs. Irene Sims Shields against Succession of W. J. Hodge.

There was judgment for plaintiff and defendant appealed.

Judgment affirmed.

McHenry Montgomery, Lamkin & Lamkin, of Monroe, attorneys for plaintiff, appellee.

Theus Grisham, Davis & Leigh, of Monroe, attorneys for defendant appellant.

OPINION

ODOM J.

On May 4, 1929, between 8 and 9 o'clock p. m., plaintiff was driving her Ford coupe north on Fourth street in the city of West Monroe. At the same time, Wesley Hodge, Jr., the fifteen-year-old son of Dr. Hodge, was driving a Ford roadster west on Mill street. (The two streets intersect at right angles.) The two cars collided at the intersection. Plaintiff was injured and her companion in the car, Mrs. Bynum, was instantly killed. Plaintiff sued Dr. Hodge for damages. Dr. Hodge died before issue joined, and his widow qualified as administratrix of his succession, and the suit was prosecuted against the succession. Plaintiff alleged that the collision was due solely to the gross fault and negligence of young Hodge, driver of the Ford roadster.

The defense is contributory negligence. The trial in the district court resulted in a judgment for plaintiff in the sum of $ 5,231, from which defendant appealed. Plaintiff moved to amend the judgment by increasing the amount.

The record in the case is quite voluminous, but, in the last analysis, the issues are determined by the physical facts and the testimony of the only witnesses present when the collision took place, to-wit, the plaintiff, who was driving her car, young Hodge, who was driving the roadster, and his companion in the car, Coates. Mrs. Bynum, who was in the car with plaintiff, was killed. Other persons who were near the scene heard, but did not see, the collision.

Neither Fourth nor Mill is a right of way street under ordinance or regulation of the city, nor were there warning or stop signs on either. Each is a prominent street and about the same width. The rights and obligations of these motorists at the intersection were therefore equal and mutual. It was the duty of each driver to proceed cautiously and to keep his car under control. This is conceded, but plaintiff, on the one hand, contends she was prudent and cautious and that young Hodge was grossly negligent, lost control of his car, and ran against her after she had entered the intersection; while, on the other hand, defendant contends that the accident was due to the joint negligence of the two.

That young Hodge was driving his car at an unlawful, excessive, and reckless rate of speed, and that, due to his excessive rate of speed, he lost control of it completely, is proved beyond question. He testified that he was running west on Mill street at about thirty-five miles an hour when he first saw plaintiff's car at the intersection, and his companion, Coates, said that he was running about thirty-five or forty miles an hour. We doubt if either knows how fast the car was running. Young Hodge was asked:

"Q. You don't know how fast you were going except what you think about it?

"A. Just averaged it, just cut it open like that all the time everywhere I am going."

In other words, to use the language of the street, he "had it wide open." On his way to the intersection of Fourth and Mill streets, Hodge drove north on Cypress street at fifty-five to sixty miles an hour, according to Coates, and, according to Simpson, made a left turn into Mill street at about twenty miles, and that he appeared to speed up after turning into Mill. When he turned into Mill street, he was two blocks from Fourth street, and went across Third, which is between Cypress and Fourth, without stopping. He therefore had ample time in which to gain full speed. The physical facts clearly indicate that he was going at a high rate of speed when he first saw plaintiff's car enter the intersection. He says he applied his brakes the moment he saw the other car, or rather its lights, at the intersection. The brakes took effect, as shown by the fact that the wheels, or some of them skidded sixty-six feet by actual measurement. The application of the brakes retarded the speed some, of course, yet his car struck plaintiff's with such terrific force that plaintiff's car was knocked, not pushed or shoved, a distance of thirty-three feet over against a light pole at the northwest corner of the intersection and Mrs. Bynum was thrown fifty-eight feet west on Mill street. Coates and others say that the Hodge car hit the other one twice, the second time after it turned around and landed against the light pole.

That plaintiff's car reached the intersection first is likewise well established. The collision took place at or near the manhole which is three feet eight inches north and three feet five inches east of the center of the intersection. The front end of the Hodge car ran against the right side of plaintiff's near the rear end. This indicates that plaintiff's car had, when struck, passed the center of the intersection by approximately its length. Both Hodge and Coates, his companion, say that plaintiff's car reached the intersection first. Coates was asked (page 144 of the record):

"Q. Who got to that intersection first, you or her?

"A. Mrs. Shields did.

"Q. She was there first?

"A. Yes, sir, she was there first."

Hodge gave the following testimony at page 328 of the record:

"Q. Where was Mrs. Shields' car with reference to the right or upper line of Mill Street when you first saw it?

"A. She was coming down about the center of the street I think.

"Q. Then when you first saw Mrs. Shields' car, it was in the center of Mill Street?

"A. From the lights it looked in the center.

"Q. Where was the bumper of her car then, in Mill Street?

"A. Yes, sir.

"Q. And that was the time when you applied your brakes?

"A. I applied my brakes just time I saw the lights flicker."

According to this testimony of Hodge, plaintiff's car was well within the intersection when he saw it, at which time he was more than sixty-six feet from it. It may be that this witness was somewhat confused when he gave the last-quoted testimony, for he was later asked:

"Q. What part of Mrs. Shields' car was in Mill Street when you applied your brakes?

"A. I don't believe she got quite to the intersection of Mill Street.

"Q. How far was she from the intersection?

"A. She must have been a pretty good ways."

This indicates that he did not know. But his testimony as a whole warrants the holding that he thought plaintiff's car was either in the intersection or very near to it when he first saw it--at any rate, much nearer to it than he was.

Plaintiff testified that, before reaching the intersection, she blew her horn, stopped, looked, did not see the Hodge car, then proceeded slowly, her car being in low gear when hit. Her testimony that she gave the horn signal is corroborated by that of Mrs. Julian Cobb, who lived at the second door on Fourth street from the intersection. She said she heard the horn signal and recognized it as plaintiff's, as it had a peculiar sound with which she was very familiar, and that she heard the crash immediately. Hodge admitted that he sounded no alarm before reaching the crossing. The testimony of plaintiff and of Mrs. Cobb that the horn signal was given, and of plaintiff that she stopped, looked, and proceeded slowly, is not contradicted, except by that of Hodge and Coates, who say they do not think she stopped, and who estimated her speed at approximately twenty miles an hour at the moment of the collision. They both stated that they could not be positive as to her speed, nor could they say definitely that she did not stop, as they saw nothing except her lights as they shone on the street. The Hodge car, as already stated, was proceeding at high speed, and must have been a considerable distance away when plaintiff reached the crossing and looked, which accounts for the fact that she did not see it.

As there was no municipal ordinance or regulation giving cars on either of these intersecting streets the right of way, the plaintiff, having reached and entered the intersection first, had the right of way and was entitled to proceed. Such has been the uniform holding of the Courts of Appeal in this state. Johnston vs. Worley, 3 La. App. 675; Borrello vs. Rohrer, 4 La. App. 510; Smyth vs. Hill Stores, Inc., 8 La. App. 246; Marshall vs. Freeman, 10 La. App. 12, 120 So. 414.

In the 10th La. App. case cited supra, and in others, the Orleans Court held that the one entering the intersection first had the right to proceed, even though the car on another street had the right of way.

The rule is stated as follows in a case note found in 21 A. L. R. page 974:

"In the absence of a statute or ordinance regulating the matter, it is a general rule that the vehicle entering an intersection of streets first is entitled to the right of way, and it is the duty of the driver of another vehicle...