Wilhite v. Beavers, 11217

• Decision Date: 27 May 1969
• Docket Number: No. 11217,11217
• Parties: Thomas Elton WILHITE, Individually and as Administrator of the Estate of the minor, Billy Eugene Wilhite, Plaintiff-Appellant, v. Joseph C. BEAVERS et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 919

227 So.2d 919

Thomas Elton WILHITE, Individually and as Administrator of

the Estate of the minor, Billy Eugene Wilhite, Plaintiff-Appellant, v. Joseph C. BEAVERS et al., Defendants-Appellees.

No. 11217.

Court of Appeal of Louisiana, Second Circuit.

May 27, 1969.

On Rehearing Oct. 20, 1969.

Jones, Blackwell, Chambliss, Hobbs & Henry, by Jasper E. Jones, West Monroe, for plaintiff-appellant.

Davenport, Files & Kelly, by William G. Kelly, Jr., Monroe, for Continental Ins. Co., defendant-appellee.

Before GLADNEY, AYRES, and PRICE, JJ.

AYRES, Judge.

This is an action in tort wherein plaintiff, on behalf of his minor son, Billy Eugene Wilhite, seeks to recover damages for personal injuries sustained by the minor when struck by a motor vehicle owned and operated by defendant Joseph C. Beavers, an uninsured motorist. Plaintiff, individually and on his own behalf, seeks reimbursement of hospital and medical expenses incurred by him in the treatment of his son's injuries. Made defendant in addition to Beavers is the Continental Insurance Company, plaintiff's insurer, whose liability is asserted under the uninsured motorist's provisions of its policy. In a third-party petition combined with its answer, the Continental Insurance Company sought, in the alternative, judgment over against Beavers for any amount which it might be condemned to pay.

Finding defendant Beavers free from negligence but concluding, in any event, Billy Eugene Wilhite was guilty of contributory negligence, the trial court rejected plaintiff's demands as well as the third-party demands of defendant Continental Insurance Company against defendant Beavers. From the judgment, plaintiff appealed.

The accident upon which this action is based occurred as the minor, Billy Eugene Wilhite, walking easterly on the north side of the 700 block of Smith Street, outside the corporate limits of West Monroe, was struck from the rear by an automobile, owned and driven by Beavers, when Beavers took to his wrong, or left, traffic lane in an attempt to pass a forward car owned and operated by Mrs. Janet Faye Hair. The street, asphalt surfaced to a width of approximately 20 feet, with dirt shoulders but without sidewalks, runs in a general east and west course. The vicinity was characterized as 'heavy' residential, with a church, three grocery stores, and a number of gasoline service stations within an area comparable to two or three city blocks.

At the time of the accident, about 6:30 a.m., December 20, 1967, the street was wet; driving conditions, described as bad or dangerous, were said to have been worsened by the darkness of the early morning, attributable, partially, at least, to the low overhanging clouds and the presence of a dense fog impenetrable by the headlights of automobiles for any appreciable distance.

The accident occurred on Smith Street, as aforesaid, about 610 feet east of Washington Street, about 80 feet east of Lilac Street, and about 230 feet west of Pink Street, all of which enter or cross Smith Street at right angles. The Wilhite family lives in the second block of Pink Street, north of Smith Street.

Billy Eugene Wilhite, approximately 12 years of age, dressed for school, walked to a store located at the intersection of Washington and Smith Streets where he purchased supplies for a school party. On the way home, he walked easterly along Smith Street about a foot or a foot-and-a-half, so he testified, from the northern edge of the street's asphalt surface, facing oncoming traffic. Mrs. Hair and her companion, in the forward car, placed young Wilhite nearer the center of the westbound traffic lane of the street. However, neither of these women saw the child until he was almost alongside their car. Their failure to see him sooner was due, according to their testimony, to their lack of vision occasioned by the density of the fog. Beavers' testimony in this respect was more in line with that of the minor whose testimony is corroborated by the evidence of the location of the point of impact.

On approaching this point in the street, Beavers, who had been following the lead vehicle at a distance of from 30 to 40 feet as both cars proceeded north on Washington Street and then easterly on Smith Street, attempted a passing movement notwithstanding his inability to see that the way ahead was clear. His presumption that the way was clear was predicated on his inability to see headlghts of oncoming vehicles. Beavers first testified that, after coming into the passing lane, the minor was perhaps only 50 feet away, whereupon he endeavored to steer his car to the Right as he applied his brakes, but, because the road was slick and wet, the car skidded and 'fishtailed,' presumably meaning that the rear of his vehicle was not properly trailing the front of the car, which resulted in a tendency of the car to assume a sidewise position. However, later, under cross-examination by defendant insurer's counsel, Beavers testified he never saw, nor could he have seen, the minor in the lights of the forward car; that when he first saw him he was at the rear of the lead car and was 'right on him' (Beavers); that it was impossible for him to measure this distance in feet; and that he made an attempt to steer his vehicle to the Left but was unable to stop. After beginning his passing movement, Beavers traveled only 94 feet before striking the minor. The left front of the Beavers vehicle struck the minor, knocking him seven or eight feet to the shoulder of the street where he came to rest near some mailboxes.

It was proper for the minor to walk on or near the edge of the surface of the street. Where there are no sidewalks, the statute LSA-R.S. 32:216, subd. B provides that:

'* * * any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction.'

Under similar prior statutes, this principle has long been recognized and given effect by the courts. Locke v. Shreveport Laundries, 18 La.App. 169, 137 So. 645 (2d Cir. 1931). There it was held that a pedestrian had the legal right to travel on a concrete highway under the provisions of Act No. 296 of 1928. A prior decision so holding is Kelly v. Ludlum, 9 La.App. 57, 118 So. 781 (2d Cir. 1928). A similar conclusion was reached in Ward v. Donahue, 8 La.App. 335 (2d Cir. 1928). To the same effect is a pronouncement in Savoie v. Walker, 183 So. 530 (La.App., 1st Cir. 1938).

A minor, walking where he has a right to walk on a public street, which right is not only accorded him by statute but is recognized in the jurisprudence, is not chargeable with contributory negligence in so doing when he is hit by an automobile merely because of his being on the street. Nor does one who walks along the left edge of a roadway facing oncoming traffic, in order to purge himself of contributory negligence, have to maintain a lookout for automobiles approaching from his rear. Rawls v. Red River Lumber Co., 152 So. 337, 338 (La.App., 2d Cir. 1934); Locke v. Shreveport Laundries, supra.

In Savoie v. Walker, supra, The court recognized the right of pedestrians to walk upon the left edge of the pavement of a roadway which, under Act No. 21 of 1932, § 3, Rule 11(d), was that part of the road on which the law requires them to walk. The court particularly noted there was no law or rule of the road requiring a pedestrian walking on the left side of a road to constantly look back for traffic following on the other side of the road. The court stated:

'He is required to be looking forward for cars meeting him in front. A car approaching a pedestrian from his front will be on its side of the road, and the pedestrian is required to keep a careful lookout for such approaching cars. But a car approaching from his rear on the left side of the road is on its wrong side on the road, and the driver of such a car is required to be vigilant and cautious because he is occupying his wrong side of the road.' (Emphasis supplied.) 183 So. 530, 535.

See, also: Rawls v. Red River Lumber Co., supra; Kelly v. Schmidt & Zeigler, 142 La. 91, 76 So. 250 (1917).

It may be noted in the instant case that Beavers did not sound his horn or give any other warning to the minor of his car's approach to the minor's rear, other than to place his left-turn signal in operation. This, however, was not a signal intended for persons or traffic in Beavers' left, or wrong, lane of traffic. The purpose of this signal is to give notice to following vehicles of the motorist's intention to change traffic lanes. It has no other purpose and is wholly ineffective as a notice to a pedestrian walking and looking in the opposite direction to that in which the motorist is proceeding.

In Hernandez v. State Farm Mutual Automobile Ins. Co., 192 So.2d 679, 682--683 (1966), the Court of Appeal, Third Circuit, had occasion to observe and, in Arnold v. Traders & General Insurance Company, 204 So.2d 425, 427 (1967), to emphasize:

'The jurisprudence of this state is firmly established to the effect that When visibility is materially impaired because of smoke, mist, dust, fog or other atmospheric conditions, a motorist is held to a duty of operating his vehicle with an unusually high degree of care. He should reduce his rate of speed to such an extent, and keep his car under such control as to reduce to a minimum the possibility of accident from collision. And, as an extreme measure of safety, it is his duty when visibility ahead is not possible or is greatly obscured, to stop his car and remain at a standstill until conditions warrant goint forward. He does not have the right to assume that his course of travel is free from danger or obstruction in the absence of his ability to see clearly ahead, and if he continues to travel as if he knew there was perfect clearance ahead, he does so at his own risk and peril. Culpepper v. Leonard Truck Lines, Inc., 208 La. 1084...