Wise v. Prescott

• Decision Date: 25 March 1963
• Docket Number: 46309,Nos. 46299,s. 46299
• Citation: 244 La. 157,151 So.2d 356
• Parties: Mrs. Corinne Clohecy WISE, Widow of Daniel J. Wise, v. Vester PRESCOTT et al.
• Court: Louisiana Supreme Court

Page 356

151 So.2d 356

244 La. 157

Mrs. Corinne Clohecy WISE, Widow of Daniel J. Wise, v. Vester PRESCOTT et al.

Nos. 46299, 46309.

Supreme Court of Louisiana.

March 25, 1963.

Alvin R. Christovich, William W. Ogden, New Orleans, for defendants and appellants and petitioners.

John P. Dowling, Calvin H. McBride, New Orleans, for plaintiff-relatrix, Mrs. Corinne Clohecy Wise, Curtis R. Boisfontaine, New Orleans, for respondents, Vester Prescott and Allstate Ins. Co.

HAWTHORNE, Justice.

This suit arose out of an intersectional collision at St. Roch Avenue and North Miro Street in New Orleans, between a passenger bus owned by New Orleans Public Service, Inc., and operated by one of its employees, Harry J. Miller, Jr., and a car driven by Vester Prescott.

St. Roch Avenue has a wide center neutral ground with two lanes of traffic on each side, one side for lakebound traffic, the other for traffic going toward the River. Each of the roadways of St. Roch Avenue is approximately 30 feet wide. North Miro Street is a one-way street toward Canal Street, and is about 30 feet wide. At the intersection of the two streets there is a stop sign for lakebound traffic on St. Roch, and a slow sign for vehicles on North Miro.

Vester Prescott, the driver of the automobile, was proceeding along St. Roch Avenue toward the Lake in the lane next to the center neutral ground, and was faced with the stop sign. The bus driver was proceeding along North Miro and was faced with the slow sign. The vehicles collided near the center of the intersection formed by North Miro and the lakebound roadway of St. Roch.

The plaintiff, Mrs. Corinne Clohecy Wise, a fare-paying passenger on the bus, who received injuries as a result of this collision, instituted suit for damages for physical injuries, claiming that the collision was caused by the concurring negligence of both Miller, the bus driver, and Prescott, the driver of the automobile. The case was tried before a jury, which returned a verdict in her favor, and against all defendants, in a sum in excess of $11,000.00, and judgment was rendered for this amount, in solido, against Miller; his employer, New Orleans Public Service, Inc., the owner of the bus; Prescott, and his insurer, Allstate Insurance Company, with recognition that the maximum of Allstate's liability under its policy on Prescott's car was $5000.00.

All defendants appealed to the Court of Appeal, Fourth Circuit. That court concluded at to Prescott and his insurer Allstate that plaintiff had entered into a transaction or compromise with these two defendants under which they had paid plaintiff $105.00, and that this compromise barred her action against these two defendants; but the court concluded as to Miller, the bus driver, and Public Service that Miller was negligent, and that therefore he and his employer, Public Service, were liable to plaintiff. The court, however, was of the view that the jury award was excessive, and that for injuries sustained, expenses, and loss of income plaintiff was entitled to $7500.00, subject to a credit of $105.00 received by her from Allstate. It reduced the award accordingly, rendered an in solido judgment against Miller and New Orleans Public Service, and dismissed plaintiff's suit against Prescott and Allstate Insurance Company. See 142 So.2d 613.

This court was asked for certiorari both by the plaintiff Mrs. Wise and by the defendants Public Service and Miller. The application of Mrs. Wise was granted to review the Court of Appeal's holding that the release signed by her was a compromise which barred her action against Prescott and Allstate. The application of Public Service and Miller was granted to review the Court of Appeal's holding that Miller, the operator of the bus, was negligent.

On the Question of Liability of Public Service

Miller, the driver of the Public Service bus, testified that as he approached the intersection and the slow sign facing him, he reduced the speed of the bus from approximately 20 miles per hour to about 10 or 12 miles per hour; that when he was 30 feet from the intersection, he looked to the left (the direction from which vehicular traffic would come) and did not see any vehicle approaching; that he then entered the intersection without looking again to his left, that he was looking straight ahead, and that when he was half-way across the lakebound side of St. Roch, he caught sight of the Prescott car out of the corner of his eye, his attention being called to it by the screech of brakes. Prescott without stopping for the stop sign at North Miro entered the intersection at a speed estimated to be 20 miles per hour. The vehicles collided approximately in the center of the intersection of North Miro and the Lake roadway of St. Roch, and the left front of the bus and the right front of the automobile were damaged.

As observed by the Court of Appeal, several passengers on the bus testified in this case. Although they were not in as good a position in their seats behind the driver to have a general observation of the whole intersection as was the driver of the bus, they testified that they saw the Prescott car approaching before the collision at various distances away. One saw the car when it was a short distance from the intersection and just as the bus reached the intersection. One saw it as the bus entered the intersection. One saw the automobile when it was about 25 feet away from the point of collision and the bus was 10 feet from the intersection. Another saw the car 20 or 30 feet away when the motor part of the bus was into the intersection. One of these passengers who observed the car stated that it seemed to him there was going to be an accident.

Insofar as Public Service and Miller are concerned, the law applicable to the case was correctly stated by the Court of Appeal thus:

'The mere showing of injury to a farepaying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case. Adams v. Great American Indemnity Company, La.App., 116 So.2d 307; Johnson v. Continental Southern Lines, Inc., La.App., 113 So.2d 114, 74 A.L.R.2d 1328; Coleman v. Continental Southern Lines, Inc., La.App., 107 So.2d 69; Peters v. City of Monroe, La.App., 91 So.2d 428.

'A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378. The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care. Mire v. Lafourche Parish School Board, La., 62 So.2d 541.'

The Court of Appeal found affirmative proof that the bus driver was negligent in the operation of the bus at the time of the accident. As we view the matter, however, it is necessary for us under the law only to ascertain whether Public Service and Miller have sustained the burden of convincingly overcoming the prima facie case of negligence against them.

As the driver of the bus approached the intersection, he was confronted with a slow sign. What degree of care is required of a driver approaching such a sign? In our opinion, he is warned by such a sign that the locus or intersection is hazardous and unusual, his duty to exercise vigilance and prudence is increased, and it is inescapable that his right to rely on a motorist to obey a stop sign at that intersection is greatly decreased. When an intersection is controlled by a stop sign and a slow sign, a high duty of care is put on the drivers of vehicles on both thoroughfares, and, as stated by the Court of Appeal, a motorist when confronted with a slow sign must do more than diminish his speed. He must enter the intersection with extreme caution and vigilance so as to apprise himself that he may proceed safely across. Reducing his speed is only a partial fulfillment of the duty such a sign imposes.

In view of the high degree of care required of public carriers toward their fare-paying passengers, the vigilance and prudence that must be exercised in the face of a slow sign, and the fact that the burden is on the carrier to show its freedom from negligence, we cannot say that the jury and the Court of Appeal erred in holding Public Service and Miller liable. The bus driver's complete lack of awareness of the Prescott car's approach under the circumstances of this case appears to us to be sufficient to justify the conclusion that he and Public Service failed to prove that he was maintaining the proper lookout, vigilance, and caution required at this intersection. Consequently we conclude that Public Service and Miller have not sustained the burden required under the law of overcoming the prima facie case of negligence against them.

In brief and in argument in this court counsel for Public Service contend that the Court of Appeal misconstrued and did violence to the law as laid down in Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292. That case was cited with approval in Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849, in which we stated:

'* * * The motorist on the right-of-way street, with knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed, or is not going to observe, the law. * * *'

This principle of law has little or no application to the facts of the instant case, for North...