Storey v. Parker
| Decision Date | 20 April 1943 |
| Docket Number | 2520. |
| Citation | 13 So.2d 88 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STOREY v. PARKER et al. |
John C. Hollingsworth, of New Orleans, for Parker.
Taylor Porter, Brooks & Fuller, of Baton Rouge, for A.-C Service.
Jos A. Loret and Dudley G. Couvillon, both of Baton Rouge, for plaintiff.
Breazeale Sachse & Wilson, of Baton Rouge, for General Motors Sales Corporation.
This is a suit brought by Captain Norris G. Storey against Wesley G Parker, a resident of California, and the A.-C. Service Station, Inc., of Baton Rouge, in which he seeks to obtain judgment against both defendants, in solido, in the sum of $50,586.36 for damages for personal injuries sustained by him when he was run over by an automobile belonging to Parker and which had just been left with the Service Station for oiling and greasing and other attention.
The undisputed facts may, as briefly as possible, be stated as follows: Parker, who lives in Los Angeles, California, after having had a new model Oldsmobile demonstrated to him by a local dealer, agreed to purchase one, delivery to be made at Lansing, Michigan. Accordingly, he and Mrs. Parker went to Lansing, took delivery of the car and proceeded from there on a trip which took them through several eastern and southern States until they reached Baton Rouge, where Mr. Parker decided that it was time to have the car greased and oiled and the oil in the crankcase changed. He used Texaco products and noticing a sign advertising them at the A.-C. Service Station at the northwest corner of Lafayette and Florida Streets, drove into one of the lanes of the driveway, stopping his car near the gasoline pumps which stand on a small raised concrete platform separating the two lanes of the driveway. The driveway runs diagonally across the east end of the station, entrances opening on both Lafayette and Florida Streets. While right at the place where the pumps are located, the floor is level, there is an incline or gradual slope on both ends. Mr. Parker entered on the west side lane of the driveway, and right at the left of that lane, abutting the side walk on Florida Street, is a concrete column supporting that end of the building.
The Parker car was equipped with what is referred to as hydra-matic drive which is a combination of a high-efficiency liquid coupling and a fully automatic transmission. It eliminates gear shifting and pressing of the clutch. It had been fully tested but may be said to have been something of an innovation in the operation and driving of an automobile at the time the accident we are concerned with happened.
As Mr. Parker brought his car to a stop he inquired of the station manager, D.L. Price, how long it would take to attend to what he wanted done to his car, and upon being told that it would require about an hour, he got out, walked around to the other side and assisted his wife in getting out also. He had not turned his motor off however and neither did he shift the direction control lever which, at that time, was in the position referred to as "Hi". Besides Price, there were two negro attendants near the car at the time waiting to get the order which Price had to write out on a pad, taken from the office immediately adjoining the driveway, for what the service would be. Neither to Price, nor to the two attendants did Parker convey any information whatsoever that his car was equipped with hydra-matic drive or that he had left the motor running with the direction control lever in "Hi".
A very short moment after Mr. and Mrs. Parker had left the car standing in the driveway, probably a minute or so, it started to move without anyone being in it. One of the negro attendants, John Cooper, had placed his hand on the door knob to open it but the car was in motion before he could do so. As it moved forward, he jumped on the running board endeavoring to get his hand inside in an effort to turn off the ignition switch, but the speed of the motor accelerated and the car moved on faster. The negro boy was knocked off as it brushed by the concrete column on its left side and from there moved forward into Florida Street, running over the plaintiff and finally landing across the street where the motor was killed after it had struck another car parked on that side.
Plaintiff claims that the accident and his resulting injuries, which were severe, was due to the negligence of both defendants. Negligence is charged against Parker in two respects: (1) In driving a car equipped with hydra-matic drive which is an innovation in automobiles with which neither the general public nor the general run of automobile mechanics and service station employees are familiar, and in leaving it standing with the motor running and the direction control lever in "Hi" when there is danger of a car so equipped starting and continuing to move forward of its own accord provided the control lever is left in any position other than neutral; and (2) in failing to inform any of the service station attendants that his automobile was fitted with such an equipment, which it was his duty to do, particularly as hydra-matic driving is an innovation which has not been perfected to the extent where reliance can safely be placed on its performance in the manner in which it is supposed to perform. The negligence charged against A.-C. Service Station, Inc., is that its employees permitted the motor of the automobile to continue to run and the direction control lever to remain in "Hi" while the car was unattended by any one in a position to control the same. It is further charged that John Cooper, the negro attendant, was negligent in grasping and pulling the throttle of the car which caused its speed to greatly accelerate after it started to move, for which negligence his employer is legally responsible.
Both defendants denied that they were guilty of any negligence which caused or contributed to the accident. The A.-C. Service Station, Inc., pleaded in the alternative that plaintiff was guilty of contributory negligence which barred his recovery. This plea, however, is no longer being urged and we assume that it has been abandoned. The defendant Parker called in warranty the General Motors Sales Corporation, manufacturer of his Oldsmobile automobile, to which call an exception of no cause of action was filed and later overruled. Answer was then filed in which it is denied that there were any defects in the automobile for which the manufacturer could be held liable for damages growing out of the accident which was alleged to have happened.
Although plaintiff did not specially allege it in his petition, he invoked in both the district court and in this court, the rule of res ipsa loquitur.
After a lengthy trial in the district court, judgment was rendered in favor of the plaintiff against both defendants, in solido, in the sum of $10,574.29. The call in warranty against General Motors Sales Corporation was dismissed. Both defendants have appealed and plaintiff has answered the appeals asking for an amendment of the judgment by increasing it to the sum of $15,574.29.
There is no doubt that Mr. Parker had been fully informed in regard to the hydramatic drive on his new automobile. He had driven a demonstration car equipped with it, in Los Angeles, had been instructed at the factory and had available all the written instructions concerning the same. Among others, these instructions called particular attention to what was to be done in stopping the car. Specifically it is stated under paragraph (2): The same instructions were printed on a card on the sun-vizor directly in front of the driver's seat and on the steering wheel, the four slots for placing the direction control lever in position are clearly identified and designated on a plate as follows: Notwithstanding his experience and all these instructions, cautions and warnings, when Mr. Parker drove into the service station on the morning of the accident he admittedly got out of the car leaving the motor running and the direction control lever in "Hi". Neither, as he admits, did he inform the service station manager or any of the attendants, that his car was equipped with hydra-matic drive and that he had left the motor running and that the control lever was in "Hi". From that moment on, instead of ourselves elaborating on the facts heretofore mentioned, we take the liberty of quoting from the written opinion of the learned district judge who has carefully and studiously analyzed the testimony found in the record:
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