Smith v. Northern Ins. Co. of N. Y.

Decision Date25 April 1960
Docket NumberNo. 21314,21314
Citation120 So.2d 309
PartiesWoodrow Wilson SMITH, Individually, and for the Use and Benefit of his Minor Child, Woodrow Clifton Smith, v. NORTHERN INSURANCE COMPANY OF NEW YORK et al.
CourtCourt of Appeal of Louisiana — District of US

Guy J. D'Antonio, Emile C. Toups and Bernard J. Tortomasi, New Orleans, for plaintiff and appellant.

Dufour, St. Paul, Levy & Marx, Leonard B. Levy and William M. Lucas, J., New Orleans, for defendants and appellees.

McBRIDE, Judge.

This case is before us on plaintiff's appeal from a judgment dismissing his suit asserting claims for damages arising out of an automobile accident which occurred at approximately 9 o'clock on the evening of November 22, 1956, on Highway U.S. 80 in the State of Alabama, about one mile east of the City of Demopolis. Plaintiff's minor son, Woodrow Clifton Smith, then 17 years of age, was riding as a nonpaying guest passenger in and occupied the right of the front seat of an automobile driven by his uncle, Horace T. Smith. The boy's sister, Henrietta, also a minor, was riding on the back seat of the car. The accident occurred when a large mule weighing about 1500 pounds came from the right and endeavored to get onto the road and there was a collision between the automobile and the animal. The evidence is convincing that as the car passed, the mule, which had been on the narrow shoulder of the road, came into contact with the right side thereof; it does not appear that the front of the car struck the animal.

As a result of the impact Woodrow Clifton Smith received injuries, and this suit is prosecuted by his father individually and on his own behalf to recover medical expenses already incurred and those to be incurred in the future on account of his son's injuries, and to recover damages for and on behalf of the minor for his personal injuries. The petition alleges that the accident resulted solely from the gross and wanton negligence of Horace T. Smith, particularly in the following respects: (1) driving at a rate of speed in excess of that permitted by the law of Alabama; (2) failure to keep a proper lookout; (3) failure to observe the mule in sufficient time to avoid hitting it; (4) in driving his automobile down a hill at an excessive tate of speed in wanton disregard of human life; (5) operating an automobile in a careless and reckless manner. Impleaded as defendants in solido are Horace T. Smith and his liability insurance carrier.

Defendants deny negligence on the part of Smith and affirmatively allege that the accident was caused solely by circumstances entirely beyond his control. As a special defense defendants plead the 'Guest Statute' of Alabama, Title 36, § 95, Alabama Code of 1940. The defendant insurer also specially pleaded all of the terms and conditions of the policy which it had issued Smith and alleged that the limit of its liability thereunder for bodily injury to one person is $10,000. In the alternative, both defendants charge Woodrow Clifton Smith with contributory negligence.

On November 21, 1956, at 6:30 o'clock p.m., Horace T. Smith left New Orleans in his automobile with his aforesaid nephew and niece as passengers therein and drove to Clinton, Alabama, arriving there about 5 o'clock on the morning of November 22, 1956; Smith left Clinton about 9:00 a.m. and drove to Montgomery reaching there about 10:30 a.m., and then returned to Clinton at 3:30 p.m.; he left Clinton at 7:00 p.m. to make the return trip to New Orleans, and after traveling about 70 miles the accident under consideration occurred at 9:00 p.m. The two yound guests were asleep in the car and they know nothing as to how the accident may have happened.

Horace T. Smith is a deaf mute and gave his testimony by dactylology with Rev. Julian S. Grehan acting as interpreter. Smith was never asked to state the rate of speed at which he was traveling and there is no expression in his testimony as to that detail. On cross examination he stated that he did not observe the mule until he was 7 feet away from it when it 'jumped from the ditch'; that his car was descending the hill at the time; and that he applied his brakes when he was 5 feet away from the mule but could not avoid the accident. He claims he made a visit to the scene the next day and observed the body of the mule lying about 40 or 50 feet below the road. However, while still under cross examination Smith made reiteration of his statement that when he first saw the mule it was 7 feet feet away, but he changed his story as to the location of the mule by stating it 'was moving, moving around. * * * In the center of the road.'

The most important witness was officer Emmons of the Alabama Highway Patrol who came to New Orleans to testify at the trial. He investigated the accident after arriving at the scene within a few minutes. He observed the dead mule to the right off the improved portion of the highway; he stated the skid marks left by Smith's car from their beginning to the point of impact measured 71 feet and the length of the skid marks from the point of impact to where the automobile came to rest measured an additional 129 feet. He described the scene as being on a level portion of the highway in a valley between two hills and that the hill which Smith's car had negotiated measured about 300 yeards from its crest to base. No evidence appears in the record as to the degree of the grade of the hill.

Officer Emmons made it perfectly clear that the mule could not 'jump out of this ditch' which he said was from 18 to 20 feet deep and had a perpendicular drop from the outer edge of the shoulder of the road. He gave the width of the shoulder as four feet and was of the opinion a mule would have had no difficulty in standing thereon.

Emmons also stated, that while not an expert, he has some knowledge of the 'sign language' and communicated with Smith by that means during his investigation. According to Emmons a statement was made by Smith that his speed was 50 miles per hour which Emmons says is the maximum permitted by Alabama law. The officer also testified that Smith maintained he did not see the mule until it stepped out into the roadway in front of his car. Emmons stated further that he thought the range of vision of a motorist whose car possessed properly functioning headlights while descending the hill in question would be 300 feet.

Directing attention to the probable speed of his car, we think it evident that Smith was traveling in excess of the legal speed limit of 50 miles per hour while descending the 900 foot hill. First, there is the fact that the skid marks measured 200 feet from beginning to end whigh goes far to demonstrate that the automobile travelled at high speed. According to the table or chart accompanying the article 'Mechanics of Control and Lookout in Automobile Law' by H. B. Barret, a recognized authority, 14 T.L.R. 503, the net braking distance (exclusive of reaction time) required to bring an automobile traveling at 50 miles per hour to a complete stop from the time the brakes are applied is 138.7 feet under average conditions and a net braking distance of 199.8 feet is necessary when the car is traveling at 60 miles per hour. It is not unusual for a court to resort to a speed and stopping distance chart such as is before us in matters of this kind to resolve a question of a motorist's speed. Some cases decided by courts of this state in which such charts have been referred to and cited are: Hebert v. Spano, La.App., 101 So.2d 713; McCandless v. Southern Bell Telephone & Telegraph Co., La.App., 101 So.2d 704; Frazier v. Muse, La.App., 98 So.2d 693; Guillory v. Allstate Insurance Company, La.App., 96 So.2d 866; Yates v. Booty, La.App., 94 So.2d 44; Ingouf v. United States Fidelity & Guaranty Company, La.App., 92 So.2d 794; Crosby v. Brown Oil Tools, Inc., La.App., 92 So.2d 115; Leonard v. Holmes & Barnes, Ltd., La.App., 84 So.2d 109, affirmed 232 La. 229, 94 So.2d 241.

Second, in addition to the damaging import of the chart referred to, there is testimonial evidence in the record leading to a conclusion that Smith was driving at a high rate of speed. Henrietta Smith, who sat on the rear seat, stated that from time to time, once shortly before the accident, she glanced at the speedometer of the car and that it registered between 60 and 70 miles per hour. Such testimony tends to show circumstances from which it may be inferred such speed was continued to the time of the accident. Moreover, Simmons, the highway patrolman, testified that he stopped Smith for speeding at night in the same locale a few months previously and had given him a warning that the speed limit was 50 miles per hour and not the 60 mile per hour rate at which he was traveling.

Another pertinent aspect of the case is whether somnolence could have affected Smith's ability to prudently operate his automobile on the night the accident occurred. His two passengers were asleep and we do not doubt for a moment Smith himself was in need of rest. According to a calculation made from Smith's testimony, the accident occurred about 26 1/2 hours after the journey began at New Orleans and during that period Smith slept for a total of only 4 1/2 hours, inclining us to a strong belief his vision and reflexes were not as acute as they should have been. This is best demonstrated by the fact he did not become aware of the mule on the narrow shoulder until he was 71 feet before reaching it because at that point he applied the brakes, when an ordinarily alert person would have been able to sight the animal much sooner within the 300-foot range of the illumination afforded by properly functioning headlights. That the mule was located on the narrow shoulder of the road all the while cannot be doubted as it could not have suddenly emerged from the 18 to 20 foot ditch as first claimed by Smith.

The question of liability vel non is to be answered by the...

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