Tarleton-Gaspard v. Malochee

• Decision Date: 23 March 1931
• Docket Number: 13,578
• Court: Court of Appeal of Louisiana — District of US
• Parties: TARLETON-GASPARD v. MALOCHEE ET AL

133 So. 409

16 La.App. 527

TARLETON-GASPARD v. MALOCHEE ET AL

No. 13,578

Court of Appeals of Louisiana, Orleans

March 23, 1931

Rehearing Refused May 11, 1931.

Writs of Certiorari and Review Refused by Supreme Court June 2 1931.

Appeal from the Civil District Court, Parish of Orleans, Division "C." Hon. E. K. Skinner, Judge.

Action by Mrs. Lula Tarleton-Gaspard against Henry J. Malochee et al.

There was judgment for plaintiff and defendants appealed.

Judgment reversed in part and amended and affirmed in part.

Milling Godchaux, Saal & Milling (Robert E. Milling and Lawrence K Benson, of counsel), of New Orleans, attorneys for plaintiff, appellee.

Arthur A. Moreno and Gordon Boswell, of New Orleans, attorneys for Mr. and Mrs. Leo B. Bisso, defendants, appellants.

Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for Henry J. Malochee, defendant, appellant.

John D. Miller, of New Orleans, attorney for Buckmaster-Luck-Malochee, Inc., defendant, appellant.

OPINION

HIGGINS, J.

Mrs. Lula Tarleton-Gaspard brings this suit against Henry J. Malochee, Mrs. Leo B. Bisso, Leo B. Bisso, and Buck-master-Luck-Malochee, Inc., in solido, claiming damages for personal injuries in the sum of $ 75,000, alleged to have resulted when Mr. Malochee, in attempting a avoid a collision with a Peerless seven-passenger sedan driven by Mrs. Bisso, drove his Buick sedan upon the sidewalk of the intersection of St. Charles avenue and Lowerline street, this city, where the plaintiff was standing, and crushed her against an oak tree. The accident occurred on the uptown-lake sidewalk on October 19, 1929, about 7 o'clock p. m.

Plaintiff alleges that Mr. Malochee was at fault in operating his car at a rate of speed in excess of that permitted by article 2, section 1, subsection 1, paragraph C, of the traffic ordinance of the city, No. 7490, C. C. S., hereinafter also referred to as the traffic ordinance, and also in that the brakes of the car were defective.

The petition also avers that the Buick car belongs to Buckmaster-Luck-Malochee, Inc., and was being operated by Mr. Malochee, its officer, agent, and employee, within the scope and during the course of his employment.

The allegation of negligence on the part of Mrs. Leo B. Bisso is that she violated article 1, section 1, subsection 7, paragraph D, of the traffic ordinance, by proceeding across the neutral ground of St. Charles avenue without bringing her car to a stop and sounding her horn, so as to give approaching automobiles an opportunity to stop.

The petition further charges that Leo B. Bisso is the owner of the car that his wife was driving, and that it was being operated as a family car, with his consent.

Plaintiff also alleges that the joint and concurrent negligence of the defendants was the proximate cause of her injuries, and that the case is one falling within the doctrine of res ipsa loquitur.

Mr. and Mrs. Bisso filed separate answers, each denying liability, and averring that Mrs. Bisso brought the Peerless sedan to a full stop on the neutral ground while the Malochee car was three-quarters of a block away, and that she had completed the turn into St. Charles avenue and had advanced nearly a half block when the Buick car crashed into the plaintiff, and further setting up that the accident resulted from the negligence of Mr. Malochee, first, in driving at an excessive rate of speed; second, in driving too near to the neutral ground on the wrong side of the roadway; third, in failing to maintain a proper lookout; and, fourth, in operating the automobile with defective and inadequate brakes.

Mr. Malochee denied liability, and averred that St. Charles avenue was a right of way street under the provisions of article 1, subsection A, paragraph 7, of the traffic ordinance; that he was operating his car in a careful and lawful manner; that the accident was caused by the failure of Mrs. Bisso to observe the provisions of article 1, section 1, subsection 7, paragraph D, of the ordinance, which required her to stop, sound her horn, and give approaching traffic an opportunity to stop, before obtaining a right of way to leave the neutral ground and enter the lake side roadway of St. Charles avenue; that the proximate cause of the accident was the negligence and carelessness of Mrs. Bisso in suddenly leaving the neutral ground and entering the roadway directly in front of Mr. Malochee's car, which compelled him to sharply turn the Buick car to the right and run upon the sidewalk, injuring the plaintiff. Mr. Malochee further avers that he was using the car for his own personal purposes and not for any business of Buckmaster-Luck-Malochee, Inc.

Buckmaster-Luck-Malochee, Inc., admitted the ownership of the car, that Mr. Malochee was its officer, but denied that he was using the car in the course of its business, and averred that he was upon an errand of his own, further defending on the ground that Mr. Malochee was without fault and that the accident was caused by Mrs. Bisso in suddenly driving from the neutral ground into the lakeside thorough-fare of St. Charles avenue, in violation of the city traffic ordinance.

The jury returned a verdict in favor of plaintiff and against all of the defendants in solido in the sum of $ 27,500. Motion for a new trial was overruled, and all of the defendants appealed.

The transcript is so voluminous that it is impracticable to narrate the evidence of the witnesses of the respective parties to the litigation. We shall, therefore, give our appreciation of the facts as we gather them, after a careful review of the record.

We are impressed with the sincerity and good faith of the witnesses in their effort to tell truthfully what they saw, but there are the usual discrepancies in their testimony, due to the fact, we believe, that they observed the events leading up to accident and the accident from different positions and under different circumstances.

While the plaintiff alleged a cause of action under the doctrine of res ipsa loquitur, particularly as against Mr. Malochee and Buckmaster-Luck-Malochee, Inc. (Mercer et al. v. Rosenblath, 156 La. 249, 100 So. 414; Dotson v. La. Central Lumber Co., 144 La. 78, 80 So. 205; Lykiardopoulo v. N. O. & C. R. Lt. & Power Co. et al., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976; Scott v. Checker Cab Co., Inc., 12 La.App. 598, 126 So. 241; Olagues v. Pelican Ice Co., 11 Orleans App. 332; Hatcher v. Burlett et al., 11 La.App. 129, 119 So. 748; Bailey v. Fisher, 11 La.App. 187, 123 So. 166; Central Glass Co. v. Heiderich, 6 Orleans App. 336), in presenting her case in chief she produced evidence tending to show that St. Charles avenue is a boulevard with a neutral ground in the center, on which are located double street car tracks, and having paved roadways on each side, the riverside roadway being used by traffic going towards Canal street and the lakeside thoroughfare by vehicles going towards Carrollton avenue; that Lowerline street is paved and crosses St. Charles avenue at practically a right angle; that on the evening in question, while standing on the sidewalk on the uptown-lake corner of Lowerline street and St. Charles avenue, waiting for a friend who was expected to arrive on the St. Charles Belt street car going uptown, her attention was directed to an automobile moving uptown on the lakeside thoroughfare of St. Charles avenue, at an excessive rate of speed; that, as this automobile approached the intersection of Lowerline street, the lights of Mrs. Bisso's Peerless sedan, which was being driven on Lowerline street in the direction of the lake, flashed across the sidewalk into plaintiff's eyes, as it turned to the left in order to proceed up St. Charles avenue; that about the same time the lights from the Malochee car practically converged with those of the Bisso car, and in the next instant the Malochee car had swerved from about the lower side of the intersection of Lowerline street diagonally across the intersection, mounting the sixinch curb of the sidewalk and crushing Mrs. Gaspard against a large oak tree situated several feet back on the sidewalk; that bystanders extricated her and summoned an ambulance, in which she was taken to the Charity Hospital for treatment.

The plaintiff's evidence further tended to show that Mr. Malochee was operating the Buick sedan at a rate of speed in excess of 25 miles an hour, which was the maximum speed allowed by the city traffic ordinance, and that the brakes of the Buick car were defective; and that, as far as the Bisso car was concerned, the driver of it had failed to observe the provisions of another section of the ordinance which required Mrs. Bisso to stop her car and blow her horn in order to warn approaching automobiles, thus affording them an opportunity to stop, before she could gain the right of way to leave the neutral ground to cross the street or turn into it. In short, the plaintiff made out a prima facie case of joint and concurrent negligence as against the defendants.

Mr Malochee then offered, besides his own, the testimony of several witnesses, two of whom saw the accident, tending to show that he was operating his car at a rate of speed not in excess of thirty miles an hour; that he observed the Bisso car as it slowly entered and crossed the neutral ground of St. Charles avenue, when he was about a half block from it; that he did not retard his speed because he felt that the Bisso car would stop at any moment, and that he was within 15 feet of it when he realized it was not going to stop; that he first attempted to sway to the left, and then suddenly swerved to the right, in an attempt to avoid striking the Bisso car, which had just about completed the turn; that, as a result of the sudden appearance of the Bisso car...