DocketNumber: No. 4810.
Citation Numbers: 154 So. 481
Judges: DREW, Judge.
Filed Date: 5/4/1934
Status: Precedential
Modified Date: 1/11/2023
The child in the case was hidden from the view of the motorist by the milk wagon until the boy driving the car saw her leaving the curb. From that instant on the car and the child were equally in plain view of each other. The law imposes the same duty on each to keep a lookout. The boy saw the child and *Page 484 immediately applied his brakes until they screamed, in an effort to avoid hitting the child. The child negligently failed to see the car, made no effort to avoid it, but continued to skip or run heedlessly across the street, up to the very instant it was struck. The accident did not occur at an intersection. The motorist had no reason to anticipate the presence of the child.
Such conduct on the part of a pedestrian is the grossest negligence, and that negligence was a proximate cause of the accident. Owens v. Tisdale (La.App.)
It constituted contributory negligence on the part of the child, who was almost 8 years of age and unusually bright. Lynch v. Knoop,
In Owens v. Tisdale, supra, a pedestrian struck by an automobile, which he failed to see or hear, though it was in plain view not far away when he started across the street from behind a truck, was held guilty of such negligence as would bar recovery.
In Elmendorf et al. v. Clark,
In Hargus v. New Orleans Public Service, Inc.,
Conceding that the child in the present case is shown to be capable of contributory negligence, I cannot agree with the finding of my brothers that the sole proximate cause of the accident was the speed of the car. As shown by the above citations, she was guilty of gross negligence which was a proximate cause of and contributed to the accident, barring recovery in this case.
For the above reasons, I respectfully dissent.