L'Admirault v. Pointe Coupee Motor Co. ( 1927 )

MOUTON, J.

John L’Admirault, aged seven, was injured by an auto in a public road which leads south from New Roads. The auto which collided with the child was being driven by Prank Collins, an employee of defendant company. This suit is brought by the father of the child for $470.65 in his own right, and in the further sum of $5,000.00 for the minor. Judgment was rendered in favor of plaintiff in the sum of $446.76 for medical attention to the child, and for $500.00 as damages. Plaintiff appeals.

A school bus was going south from New Roads, and the auto driven by Collins, was traveling in the opposite direction, northward towards New Roads. John, the injured minor, and his sister, about nine or ten years old, were standing on the side of the road. Collins says he saw these children on the side of the road; that the bus stopped between the “kids”, as he calls them, and that when the bus was “pulling out' to go” the boy broke from behind the bus to go across the road and was struck by his auto. He says as he saw the child he immediately applied the brakes, but without avail, as the accident was unavoidable.

It is clearly shown by the evidence of Collins and two other witnesses of defendant company, that the injured child was standing on the side of the road; that when the bus moved on, he tried to cross the roadway to the opposite side, running, and was struck when he had reached a point a little over the center of the highway.

Oscar Parent, also a witness for defendant, says the boy was holding a coupling on the bus and was runing behind it, that when he turned it loose, he cut across the road into the pathway of the auto, when he was injured. This statement is flatly contradicted by the testimony of Collins and two other witnesses for defendant, and must be eliminated from consideration in the decision of this suit. It must, .therefore, be considered as an established fact that the child had emerged from behind the bus as it continued on its journey, and that as he attempted to cross the highway, was injured as hereinabove stated.

Collins says that he had seen the injured child standing with his sister at a distance of about two hundred yards before he reached the bus. There can be no question from his evidence that he Had seen them at or about that distance before he got to that point. They were standing there when he first' saw them, and he was then traveling, according to his own testimony, between twenty and twenty-five miles an hour. Counsel for plaintiff propounded the following question to Collins:

“The answer says this: That up to the time that you actually saw said boy in front of your car on the ipublic road, said boy had been completely screened from view by said bus, and seemed to have been waiting for said bus to pass by so that he might cross the road to go to his home, which was on the right hand side of the street looking to New Roads.

“Question: Is that the impression that you formed of those children as they stood there by the side of the road?

“Answer: Yes, sir.

“Question: You had that impression at the time you saw them?

“Answer: Yes, sir.

“Question: You are. positive of that?

“Answer: Yes, sir.”

Obviously, this statement of Collins has explicit reference to the time that he first saw the boy standing on the side of the road, because it would be absurd to say that the impression he had about the boy waiting to cross the road was formed when he suddenly came in contact with him from behind the bus while he was attempting to cross to the other side of the roadway. There can be no question that the boy appeared at the time to be standing on the side of the road as if waiting to cross to the other side. Such was unquestionably the impression Collins got from the apparent attitude of the child. The fact is that the appearance of the child on the side of the roadway created the same impression on Henry Hebert, another witness of defendant, who was following the hus in an auto. Asked if he had seen the child before he ran across the road, he answered that he was then standing on the side of the road. “I think waiting for the bus to pass.” From this statement of Hebert, and Collins himself, the driver of the auto that struck the child, the conclusion ' of fact unquestionably shows that the child, when standing on the roadside, was apparently waiting to cross over after the passage of the bus; and, it is equally certain that such was the impression created in Collins’ mind. Although so impressed, Collins, according to his own testimony, did not in the least slacken the rate of speed at which he had been traveling, but continued at 'the rate of twenty miles an hour up to the time of placing his foot on the brake in his unavailing attempt to avert the accident. When he saw the child on the roadside and saw or felt that he was waiting for the moving of the bus to cross over, the imperative duty devolved upon him to immediately slacken the speed of his auto, or to have it under control, that he might avoid running over the child. In failing to do so, he was clearly negligent and at fault for which the defendant company was properly held liable in damages. The only remaining question is as to the amount of damages which should be allowed.

The proof shows that the child was knocked down unconscious, that when he was picked up from the road,, his parents thought he was dead. It was shown by the physician who attended him, that he suffered a perforated wound on the side of his nose, a fractured arm, and a lacerated wound in the right side of the abdomen; that he had hemorrhages in the mucous membrane of the head and that he was totally unconscious for a period of fourteen days, then semi-conscious for an equal, if not a greater period of time. After he regained consciousness it was shown by his mother that he remained sixty days in bed. The physician said that his nerve centers were impaired and that the Jacksonian type of epilepsy might follow with the possibility of a permanent physical and mental impairment. In cases showing no greater injury the Supreme Court has allowed the recovery of damages in amounts ranging from $1,000.00 to $2,000.00 or more. See Thompson vs. Com’l Nat’l Bank, 156 La. 481, 100 South. 688; Monge vs. New Orleans Ry. & Light Co., 145 La. 435, 82 South. 397; Knight vs. V. S. & P. Ry. Co., 142 La. 359, 76 South. 799.

The trial Judge allowed $500.00 in damages. This amount is inadequate and we feel constrained tq raise it to the sum of One Thousand Dollars.

It is, therefore, ordered, adjudged and decreed that .the amount decreed in the judgment appealed from be increased from the sum of $946.76 to the sum of $1446.76, and as amended it be affirmed with costs.