Guillory v. Horecky , 165 So. 159 ( 1935 )

Since this case is now before us on rehearing, and it appears from the exhaustive judgment originally rendered by this court much time and study have been given to the case, I have again read every word of the testimony offered on behalf of the plaintiff and the defendants, and have also carefully read and studied every decision and authority cited by counsel for both sides. I have come to the conclusion that judgment should be rendered in this case in favor of the plaintiff and against the defendants.

I am brought to this conclusion not only by what is undoubtedly the controlling jurisprudence on the question of the care and caution which should be exercised by one driving an automobile or truck on the public thoroughfares, and especially in approaching a band of children playing and frolicking on the roadway, but by the testimony given by the driver of the truck himself on direct and cross examination. Aside from these considerations of fact, the law questions are in favor of the plaintiff. Of course, the question of contributory negligence on the part of the deceased child was eliminated by the trial judge and must be eliminated in our consideration of the case, because no special plea was urged or set forth to this effect by the defendants; the plaintiff averring that the sole and only proximate cause of the accident was the negligence of the driver; defendant, denying the same, offers the affirmative defense that the acts or actions of plaintiff's child were the sole or proximate cause of the same.

It will be remembered that the organ of this court, in stating the contentions of the plaintiff and appellant as to the negligence of the truck driver, expressed himself some doubt as to his conclusions on the questions of fact in this case, for he said: "These questions are close and we do not reach a conclusion without some hesitation."

It is plain, therefore, to me that we did not fully appreciate and apply the undisputed facts in this case, taken in connection with the law as announced by the Supreme Court and the Court of Appeal, and in their latest opinions. I am forced to the conclusion that the sole and only proximate cause of the death of this child was not so much the affirmative negligence of the truck driver, but was his lack of care and caution in meeting a situation which was clearly apparent to him. There can be no dispute that the testimony established the following facts: The truck driver was a native of the town of Church Point, and lived in the immediate neighborhood of two schools. He knew that it was the custom and habit of children to come down the Main street of Church Point at the very time he was going home to dinner. The road was straight, wide, and graveled, and there was no vehicle of any kind approaching him from the front or the rear. The day was clear. He saw this band of children coming down the road in his direction, playing, and he saw that they were on his right side of the road. He knew that all pedestrians used the road, as there were no sidewalks. He admits that he saw these children over a block away, maybe more, and that he only blew his horn "a good piece from them." He said "it was a block or maybe more." The speed of his car when he reached these children is stated by us in the original opinion to have been "close to 20 or 25 miles an hour," and Judge Elliott also correctly held from the evidence: "The evidence shows that the children were playing tag; the truck driver saw them playing and running in his direction and looked behind them as he approached. The fact that his truck was drawing a trailer called for additional care. The situation called at once, on his part, for great care. He should have gotten down to very moderate speed and held his truck well in hand, ready to stop or swerve as might be necessary to avoid the result of impulsive act on the part of the children."

This correct statement and finding of this court, taken in connection with the further undisputed facts in the record, clearly convicted the truck driver of great negligence, and places upon him the sole and only proximate cause of the injuries which resulted in the death of the child. Here are my reasons for so stating:

In the first place, the truck driver never made any movement or motion whatever to arrest the speed of his car or to veer it to the left of the wide highway, or hold it under that perfect control which he should have exercised under the circumstances which he knew and saw. The testimony of the city marshal, who testified on behalf of the defendants in this case, and who seemed to have been very active in making observations immediately after the accident, stated that the wheels of the truck were plainly marked in the road, and that they were about 4 feet from the edge of the ditch on the driver's right-hand side, the body of the truck must have been protruded some inches beyond the wheels, perhaps one foot, and this would have brought the body of the truck to about 3 feet from the edge of the ditch on the same side that the children were approaching, playing. This witness further says that the tracks plainly showed that the driver only veered away from that distance from the edge of the ditch within about 15 feet of where the child was struck and where he found the blood spots, and where they showed him where the child was struck. The driver of the truck says that he thought the children were going to stay on the ditch bank, but in view of the fact that he admits he saw them playing, he had no right to assume that they were going to hug the right side of the ditch bank as he passed. Now, he says that he never took any care or caution or made any motion whatever to avoid striking these children until he was practically upon them, and that he suddenly swung the cab of his truck sharply to the left to the greatest extent that he could, and yet in another place he states that when the child started to back into the truck the child was even with his cab, but had he continued in his path, he would have passed by these children of tender years only a foot or two feet from them. Under all the facts in this case, and particularly those elicited from the lips of the defendant himself, taken in connection with the physical condition, we properly held in the original opinion precisely what duty was placed upon the driver in order to avoid killing this child. We could have gone further and stated that, upon all highways and streets at or near schools, there are signs reading "We love our children, drive cautiously." But we decided that the child had suddenly run into the truck face forward, and therefore her act could not have been anticipated by the driver, and that he was not guilty of negligence. I cannot now agree to this conclusion. Even if we assume that the majority of the court is correct that the child ran into the truck, but in which assumption I think we erred, such fact would not release the driver from his great negligence in approaching these children under the circumstances and in the manner indicated in the original opinion. The driver had no right to think or assume that these children would seek a place of safety against the on-coming of such dangerous thing as a high-powered truck, and he had no right to assume that they would not even run into the street and into the path of the truck. He had ample space on his left; the gravel portion of the road being 26 feet. These things he did assume, and he took his chances in violation of every rule of common sense and caution.

The law applicable to this case is universal and cannot be disputed, and it will be only necessary for me to refer to a few decisions of this court. In the case of Brown v. Wade, decided by the Second Circuit, 145 So. 790, 792, we find general principles which are applicable here:

"When the operator of an automobile discovers the presence of small children on the roadside, ahead of him, it is his duty to travel at such a rate of speed, and bring his vehicle under such control, that an accident will be averted, regardless of the unexpected and unforeseen movement of any of the children. He has not the right to assume that a child, especially one of tender years, will exercise discretion needed to protect it from the dangers of rapid automobile traffic.

"We are not now dealing with a case, as often happens, where a child suddenly emerges from hiding, or from behind an obstruction to vision, and precipitates itself in front of a moving vehicle, thereby creating a sudden emergency. We are dealing with a case wherein the defendant admits that, after seeing the small child, less than four years old, running towards the road and then turning up the road, still running in the direction the car is going, he took little or no precaution to avoid what could or would happen should that child, in the exercise of its childish indiscretion, seek to resume its original course by attempting to cross the road. Under these conditions, it is immaterial whether the car was running sixty miles per hour or thirty miles per hour. The accident happened and defendant contends his speed was not over thirty miles per hour. Regardless of the rate of speed, he was unable to avert an accident which he knew, or should have known, would happen if the child he saw in front of him should suddenly change its line of travel to the left. The action of the child should have indicated to the defendant that its intention, when it ran to the highway and turned up, was to cross over to the tenant house a short distance away — its subsequent action proved this intention. He should have brought his knowledge of the nature and disposition of children of this age to bear, and governed himself accordingly. Defendant had ample opportunity, even from his own appreciation of the situation, to have so manipulated his car as to make it impossible to collide with plaintiff's child.

"Berry on Automobiles (6th Ed.) p. 435, under the title Injuries to Children, lays down the general principle applicable, we think, to a case of this character, viz.:

"``Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them, must calculate upon this and take precaution accordingly.'"

And again I point to a lately decided case by the Orleans appellate court, perhaps the last one on this subject. It is the case of Peperone v. Lee, 160 So. 467. That was the case where a child of tender years was with its mother who started across the street in response to a call from its mother, when he was struck by the defendant's automobile and killed. The court in that case, and after reviewing the jurisprudence on the subject, and after stating facts, such as the sudden running of children from behind parked automobiles, and which would relieve a motorist of negligence, goes on to hold (160 So. 467, page 468): "But, when children are seen on the side of a road, an approaching motorist must anticipate childish actions, as, for example, the sudden running across the road, even when they are accompanied by their elders holding them by the hand. Jacoby v. Gallaher, 12 La.App. 477, 126 So. 86. In a word, the presence of children on or near a highway imposes upon a motorist the duty of exercising extraordinary care and every reasonable precaution must be taken to avoid injuring them. Children and adults whose infirmities are apparent or known to the motorist, ``the lame, the halt and the blind,' the aged and intoxicated, are properly the subject of public solicitude, and the law requires that those who operate such dangerous instrumentalities as automobiles in their vicinity must do so with the utmost care. Jacoby v. Gallaher, supra; Burvant v. Wolfe, 126 La. 787, 791, 52 So. 1025, 29 L.R.A. (N.S.) 677; Santos v. Duvic, 16 La.App. 105, 133 So. 399; Brown v. Wade (La.App.) 145 So. 790; Baptiste v. Mateu (La.App.)147 So. 731."

The child in our case was a little negro child of 11 years old, of small stature, and in only the first grade, showing her mental development to be nil.

Applying these decisions to the facts of this case, and having in mind what our own Supreme Court has decided and all text-writers agree on, I am bound to conclude that the proximate cause of the death of the plaintiff's child was solely due to the failure of the driver of the truck to observe even the ordinary rules of care and caution, otherwise the child would not have been struck and killed, and that our original judgment was erroneous.

These are the views which I expressed in writing to my associates after the case was briefed and argued on the rehearing, which was unanimously granted by this court. As before stated, this court in its original opinion rejecting the demands of the plaintiff had expressed grave dubiety as to its conclusions of fact, and apparently reluctantly rejected and dismissed the plaintiff's suit.

The deciding opinion on this rehearing has added some observations to the original opinion, but has utterly failed to strike at the vitals of this case from the standpoint of the admitted and proven facts and the law applicable thereto. Irrespective of the treatment of the evidence and the law carried in the opinion from which I now dissent, there are certain facts which neither the original opinion or the present opinion can dispute or gainsay. I have adverted to these facts in the above analysis of the case, but contradiction may be easily challenged as to the following admitted facts:

1. The driver of the truck saw these children playing tag on the highway, the Main street of Church Point, coming from the direction of two schools at noontime, playing tag, and for a block or at least 200 feet before he reached them.

2. He saw that they were young, heedless, and engaged in play on the right-side of the roadway, and without slackening or diminishing his speed he bore down on them hugging the right side of the highway, some 2 or 3 feet from the ditch bank, and did not veer away from them until he was within 15 feet of the deceased child.

3. With all of these facts, and which should have been paramount in his mind, the driver took no precaution whatever to avoid an accident.

In my humble opinion, this case presents one of the strongest cases which has ever come before this or any other court for the infliction of damages on the defendant. Indeed, if punitory or smart damages were allowable under our law, this case would furnish ample justification for their infliction.

The Supreme Court in a very recent case of Rottman v. Beverly et al., 165 So. 153, granted a writ of certiorari to this very court, and reversed our opinion (162 So. 73), in a case which bears striking similarity to the instant case. In that case we held: "Her negligence [meaning negligence of plaintiff], as heretofore stated, was inexcusable, and it continued up to the very moment of the accident. Our Supreme Court has repeatedly held that under such circumstances the doctrine of ``last clear chance' does not apply."

But the Supreme Court stated, in unmistakable terms, the true rule thus: "But her negligence in that respect does not bar recovery, because the driver of the car unquestionably had the last clear chance to avert the accident by making proper use of available and adequate means. The roadway including the shoulders is about thirty feet wide. The driver had the facilities and ample time to bring the car under control. If he had done that, the space being ample he could have missed her."

A careful reading of the Rottman Case convinces me that the rule of last clear chance is plainly applicable here. Not only that, but even under the admitted facts, the doctrine res ipsa loquitur is equally applicable. In other words, it is my deliberate judgment that the majority opinion in this case contravenes the facts and the law, and I therefore respectfully dissent.