Stamps v. Henderson
| Decision Date | 04 February 1946 |
| Docket Number | 6888. |
| Citation | 25 So.2d 305 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STAMPS v. HENDERSON et al. |
Rehearing Denied March 4, 1946.
E W. & P. N. Browne, of Shreveport, for appellants.
Campbell & Campbell and David W. Thomas, all of Minden, for appellee.
Plaintiff's daughter, Mary Elizabeth, aged nine and one-half years suffered physical injuries when she was run into and knocked down by the automobile of defendant, Tom Henderson, on Highway No. 80, in the western part of the city of Minden Louisiana. The car was going westerly. Henderson was operating it. He was accompanied by his wife and daughter, Mrs. B. L. Chappel. The accident occurred on a tangent that begins at the westerly end of a gradual upgrade, right-hand curve. The concrete portion of the road is 20 feet wide. There are no sidewalks on either side of the road about the locus of the accident, but on the north side thereof, opposite the point of collision and extending westerly, there is an uneven gravel shoulder of irregular width used by pedestrians. The little girl came from this side of the road immediately prior to being injured. From the locale of the collision, east and west, for several hundred feet, the vision of a motorist is unobstructed.
It is alleged that immediately before attempting to cross the highway, plaintiff's daughter waited on the north shoulder thereof for traffic conditions to warrant doing so; that for this time she was in full view of motorists going westerly for one-fourth of a mile; that defendant, Henderson, saw or should have seen the child for this distance east of the point of collision; that when she entered upon the concrete defendant was a considerable distance away and had ample time and opportunity to bring his car under such control as would have made it possible to avert the collision regardless of the subsequent movements of the girls, or either of them.
Plaintiff instituted this suit against Henderson and the carrier of insurance on his car, Home Indemnity Insurance Company, to recover damages on behalf of his minor daughter and for physician's bill and hospital expenses incurred in treating her for the injuries caused by the collision. The action is buttressed upon the alleged negligence of Henderson in the operation of his car in the following particulars, to-wit:
1. Driving at an excessive and unwarranted rate of speed;
2. In not keeping a proper lookout for others rightfully using the highway;
3. That he failed to reduce the speed of his car and to maintain such control of it that would enable him to avert running into the child after the saw her upon the highway ahead of him; that he failed to observe that degree of care and caution required of him by law after seeing the child when near to and upon the highway.
Defendants admit the accident and some injury to plaintiff's daughter therefrom, but deny that it occurred because of any negligence of the driver of the car. They aver that the car was being driven at a reasonable rate of speed and when it reached a point where the child was only a few feet from the front end thereof, she ran or jumped suddenly and without warning in front of the car at a time when it was impossible to avoid colliding with her. In the alternative, it is pleaded that the collision occurred from the girl's own contributory negligence and for that reason no recovery can be had on her behalf. From a judgment for plaintiff defendants appealed.
The injured child lived with her parents whose home at the time of the accident was south of the highway and easterly from where the accident occurred. Her mother had directed her to go to a grocery store on the north side of the highway, west of the locale of the accident, and purchase some onions. She had made the purchase and was returning home when injured. From the grocery store she followed the shoulder of the road easterly. Just before attempting to cross the road she observed a girl friend in her parents' yard adjacent to the road's shoulder. She made a few steps to her left and engaged this friend in a brief conversation. When this had ended, she resumed her journey homeward. She traveled at an angle over the shoulder to the edge of the concrete and then attempted to cross over. She testified that when she had gotten to about the center of the concrete she saw a car on her right coming toward her; that she stepped back to allow this car to go by, and then looked westerly for other traffic, and, quoting her testimony,--'about that time I turned around and the car hit me'. She further testified that before she started across the road she looked to her left (easterly) for traffic and saw none. She was not asked whether she walked or ran toward the road after the conversation with the other girl cased, and, therefore, gave no testimony on the subject.
Immediately prior to the collision defendant's car was going at a speed not in excess of 25 miles per hour, keeping about two feet from the north curb. The little girl was struck by the bumper's right end. She was knocked slightly forward and fell horizontally across the road with her head near its center. The car was stopped about two feet from her body. The femur of the right leg was broken just above the knee. There were no other serious injuries.
Besides the injured girl, Henderson and Mrs. Chappel are the only witnesses to the child's movements immediately prior to the accident. Mrs. Henderson was riding beside her husband but was engaged in entertaining Mrs. Chappel's baby, who was sitting in her lap. She first observed the little girl at moment of impact.
Mr. Henderson admits that he first saw the two girls while they were in conversation approximately 100 feet from him, and some 20 or 30 feet from the edge of the road. He did not sound the car's horn as they were then in a place of safety and he assumed that they would remain so until he passed. However, he says: 'She came on down and gradually came to the edge where the walk abuts the concrete * * * but, she came on and she was moving fast.' He also testified that when the child got to the edge of the concrete his car was from 25 to 30 feet from her. He then forcefully applied the brakes, which were efficient, but the car did not skid. The impact was not violent. This is borne out from the fact that the child was not knocked very far, was not run over nor rendered unconscious. She received no head wounds. Moving at a speed of 25 miles per hour on a dry surface, approximately 30 feet are required to bring a car of the character Mr. Henderson was driving, to a stop. His testimony and that of the child agree as to there having been a car coming from the west that passed the scene of the accident at the moment thereof.
Mrs. Chappel was sitting in the middle of the rear seat and was looking up the road just before the accident occurred. Her testimony substantially corroborates that given by her father.
The learned trial judge, in written reasons for judgment, stated that he was convinced that all the witnesses endeavored to relate the facts of the unfortunate accident as they saw them. We fully concur in this observation. He held that although the injured child was negligent in attempting to cross the road when and where she did, Henderson's negligence was the proximate cause of the accident.
Although exhibiting sincerity in giving her testimony, we think the accident did not occur exactly as the little girl believes and testified it did. It is likely, that after spending a few minutes talking to her little friend, she realized that she had consumed more time than her mother would expect in making the trip to and from the grocery store. This being true, as she left her friend her first thought was to hurry home. We believe she ran or trotted to the road and as she got on the pavement she noticed the car coming from the west. She was traveling diagonally and to avoid running into the moving car in front of her, she turned farther to her left, which caused her to face or nearly face defendants' car. She was not over five feet from the north edge of the pavement when struck. Evidently, when struck, her right leg was ahead of the left one.
Plaintiff contends that there is liability...
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