Stout v. Lewis

• Court: Court of Appeal of Louisiana
• Writing for the Court: WESTERFIELD, J.
• Citation: Stout v. Lewis, 11 La.App. 503, 123 So. 346 (La. App. 1929)
• Decision Date: 24 June 1929
• Docket Number: 11,680
• Parties: STOUT v. LEWIS ET AL

123 So. 346

11 La.App. 503

STOUT v. LEWIS ET AL

No. 11,680

Court of Appeals of Louisiana, Orleans

June 24, 1929

Writ of Certiorari and Review Refused by Supreme Court November 4 1929.

Appeal from the Civil District Court, Division "A." Honorable Hugh C. Cage, Judge.

Action by John Stout on behalf and for the use and benefit of his minor son, John Stout, Jr., against Dr. John A. Lewis et al.

There was judgment for defendant and plaintiff appealed.

Judgment reversed in part and affirmed in part.

J. C McGee, of New Orleans, amicus curiae.

Wm. A Porteous, of New Orleans, amicus curiae.

Andrew Booth, M. C. Scharff and Eugene Thorpe, of New Orleans attorneys for plaintiff, appellant.

Ivy Kittredge, of New Orleans, attorney for John A. Lewis, defendant appellee.

Miller, Miller & Fletchinger, of New Orleans, attorneys for Christian Hahn, defendant, appellee.

OPINION

WESTERFIELD, J.

Plaintiff sues Christian Hahn and Dr. John A. Lewis in solido, claiming $ 30,000 as damages for physical injuries suffered by his 18-year old minor son, John Stout, Jr., as the result of a collision between an automobile belonging to Hahn, and an automobile belonging to Dr. Lewis. There was judgment below in favor of both defendants dismissing plaintiff's suit. Plaintiff has appealed.

The accident occurred at the intersection of Birch Street and Carrollton Avenue. The Hahn car was driven by Christian Hahn, Jr., the defendant Hahn's minor son, for whose negligence the defendant Hahn is responsible. Sutton vs. Champagne, 141 La. 469, 75 So. 209. It was a 7-passenger Studebaker and was occupied by six young men, three of whom were inside and three outside on the running board, John Stout, Jr., whom, for convenience, we shall hereafter refer to as plaintiff, being one of the three on the running board.

Hahn, Sr., had requested his son to drive the car to his place of business for the purpose of taking him to a prize fight, and, in compliance with that request, the young man left his home about 7:30 p. m., and invited the other young men to ride with him a part of the way. It was the intention of plaintiff and that of the other two young men on the running board to alight from the car near the point where the accident happened, in order to attend a picture show in that vicinity.

The Hahn car had crossed the upper roadway of Carrollton Avenue and the car tracks and had made a three-quarter turn into the lower roadway when struck by the Lewis car. The Lewis car was proceeding along the lower or downtown side of Carrollton Avenue in the direction of the basin, the direction in which the Hahn car intended to proceed after having completed the turn. The impact of the collision was not very severe since the damage to each car was very slight, the Lewis car being repaired at an expense of $ 5. However, it was sufficiently violent to throw young Stout off his balance and on to the pavement, breaking his leg.

After carefully considering the evidence bearing on the question of fault of the drivers of the colliding automobiles, as contained in the voluminous record, we have reached the same conclusion in this regard as the trial judge, and find the Hahn car at fault for the failure of its driver to observe the provisions of the City Ordinance. We refer to Section 7, of the Traffic Ordinance, No. 7490 C. C. S., particularly sub-divisions "c" and "d" thereof, which read as follows:

"(c) On all other streets, and at intersections of right-of-way streets with one another, all vehicles approaching intersecting streets from the left shall give right-of-way to vehicles approaching from the right.

"(d) On streets and avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right-of-way to complete the crossing of the roadway of such street or avenue under the following conditions:

"Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of or turning into the roadway."

It is conceded that the Hahn car did not stop in crossing the neutral ground and did not signal with its horn, but it is contended that the purpose of the quoted provisions of the ordinance is to give the vehicles crossing the neutral ground the right-of-way when the driver observes the precautions referred to, and that the failure of the driver to signal with his horn and stop can have no other effect than to leave the right of way with vehicles approaching the intersection in the roadway. Assuming that the ordinance will bear this narrow construction, its application to the circumstances of this would nevertheless result in a finding of negligence on the part of the driver of the Hahn car, for the reason that it was its duty to have respected the right-of-way of the Lewis car and not dispute the crossing with it.

We are inclined to the view, however, that the intention of the quoted section of the ordinance is to require vehicles on the neutral ground either to sound their horn as a warning of their intention to proceed, or to stop and await the clearing of traffic in the roadway before entering.

We also agree with the trial judge in finding the Lewis car without fault. The evidence concerning his excessive speed is not satisfactory, and, while his testimony indicates that he was somewhat confused, this circumstance is not sufficient to discredit his testimony. He had a right to assume that the Hahn car would observe the city ordinance, and when he discovered the contrary it was too late to stop his car in time to avoid the collision.

There remains for consideration the question of the contributory negligence of the plaintiff. Both defendants have pleaded contributory negligence, but since we have found the Lewis car without fault, it is only of interest in connection with the liability of the defendant Hahn. Article 8, sub-section 2 of the Traffic Ordinance reads as follows:

"No person shall ride on the running board or fenders of a vehicle or hang on or hitch on the rear of any vehicle."

The plaintiff was, therefore, negligent in riding on the running board. Can his negligence be said to be the proximate cause of the accident? Shick vs. Jenevin, 145 La. 334, 82 So. 360; Manceaux vs. Hunter Canal Company, 148 La. 93, 86 So. 665.

In Berry on Automobiles, 6th Ed., Vol. 1, page 480, we read the following:

"A child, even of tender years, who trespasses on the running board or other part of an automobile in the highway, is entitled only to the duty owed to a trespasser; i.e., the duty on the part of the operator not to injure him wilfully or wantonly and the duty to take proper precautions against injuring him after discovering his presence."

But, in this case, the plaintiff was not a trespasser but was a guest of the defendant Hahn, and he was on the running board with the knowledge and consent of the driver of the Hahn automobile. The defendant's relation to plaintiff was that of a private gratuitous carrier. He...