Stephens v. Natchitoches Parish School Bd.

• Decision Date: 02 February 1959
• Docket Number: No. 8950,8950
• Citation: 110 So.2d 156,238 La. 388
• Parties: Mrs. Claudia Beth Williams STEPHENS, Plaintiff-Appellee, v. NATCHITOCHES PARISH SCHOOL BOARD, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 156

110 So.2d 156

Mrs. Claudia Beth Williams STEPHENS, Plaintiff-Appellee, v. NATCHITOCHES PARISH SCHOOL BOARD, Defendant-Appellant.

No. 8950.

Court of Appeal of Louisiana, Second Circuit.

Feb. 2, 1959.

Rehearing Denied April 3, 1959.

Certiorari Granted April 29, 1959.

Gahagan & Gahagan, Natchitoches, H. L. Hughes, Jack P. F. Gremillion, Baton Rouge, for appellant.

Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, Arthur C. Watson, Natchitoches, for appellee.

HARDY, Judge.

This is an action in tort which was instituted by plaintiff, Mrs. Claudia Beth Williams Stephens, widow of Searcy B. Stephens, seeking the recovery of damages for the alleged wrongful death of her said husband, individually and for the use and benefit of her minor daughter, Burt Devone Stephens, the only living child born of the marriage between plaintiff and her deceased husband. Defendant is the Natchitoches Parish School Board which brings this appeal from a judgment in favor of plaintiff. The appeal has been answered by plaintiff who seeks an increase in the amount of damages awarded.

This suit was considered by this court on plaintiff's appeal from a judgment sustaining an exception of no right and no cause of action filed by defendant. After hearing on this appeal there was judgment overruling defendant's exception and further judgment overruling pleas of unconstitutionality and prescription, which had also been interposed by defendant, and remanding the case for trial on the merits, La.App., 96 So.2d 396.

The accident which is the basis of this suit occurred at or near the hour of 7:00 A.M. on February 11, 1955, at the intersection of Louisiana Highway 20 (now Louisiana Highway 1) with what is known as the Marco Road, a graveled highway at the time of the occurrence of the accident, which makes a 'T' intersection with the highway from the north. The decedent, Stephens, was driving his 1951 Chevrolet Coupe west on Highway 20 and collided with a 1953 Ford school bus driven by one Sheppard Morris, a Negro school bus operator, allegedly employed by the defendant and acting within the scope and course of his employment at the time, which vehicle was allegedly engaged in making a left turn from its eastbound course on Highway 20 into the intersection of the Marco Road.

Plaintiff alleged that Morris attempted to make a left turn immediately in the path of the approaching Stephens' automobile, which action constituted the negligence which was the sole and proximate cause of the collision. Defendant asserts that the decedent, Stephens, was guilty of such gross negligence as to bar plaintiff's right to recovery of damages, and contends, in support of this conclusion, that the bus was at a complete stop at the time it was struck by the Stephens car, which was not under the proper control of the driver and which was moving at 'such a rapid rate of speed that he was unable to avoid the collision.'

The drivers of the respective vehicles involved were the only eye witnesses to the accident, and the testimony of neither was available on trial of the case, Stephens having died within a few minutes after the collision and Morris having been killed in another automobile accident, which occurred some months later and long prior to trial of this case.

In support of the charges of negligence against Morris, plaintiff relies, of necessity, upon evidence of the physical circumstances surrounding the occurrence of the accident, which circumstances are specifically urged as having established the facts; (1) that the front of the bus had moved across the center line of the highway into the path of the approaching Stephens' car; (2) that the bus was in motion in the course of making the dangerous left turn; and (3) that the windshield of the bus was obscured by dirt and frost to such a degree as to seriously interfere with the driver's vision of approaching traffic, which latter fact is asserted in support of the conclusion that the driver did not see, though he could and should have seen, the approach of the Stephens' car.

The comments made by the district judge upon the facts and conclusions drawn therefrom, as set forth in his written opinion, are quoted as follows:

'In considering the facts as shown by the evidence, one fact seems inescapable and that is that the school bus driver drove his bus into his left lane of traffic in front of oncoming traffic, which in this case was the Stephens car.

'It is here that the accident occurred at the intersection of the Marco road with Highway One and also that a rather severe hill lies a short distance south of the intersection. These factors of necessity must be considered in attempting to arrive at the proximate cause of the accident. Also there must be considered the windshield on the bus that was partially covered with mud and the effect of the early morning sun shining on this windshield as affecting the vision of the bus driver. And lastly, there must be considered the physical evidence surrounding the accident, made even more important because of an almost complete lack of eye witnesses. These physical facts show the point of impact to have been on the Stephens side of the road and further that there was no indication that Stephens had ever put on his brakes.

'The only logical conclusion that this Court can draw from this is that the bus turned so rapidly and so close in front of him that he had no time to try to do anything about it.

'Thus it is the opinion of this Court that the negligence of the bus driver Sheppard Morris was the sole and proximate cause of the accident and that defendant is liable.'

Out examination of the record has led us to a resolution of the facts and a consequent conclusion which are in complete agreement with those found by the district judge, as above set forth. However, in deference to the sincere argument advanced by counsel for defendant, we think it desirable to elaborate some of the material details of the evidence reflected by the somewhat voluminous record.

The Trooper, Dowden, who reached the scene of the accident shortly after its occurrence and before either of the vehicles involved had been moved, testified that the front of the bus was several feet across, that is, to the north, of the center line of the highway. There is considerable conflict in the testimony of the witnesses for the parties litigant on this point, but the only real variance which we find relates to the distance by which the bus had encroached into the lane of travel of the decedent, Stephens. The estimates of this distance by the several witnesses who testified on the point varies from, 'on or just over' the center line, to, 'a number of feet.' We think an attempt to fix any exact measurement of this encroachment would be impossible, but in our opinion there can be no question as to the correctness of the conclusion that at the time of impact the front of the school bus had, by little or much, actually entered the north lane of the highway in the path of the approaching Stephens' car.

There is also a marked variation in the testimony of the witnesses as to the fact of the movement, vel non, of the school bus. Defendant tendered testimony of five Negro children, ranging in age from 12 to 18 years at the time of the accident, who were passengers on the bus en route to their respective schools. Parenthetically, by way of clarification, we interject the observation that although these witnesses were passengers on the school bus they were not eye-witnesses to the occurrence of the accident for, according to their own testimony, none of them saw the Stephens' car until after the collision.

The testimony of these witnesses sharply conflicts as to some of the material facts relevant to the accident. Some testified that the bus was stopped, some that it was slowly in motion, or that they did not know whether it was stopped or in motion. The one witness among these passengers whose testimony quite obviously is principally relied upon by counsel for defendant was one Celia Mae Morris Spencer, a sister of Sheppard Morris, the driver of the bus, and was at the time of trial a married woman, 21 years of age, and at the time of the accident an eighteen year old unmarried high school student. This witness testified that her brother had turned on the directional blinker light signaling a left turn at a distance of more than 100 feet before reaching the intersection; that the lever type stop signal was showing; that the witness herself had thrust out a red flag from the open window to her left of her seat immediately behind the driver; that her brother, Sheppard Morris, had brought the bus to a complete stop at the intersection and that it had so remained for a period of exactly seven seconds, being still in the stopped position before turning at the time of the impact. A considerable portion of the testimony of this witness is so palpably incredible as to discredit her entire testimony, and, indeed, we think this conclusion is so completely justified from a mere reading of her testimony that it is unnecessary to elaborate upon the specific details which render the conclusion obvious.

We find nothing of reliable value in the testimony of these passengers. The zealously urged and sincerely hoped for conclusion advanced in support of defendant's contentions is not justified in the slightest degree by the weight and effect of this testimony. The reasons advanced by Celia Morris for the stopping of the bus, in the position and at the time with respect to which she testified, was that the driver was accustomed to taking on several Negro school children as passengers at this point. This purported reason was not only completely controverted by the testimony of other witnesses but was substantially weakened, if not absolutely destroyed, by subsequent admissions of the witness herself.

We can only conclude, as did the district judge, that the evidence substantially preponderates in favor of the...