Weitkam v. Johnston
| Decision Date | 20 January 1942 |
| Docket Number | 17606. |
| Citation | 5 So.2d 582 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | WEITKAM et ux. v. JOHNSTON. |
Rehearing Denied Feb. 16, 1942.
Appeal from Civil District Court, Parish of Orleans; Harold A Moise, judge.
Solomon S. Goldman, of New Orleans, for appellant.
Robert A. Ainsworth, Jr., of New Orleans, for appellees.
At about 10:30 o'clock on the night of January 10th, 1940, Mr. and Mrs. August Weitkam were riding in an automobile driven by their major daughter, when, after it had been brought to a sudden stop by her, it was struck from the rear by another car driven by Alton Johnston. Mrs. Weitkam sustained personal injuries and she claims from Johnston $1,000. Mr. Weitkam seeks recovery in the sum of $348.95 for the damage sustained by his automobile, and in the sum of $25 for medical expenses made necessary by his wife's injuries. Johnston, by reconventional demand, prayed for judgment against August Weitkam for $143 for the damage sustained by the Johnston car.
There was judgment below in favor of Mr. Weitkam for $348.95 and for Mrs. Weitkam for $200. In the judgment no mention was made of the reconventional demand, the effect being that it must be considered as dismissed. Johnston has appealed.
Petitioners allege that their car, driven by their daughter, was proceeding out So. Carrollton Avenue, and that as it reached a point nearly in front of their residence, which was No 1817 So. Carrollton Avenue, Miss Weitkam, who intended to turn into the driveway, was compelled to bring it to a stop near the neutral ground because there was other moving traffic going in the same direction, which was passing to her right. Petitioners allege also that while their care was standing still in its position near the neutral ground, it was struck suddenly by the Johnston car, which was proceeding in the direction into which their car had been proceeding, and they charge Johnston with negligence in the following particulars:
(a) In not keeping his car under proper control;
(b) In not keeping a proper lookout ahead for vehicles in front of him;
(c) In striking an automobile, stopped and in a stationary position in front of him; and
(d) In speeding in violation of Commission Council Ordinance No. 13,702 at a rate of speed approximately 50 miles per hour.
Johnston denies all responsibility for the accident, stating that he was not aware of the presence of the Weitkam car until another automobile ahead of him, and behind the Weitkam car, suddenly swerved to the right to avoid the Weitkam car, and thus exposed that car so that for the first time he saw it when it was immediately in front of him and so near that he could not avoid it, though he made every effort to do so. He states also that he could not turn to his right and avoid the Weitkam car ahead as the intervening car had done. He averred that he, himself, was without fault and that the accident was due entirely to the fault of Miss Weitkam, "who was acting at the time as the agent of plaintiffs and that because of her negligence * * * plaintiffs are barred of recovery."
He charged Miss Weitkam with negligence in the following particulars:
(a) In stopping her automobile against the neutral ground in the line of rapidly moving traffic;
(b) In failing to give any warning to the traffic approaching that she was about to stop;
(c) In driving next to the neutral ground instead of near the sidewalk curbing when she intended to turn into the driveway at 1817 So. Carrollton Avenue; and Johnston charges that in all of the above acts, Miss Weitkam was in violation of the City Traffic Ordinance No. 13,702.
The record shows that Mr. and Mrs. Weitkam, with their daughter who was driving the car, were returning from a visit, the purpose of which the record does not disclose. They were proceeding along the lower driveway of So. Carrollton Avenue away from the Mississippi River. Mr. Weitkam was on the front seat with his daughter and Mrs. Weitkam was in the rear. As the car reached a point about opposite their home, and while it was still very close to the neutral ground on the left, Miss Weitkam stopped it as it was her purpose to turn to her right and to enter the driveway of the Weitkam home, and because there were other automobiles behind and alongside her, which prevented her turning without first stopping to let them pass.
Immediately behind the Weitkam car was another vehicle driven by T.C. Knabel, who was accompanied by Robert Morrill. Knabel found it possible to avoid running into the Weitkam car, which he avoided by swerving suddenly to his right. Back of the Knabel car was the car of defendant, Johnston, and this car crashed into the rear of the Weitkam car causing the injury and damage for which plaintiffs seek recovery.
Knabel testified that just before the accident he had been "driving behind the Weitkam car * * * about 30 or 40 feet * * * " when "for no apparent reason the car stopped suddenly a little away from the neutral ground." He said also that he "happened to be looking at the car" and was therefore able to avoid striking it but added, " * * * I did not know it was going to stop * * * I had no signal that it was going to stop." Morrill also said that the car stopped very suddenly. Miss Weitkam stated on the other hand that when her car was struck it had been standing still for "five minutes."
Mrs. Weitkam testified that her daughter signalled that she intended to turn to the right and had slowed up to make the turn, and that two other cars and then the Knabel car passed to the right before the Johnston car struck them in the rear.
Mr. Weitkam stated that other cars prevented his daughter from making the turn without first letting them go by and that when he warned his daughter, she stopped; that three cars passed and that then he "looked back in the glass to see if there were any more coming" and saw another one--the Johnston car--coming "on the opposite side of Hickory" and he continued that "he (Johnston) kept coming right on ahead, and ran into us." It seems clear that the Weitkam car had not been stopped for more than a few moments when it was struck by the Johnston car, and that it had been stopped without signal by Miss Weitkam.
In stopping her car on the wrong side of the street, Miss Weitkam was guilty of negligence and she was, in fact, technically at fault in being on that side in view of the fact that in anticipation of making a turn into her driveway, she had been driving slowly. Section 4 of Article V of the City Traffic Ordinance No. 13,702 CGS provides that:
But most of all she was at fault in attempting, under the circumstances, to turn from one side of the road into a driveway on the other. This is a dangerous maneuver and the driver attempting it must make certain that it is safe to do so. She should have been on the right hand side in the first place, but as she had been following the usual custom of "hugging" the neutral ground to her left, it was her duty, with great care, to have piloted her car to the other side some distance before reaching her driveway. It is vehemently insisted that she was within her rights in stopping where she did since she could not cross at that time to the other side, and since to have proceeded further would have made it necessary that she pass her home and then return to it by some other route. But that was the only safe thing to do, and its necessity resulted from her own failure to cross over to the correct side before it was too late for her to do so with safety.
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