Vinet v. Checker Cab Co.

• Decision Date: 02 April 1962
• Docket Number: No. 329,329
• Citation: 140 So.2d 252
• Parties: James E. VINET, Individually and for the Use and Benefit of His Minor Child, Elizabeth Ann Vinet, v. CHECKER CAB COMPANY, Clarence J. Loup, New Orleans Public Service, Inc., and Alvin Monson.
• Court: Court of Appeal of Louisiana — District of US

Page 252

140 So.2d 252

James E. VINET, Individually and for the Use and Benefit of His Minor Child, Elizabeth Ann Vinet, v. CHECKER CAB COMPANY, Clarence J. Loup, New Orleans Public Service, Inc., and Alvin Monson.

No. 329.

Court of Appeal of Louisiana, Fourth Circuit.

April 2, 1962.

Rehearing Denied May 7, 1962.

Certiorari Denied June 20, 1962.

Anna Andollina, for plaintiff and appellant.

M. C. Scharff and A. J. Marciante, for Checker Cab Company and Clarence J. Loup, defendants and appellants.

A. R. Christovich and W. W. Ogden, for New Orleans Public Services, Inc., and Alvin Monson, defendants and appellees.

Before McBRIDE, SAMUEL and HALL, JJ.

McBRIDE, Judge.

James E. Vinet instituted this action in tort for his individual account and also on behalf of his minor child, Elizabeth Ann Vinet, against Checker Cab Company and Clarence J. Loup, seeking to recover for medical expenses he expended together with damages for his mental anguish, and for the child's account he seeks damages for personal injuries sustained by her as a result of her having been involved and injured in an accident with a Checker Cab on March 6, 1959, at approximately 8:45 o'clock a.m., on St. Claude Avenue at the intersection of Alvar Street. The New Orleans Public Service, Inc., and Alvin Monson, operator of the bus from which the child had alighted just prior to the accident, are also impleaded as defendants.

After a trial of the case on the merits, there was judgment in favor of plaintiff in his individual capacity for the sum of $1,145.85, representing medical expenditures, and in his favor for the child's account in the sum of $2,500, to compensate for her personal injuries. The judgment runs against the Checker Cab Company and the operator of its cab, Clarence J. Loup. The suit as against New Orleans Public Service, Inc., and its employee, Alvin Monson, was dismissed. Checker Cab Company and Loup appealed; so did plaintiff. Plaintiff also answered the appeal of Checker Cab Company and Loup praying for an increase in the amounts of the judgment.

At the time above stated, Elizabeth Ann Vinet, who was then 6 1/2 years of age, and her sister, Madeline, then aged 13, had alighted from the public service bus at said corner. This intersection is embraced in a 'school zone' and the children were bound for the Washington School; to get to which destination it was first necessary that they cross the roadway of St. Claude Avenue which accommodates traffic traveling downtown. There is conflict in the testimony as to whether the two children started to make the crossing together, but after analyzing the evidence, we believe it to be a fact that Elizabeth Ann broke away from her older sister and started to run across the roadway in the pedestrian lane from the sidewalk curb to the neutral ground.

The intersection in question is controlled by an official semaphore light signal composed of the conventional red and green lights. At the time Elizabeth Ann started her dash, the green light was in her favor, that is, persons or vehicles traversing the intersection in the direction as was Elizabeth Ann had the right to proceed. The red light, of course, was then showing to traffic bound downtown on St. Claude Avenue. Pursuant to such restraining signal, the bus from which the children had alighted remained in its position with its front end adjacent to the pedestrian lane. Next to the bus (or in the middle lane of the roadway) was a 'black car' (the driver of which was never identified), which had stopped at the pedestrian lane pursuant to the unfavorable light signal. Next to the 'black car' was the Checker Cab which was also stopped awaiting a favorable signal. The cab was in the innermost lane, or, in other words, was adjacent to the neutral ground. Elizabeth Ann, therefore, to negotiate the roadway had to make her crossing in front of said three vehicles.

At this point it may be stated that the New Orleans Public Service, Inc., and its employee, Monson, who was in charge of the bus, were made defendants on an allegation based on information and belief that Monson observed the children in front of his bus and gave them a signal to cross St. Claude Avenue. This is alleged to have constituted negligence proximating the accident. There is no evidence whatsoever that the bus driver (since deceased) gave any sign which could be construed as a signal to the children to make the crossing, and, therefore, said two defendants must be eliminated from all further consideration.

The light facing the three stopped vehicles changed to green whilst Elizabeth Ann was somewhere in the roadway. The public service bus did not move. However, the black car in the middle lane immediately started forward on the light change and then was as suddenly brought to a stop, this because Elizabeth Ann appeared in front of it and the stop was made by its driver to avoid hitting the child. Simultaneously with the black car starting forward, the Checker Cab moved ahead and there was contact between the child and the cab. Some evidence shows that the front of the cab hit Elizabeth Ann, but the cab driver emphatically stated the little girl ran into the side of the right front fender of his vehicle and fell to the ground. We will accept this statement as the truth as the cab driver's version would be the most favorable to defendants.

After the driver heard the thud, he came to a stop within four feet. He professes he did not know the child was in the pedestrian lane. He claims that before starting he looked first to his left (or toward the neutral ground) and saw no persons in the roadway. Then he looked to his right (the direction from which the child was coming) and:

'A. Well, I couldn't see much from my right on account of the cars on my right-hand side were parked there.

'Q. But you did look to your right?

'A. I did as much as I could.

'Q. Did the automobile that was next to you do anything at all after the light turned green?

'A. Well, he started and he stopped.'

We feel that the taxicab driver's own testimony convicts him of the grossest kind of negligence. From his testimony it appears clear that he started forward immediately with the black car without making an effective effort to discover what persons or objects might be lawfully on the roadway. When he could not see toward his right, his duty was to wait a sufficient time before starting forward so that any person in the roadway would have the opportunity to attain a place of safety. Had he remained at a standstill a second or so longer, the little girl could have negotiated her crossing with complete safety.

Ordinance No. 828, M.C.S., as amended, provides in part in Div. IV, Sec. 38--42:

'(a) Green alone or 'Go.'--

'(1) Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits, either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.'

Thus, the ordinance controlling traffic in New Orleans makes it the plain duty of a motorist to look and permit any pedestrian in the intersection to clear the crossing before the motorist is privileged to proceed. These provisions are parallel to the jurisprudence of this state and of other jurisdictions.

Our Supreme Court in the case of Belshe v. Gant, 235 La. 17, 102 So.2d 477, 480, said:

'Thus, when the light suddenly turned from red to green in their favor, the present motorists were under a duty, before proceeding through the intersection, to exercise due care to discover any pedestrians already therein in reliance upon the previously red signal inhibiting motor traffic. * * *' The United States Court of Appeals, Fifth Circuit, in Texas Mut. Ins. Co. v. Curtin, 197 F.2d 617 (emanating from Louisiana) states:

'* * * One entering an intersection with a green light is entitled...