Smith v. Interurban Transportation Company

• Decision Date: 28 January 1927
• Docket Number: 2763
• Citation: Smith v. Interurban Transportation Company, 5 La.App. 704 (La. App. 1927)
• Court: Court of Appeal of Louisiana
• Parties: SMITH v. INTERURBAN TRANSPORTATION COMPANY

5 La.App. 704

SMITH v. INTERURBAN TRANSPORTATION COMPANY

No. 2763

Court of Appeals of Louisiana, Second Circuit

January 28, 1927

Rehearing Refused February 24, 1927.

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

Action by Peter D. Smith, et al., against Interurban Transportation Company, Inc.

There was judgment for plaintiffs and defendant appealed.

Judgment reversed.

Overton & Hunter, of Alexandria, attorneys for plaintiffs, appellees.

Hawthorn & Stafford; L. P. Beard, of Alexandria, attorneys for defendant, appellant.

OPINION

ODOM J.

Plaintiffs brought this suit to recover $ 5,477.00 damages resulting from a collision which took place on May 13, 1925 between a Ford touring car occupied and driven by Mrs. Smith and a passenger bus owned and operated by the defendant company.

There was judgment in the lower court for plaintiffs for $ 753.20 and defendant appealed.

Plaintiffs answered the appeal and ask that the judgment be increased to the amount sued for.

PLEADINGS

Plaintiffs allege that at about 2 o'clock p. m., on May 13, 1925 Mrs. Smith, wife of Peter D. Smith, and her two minor children, left the residence of Mrs. A. M. Wilks located on the Jefferson Highway just outside the limits of Alexandria, for the purpose of returning to their home in Alexandria; that they were riding in a Ford touring car; that the residence of said Mrs. Wilks is on the west side of said highway and that in order to reach the highway she drove her car down a private driveway leading from the residence to and intersecting the highway at right angles; that she drove onto said highway, which at the time was open and unobstructed, and crossed over to the opposite side in order to get on the right-hand side going to Alexandria, the highway running north and south; that after she crossed the highway she turned to the left and straightened her car so as to proceed on north, and while on the proper side of the road, the bus of defendant company carelessly and negligently, and while going at an excessive rate of speed, left its side of the road, which was the right-hand side going south, turned to the left and ran into her car without slacking its speed or giving any warning whatever of its approach; and that before entering the highway she stopped and looked and saw no vehicle approaching, and that she was entirely free from fault or negligence.

The defendant, in answer, admitted the collision, but denied liability on the ground that the collision was due solely to the negligence of Mrs. Smith, the driver of the car, in going upon the highway at a rapid rate of speed without stopping and looking and with utter disregard of the laws of the road.

OPINION

The collision took place just south of Alexandria on the Jefferson Highway. Jefferson Highway runs north and south at that place, is gravelled and is much used for vehicular traffic.

On that day Mrs. Smith with her two small children had visited in the home of a kinsman, A. M. Wilks, whose residence is situated about 200 feet west of the highway. At about 2 o'clock p. m., she with her children, started in a Ford car back to her home in Alexandria. She drove her car east, down the private driveway from the Wilks' residence to the highway. On the west side of the highway and between it and the Wilks' property there is a ditch some three or four feet wide over which there is a bridge. Mrs. Smith says that when she reached the bridge and before entering the road, she stopped her car and looked both ways and saw no vehicle approaching. However, she modified her testimony to the extent of saying that she thought she saw a vehicle of some kind coming down the road but that it appeared to be so far away, some four or five hundred feet, that she thought she had time to cross the highway, turn to the left and get on her side of the road.

She alleged and testified that she was going very slowly and carefully and that she had actually crossed over to the opposite side of the road and was proceeding north toward Alexandria on the right-hand side when the driver of defendant's bus, for some reason, left his side of the road, turned to the left (the bus was going north) and struck her car, which was on the proper side of the road.

As stated, the defendant's bus was going south. It was on the right-hand or west side of the road and was going at twenty-eight to thirty miles an hour. Mrs. Smith went onto the highway from that side. The testimony is clear that at a distance of about sixty feet north of the intersection of the driveway leading from the Wilks' residence to the highway where the collision took place, the driver of the bus swerved it to the left and that by the time it reached Mrs. Smith's car it was to the left of the center of the road.

The right front fender of the bus struck the left front fender of the Ford car and knocked it around, some of the witnesses testifying that the front end of the Ford car was toward the south after the collision. The bus passed on the east side of the car and ran into the ditch on that side of the road and stopped some thirty feet south of the point where the collision occurred.

The driver of the bus explains his movements in this way: He says that Mrs. Smith drove onto the road unexpectedly to him from the side on which he was driving; that he first saw her car when it reached the side of the road; that she was then moving toward the road and that he was then only about sixty feet from her car and could not stop the bus, which weighed about 6500 pounds, in time to avoid the collision; that it occurred to him that the best course for him to pursue was to turn to the left-hand side of the road and if possible run around the front end of the car, that if he ran straight ahead he would hit the car broadside, and that an emergency existed and he used his best judgment.

His testimony in the main is corroborated by that of all the passengers on the bus.

Under such conditions he unquestionably pursued the proper course.

But, according to plaintiffs' theory of the case, the emergency was brought about by the fault and negligence of the driver of the bus in proceeding down the highway at an excessive rate of speed without looking ahead.

We do not think so.

The collision and resulting injury were caused by the carelessness and negligence of Mrs. Smith in driving her car upon the highway from a private side entrance without taking the proper precautions.

Mrs. Smith says she stopped and looked. The testimony is conflicting on the point as to whether she stopped. She says she looked both ways. But in view of the undisputed testimony as to how the collision occurred the conclusion is inevitable that she either did not look at all or that she looked without observing, or else she observed the approach of the oncoming bus and proceeded onto the road under the mistaken conclusion as to its distance from her, or that she proceeded in utter disregard of her own safety.

The accident occurred in broad daylight. From the point where she says she stopped and looked she had a clear and unobstructed...