text:
    SHUMAKER et al. v. PLAIN et al.
    No. 3024.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.

      John Fred Odom and Homer J. Belanger, both of Baton Rouge, for appellants.
    Dudley L. Weber and J. Oliver Bouan-chaud, both of Baton Rouge, for appellees.
   ELLIS, Judge.

This is a suit filed by Joseph Shumaker and his wife, Mrs. Pinkie Endom Shumaker, plaintiffs herein, against Robert Plain and Carnes B. Evans, in which plaintiffs are seeking damages for personal injuries and property damage as the result of a collision between the automobile of the plaintiffs and a truck-trailer owned by the defendant, Carnes B. Evans, and driven by Robert Plain, which occurred at the intersection of the extension of Florida Street and Foster Drive in East Baton Rouge Parish, Louisiana on November 3rd, 1945 between seven and seven-thirty P. M.

Plaintiffs allege that the collision and resulting damages to them were due entirely to the negligence, recklessness and want of care of the defendant, Robert Plain, which consisted particularly of the following:

“A. In attempting to make a left turn on a busy highway without first ascertaining, which was his duty and responsibility, that such turn could be made in safety to himself and others.
“B. In failing to yield the right-of-way as is required by law to such traffic as would be affected or delayed by such a left turn.
“C. In turning the said truck and semitrailer so suddenly into your petitioners’ path, that petitioner, Joseph Shumaker, did not have sufficient time to bring his car to a halt.”

Plaintiffs further allege that as a result of the accident Joseph Shumaker suffered personal injuries and property damage, hospital, doctors’ and nurses’ bills for himself and wife, traveling expenses and ambulance expenses, all of which total $3670.50, and that Mrs. Pinkie Endon Shumaker, his wife, suffered damages consisting of permanent disability, pain and suffering in the total sum of $20,000.00, and prays accordingly for judgment in these amounts, in-sólido, against the defendants, together with legal interest on both amounts with judicial interest until paid.

Defendants in their answer charge that the sole and proximate cause of said accident was the gross negligence on the part of the plaintiff, Joseph Shumaker, in:

(1) Driving his said automobile at a dangerous and unlawful rate of speed of over seventy miles per hour;

(2) Traveling at such terrific rate of speed that just prior to, and at the moment of the collision, his said automobile was out of control;

(3) Failure on the part of the said plaintiff, Joseph Shumaker, to see said truck, which was plainly visible, with all lights burning brightly;

(4) Failure on the part of the plaintiff, Joseph Shumaker, to apply his Drakes and avoid said collision;

(5) Failure on the part of the said plaintiff, Joseph Shumaker, to pass to the left of the rear of said semi-trailer, which lane of traffic was entirely clear;

(6) Driving his said automobile while under the influence of liquor to such an extent as to render him incompetent to operate his said automobile, all of which said acts of negligence respondents show that plaintiff, Mrs. Pinkie E. Shumaker, acquiesced in, and respondents have been informed and believe, and therefore aver, that the said plaintiff, Mrs. Pinkie E. Shu-maker, did not make any protest against said acts by plaintiff, Joseph Shumaker.

Defendants filed a supplemental answer amending Paragraph 33 of the original answer on the day the case was called for trial, the amendment to said Paragraph 33 being underlined herein:

“Respondents have been informed and believe, and so believing aver that when the plaintiff, Joseph Shumaker, reached the said intersection, and that for a considerable distance back from the same, he was driving his said automobile, with the knowledge and consent of his wife, plaintiff Mrs. Pinkie E. Shumaker, at an excessive and dangerous rate of speed of more than seventy miles per hour, in violation of the Louisiana Plighway Regulatory Law, and that before reaching said intersection the truck and semi-trailer of respondent Evans was plainly visible to him and Mrs. SJw-maker as all of the front, rear and side lights on said truck and semi-trailer were in good working order, and were burning, but that nevertheless he failed to reduce his speed or apply his brakes, but on the contrary said plaintiff, Joseph Shumaker, continued straight on and crashed into the rear portion of said semi-trailer. That the petitioner Mrs. Pinkie E. Shumaker acquiesced in all the negligent acts of her said husband set forth in this answer, and that she was guilty therefore of such contributory negligence that would bar her rights to recover.

The plaintiff objected to the filing of this supplemental answer on the ground that the original answer “does not set up any plea of contributory negligence as far as Mrs. Shumaker is concerned; the supplemental answer is filed the day of the trial and it definitely changes the issues.” This objection was overruled for the reason that “in the opinion of the Court the original answer does set forth specific contributory negligence, which could be so held, and in overruling the objection to the filing of the supplemental answer, the Court advised counsel for plaintiff that if he was taken by surprise a continuance would be granted.”

We are of the opinion that the original answer set up a state of facts which, if proven, would constitute contributory negligence on the part of the plaintiffs without the amendment as set forth in the defendants’ supplemental answer.

The case was duly tried and the Court in its written opinion held “that this accident resulted solely because of the negligence of Mr. Shumaker and that the driver of the truck-trailer was free from any negligence,” and accordingly judgment was rendered dismissing plaintiffs’ suit at their cost. Plaintiffs have appealed from this adverse judgment.

The facts in this case as revealed by the record show that the plaintiffs were residents of Baton Rouge, Louisiana and that on November 3rd, 1945 they had attended the Tulane-Mississippi State football game in New Orleans and had left immediately after the game for Baton Rouge where they expected to pick up their young son at their home and then attend the L. S.U. — “Ole Miss” game which was scheduled to begin at 8:15 P.M. Joseph Shu-maker was driving his 1941 Chrysler Coupe and had come as far as the circle on the outside of Baton Rouge on the Airline Highway and had turned there into the Florida Street Extension..

Plaintiff testified on Page 14 as follows:

“Q. You say you were going about forty-five — A. I was going between forty-five and fifty. I knew there was a cross road there, I travel that road a lot, and I showed down for the cross road and I didn’t see anything coming and I shot the juice to it. I imagine I slowed down to thirty-five or forty — and I didn’t see anything coming and I shot on across.
“Q. What happened then? A. It happened so fast I could not tell you what I hit or anything else, only thing I knew, like that wall, looked like something black in front of me and it was so big I turned left as far as I could, it was so big I could not miss it.
“Q. You mean the whole entire place was covered? A. Yes, sir, just like a' wall in front of me.
“Q. You pulled as far as you could to your left? A. Yes, sir, if it had been an ordinary car I would have missed it, but being- a truck as big as it was, I could not miss it. I didn’t know what I hit until I got to the hospital.
“Q. You slowed down? A. I always slow down. I use to live in Gonzales and I saw a wreck at a road like that and I stopped for that wreck and every time I get to a cross road I slow down for it, I don’t care whether I got the right of way or not.
“Q. Was anybody between your car and this truck? A. No, sir.
“Q. Your way was clear to the left? A. Yes sir, wasn’t anybody in front of me.
“Q. Prior to that where were you traveling? A. I was traveling on the right hand side.
“Q. Could you have stopped after you saw this truck? A. Had not a chance at all, Judge, I could not stop.
“Q. To what extent were you injured? What injury did it do to your automobile? A. Total wreck. I think I sold it for junk, about $360.00.”

Plaintiff, under cross examination, admitted that he did not see the truck until he was about fifteen or twenty feet from it but that there was nothing to obstruct his view; he further admits that he was increasing his speed at the time he hit the truck. Plaintiff testified that there was a sign which says “Cross Roads” just before you get to Foster Drive, and that is where he slowed up, and he estimates the distance of this sign from Foster Drive as sixty feet, however, a measurement as shown by the record proves this cross roads sign to be S46 feet from Foster Drive.

Mrs. Shumaker testified that her husband had been driving all the way from New Orleans at approximately not over forty-five miles per hour; that after they passed the circle, she turned on the radio and was interested in the news and that she didn’t remember anything about the collision until two weeks afterward.

The plaintiff also introduced the testimony of Mr. and Mrs. Floyd Booth who followed the plaintiffs in their automobile from the circle until the accident occurred. They testified that they ran about ISO feet behind the Shumaker car and that they were traveling approximately around 55 miles per hour; that Shumaker was driving correctly with his lights burning, and just before the wreck Mr. Booth saw two lights start across the road and that at this time the Shumaker car was not over thirty feet from the truck. He testified that the car “shot out” from the side street and came across from the south; that the only thing he saw Shumaker do was pull to the left “a little bit”, and that he did not think there was room enough for the Shumaker car to have passed to the left or rear of the truck-trailer, and that the truck-trailer, when he saw it, was moving and had already crossed the neutral ground to the north side of the Florida Street Extension. Mrs. Booth corroborated her husband’s testimony except that she did not see the truck before the collision.

The testimony offered on behalf of the defendants reveals that on the date of the accident defendant Carnes B. Evans rented his 1940 Model Ford truck and semitrailer to Delta Beta Sigma Sorority, which is a social sorority at the Baton Rouge High School. The members of this sorority, together with some friends, were going on a hayride and picnic to Magnolia Beach in East Baton Rouge Parish. The young people were to be chaperoned by Mr. and Mrs. Niles P. Evans, no relation to the defendant Carnes B. Evans, who had a daughter in the truck, and also by Mrs. IT. L. Lehman, who was sorority mother at the time, and by Mr. and Mrs. L. C. Kenyon. Prior to the time the truck went to the Baton Rouge High School to pick up the children, it was serviced at Kirt’s Esso Service Station, which is located on the Scenic Highway and Choctaw Road in Baton Rouge, by C. L. Sanders, an employee, who testified that he had checked the truck as to brakes, lights, gas and oil, and that Evans, the owner of the truck, was in the habit of sending the truck over for a complete check-up before it was sent on the road. He testified that he checked the lights and that the front, rear and side lights were all burning, and that the truck had reflectors on the side. When the truck picked up the young people, numbering approximately seventy-five girls and boys, Mr. Niles P. Evans rode in the truck with the driver, Robert Plain, and David Evans, twelve year old son of the defendant, Carnes Evans. The truck was followed by two automobiles. In the first automobile was Mrs. H. L. 'Lehman and Mrs. Niles Evans, and it was being driven by Mrs. Lehman. This car followed directly behind the truck, and behind it was an automobile occupied by Mr. L. C. Kenyon and Mrs. L. C. Kenyon and being driven by Mr. Kenyon.

The evidence proved beyond any doubt that Robert Plain, the driver of the truck, proceeded east along Florida Street Extension in a most careful manner at a speed of approximately twelve to fourteen miles per hour until reaching a point where Foster Drive crosses the Florida Street Extension. He held out his hand and stopped and saw two car lights in the west bound north lane of traffic of the Florida Street Extension about four-tenths of a mile away. He then turned to his left into Foster Drive with the intention of crossing the extension of Florida Street and proceeding north along Foster Drive. He came to a bare stop in the Neutral ground and looked to his right again as also did Mr. Niles P. Evans, who was riding in the cab of the truck. Both testified that there was no doubt in their mind that they had plenty of time to continue on across the north lane of traffic on the extension of Florida Street as the cars at that time were one-fourth or three-tenths of a mile away. All of the front portion of the truck was completely across the north lane of the Florida Street Extension, and the rear wheels under the semi-trailer had also crossed the center line of the north lane of Florida Street when the plaintiff’s car struck the rear end of the semi-trailer at a point on the right rear outside wheel thereof. The testimony shows that the plaintiff’s car struck dead center with the rear axle under the semi-trailer. As a result of the accident, plaintiff’s car was completely demolished, showing a direct blow to the front end of the car and the left rear dual wheels under the semi-trailer, and all but fifteen inches of the rear axle was knocked a distance of seventy-five to eighty feet from the trailer, and the right rear dual wheels were knocked approximately twenty-five to thirty feet from the semitrailer, and the impact knocked the semitrailer around at an angle to the cab of the truck. It is shown that the weight of the trailer was 7500 pounds, and the weight of the rear axle and wheels which were knocked seventy-five or eighty feet totalled approximately 600 pounds.

The car of the plaintiff came to rest at a point marked “F” on the map introduced in evidence, which is just north of the center line of the north lane of the Florida Street Extension. All lights were burning, front, sides and rear, on the truck and semi-trailer and there was, therefore, no reason or excuse for the plaintiffs not to have seen this truck, which measured twenty-nine feet four inches over all, with the height of the body from the floor to the top of six feet. Furthermore, the truck had pre-empted the intersection, which it had a right to do under the law. In fact, there was only thirty inches of the semi-trailer portruding over the center line of the north or right hand lane of traffic of the Florida Street Extension at the time of the accident and clearly plaintiff could have passed to the rear of the semi-trailer, even though possibly he might have had to use part of the neutral ground, which is thirty feet eight inches wide, between the north and south lane of Florida Street Extension. The so-called curb of the neutral ground is even with the pavement.

There is no doubt that the proximate and sole cause of this accident was the failure of the plaintiff, Joseph Shumaker, to maintain a proper look-out, and the excessive rate of speed at which he must have been driving at the time of the collision.

Defendants were within their rights under the facts in this case in attempting to cross Florida Street Extension, as they only had to wait until there was a reasonably safe opportunity to cross, which they did. Simpson v. Pardue, 15 La.App. 341, 131 So. 854; Reed v. Kraak, 11 La.App. 555, 123 So. 407; Fontanille v. Ducote, La.App., 155 So. 46, 47. We are convinced from the evidence that Robert. Plain, driver of the truck and semi-trailer, was not guilty of any negligence whatsoever and are therefore of the opinion that the judgment of the District Court should be affirmed and it is so ordered.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    SUTCLIFFE v. E. I. DUPONT DE NEMOURS & CO.

      No. 3028.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellant.
    Durrett & Hardin, of Baton Rouge, and Erlo J. Durbin, of Denham Springs, for appellee.
   DORE, Judge.

This is a suit by which plaintiff seeks to recover the maximum compensation allowed by the compensation law from the defendant for total and permanent disability as the result of an explosion which occurred on December 26, 1944, in which plaintiff received “extensive multiple first, second and third degree sodium burns of entire body and face (eyes not affected).”

Plaintiff at the time of the accident was a foreman in defendant’s sodium plant at Baton Rouge. There is no dispute as to the happening of the accident, the injury to the plaintiff and his wages. The only question at issue is the outcome of the said injuries.

The plaintiff alleges that he has been permanently injured and that his nerves and his nervous system have been permanently damaged, thus producing total and permanent disability for performing work of the character which he was performing when accidentally injured. Defendant, in its answer, alleges that plaintiff had fully recovered from the said injuries on May 2, 1945, and is able to perform the duties at which he was employed when burned.

The case was tried on January 25, February 14 and April 4, 1946, and was argued and submitted to the trial judge on June 5, 1946. On October 7, 1946, for written reasons assigned the trial court rendered a judgment rejecting plaintiff’s demand and dismissing his suit on the ground that plaintiff had failed to prove that he was unable to satisfactorily perform the duties of a foreman in the sodium plant of defendant without additional injury to himself because of the injuries sustained by him in the accident, which allegedly caused him disability, being of the opinion that the plaintiff had resigned his position with defendant not because he was unable to satisfactorily perform his duties, but for the reason that he was apprehensive that another explosion would occur, which, in his opinion, was not compensable within the meaning of the workmen’s Compensation Law. On October 9, 1946, plaintiff filed a motion to re-open the note of evidence in order that certain tests might be made and additional evidence be introduced. In the alternative, he prayed for a rehearing. On October 21, 1946, the motion was granted. On February 14, 1947, a test was conducted on plaintiff. On April 30, 1947, evidence was introduced. On July 14, 1947, the case was resubmitted to the trial court. On January 13, 1948, the trial judge, with written reasons assigned, granted a judgment in favor of plaintiff, awarding him maximum compensation for a period beginning December 26, 1944, for a period of his disability, not exceeding 400 weeks, with legal interest on each past due instalment from its due date until paid, subject to a credit for the compensation due for the period from December 26, 1944, to July 13, 1945. From this judgment defendant has appealed.

Plaintiff entered the employment of defendant in the year 1937 as a pipe fitter helper. He worked himself up to a helper in the sodium department, finally becoming a foreman, the highest paid job, in the cell room of that department. He had worked in that department for more than five years prior to December 26, 1944, when on said date there was an explosion from which plaintiff received severe and painful burns.

The cell room in which plaintiff performed his ■ duties as a shop foreman consisted of two banks or rows of cells, of approximately 38 cells to each row, cylinder in shape, about eighteen inches apart and about two feet high, and each of those cells operated at a temperature of 580 degrees Centigrade. Although the testimony regarding the temperature in the cell room is not quite clear and is somewhat in conflict, we believe that it can be safely stated that it was very hot in many places, particularly on top of and between the cells. Plaintiff’s duties required him to walk on top of and around the cells.

Immediately after the explosion, plaintiff was given treatment at the plant hospital, then removed to Our Lady of the Lake Hospital, where he was placed under the care of Dr. Jeff McHugh. Dr. McHugh described plaintiff’s condition as follows:

“When I first saw Mr. Sutcliffe he had a second degree burn in the right parietal region of his head. He had second degree burns just below the right shoulder on the anterior surface of the arm and about midway the right arm, anterior surface, and also second degree burns on the anterola-teral surface of the right elbow, a second degree burn of the right flank, multiple small burns on the lateral surface of the right thigh and leg down to the ankle, and a second degree burn of a small surface on the lower medial surface of the left leg, and surrounding the second degree burn was an area of redness which we classify as a first degree burn.”

As to the treatment given and the results thereof, Dr. McHugh testified:

“I gave him plasma intravenously, applied foille, and later switched to sulfathia-zole ointment, and used various of the usual local applications until the burn was healed. The plasma was continued until the blood counts indicated that he was out of danger of dying from shock or blood concentration. Then, after the burns healed, the one at the right elbow had healed with a very deep cord-like scar which interfered with flexion and extension of the arm. This scar was dissected out and skin grafted from the left thigh onto the right elbow. Then he was returned to duty on May 2, 1945.”

The medical testimony is conclusive that keloid formations were found and were forming at some of the scars, particularly at or around the elbow of the right arm at the time of the first trial of the case.

On plaintiff’s return to the plant on May 2, 1945, he worked some eighteen days in the yard, supervising a labor gang, which work he was able to perform satisfactorily. On June 2, 1945, he was requested by his superior, on account of being short-handed, to return to his former position as foreman in the sodium department. He worked as such for approximately thirty days, resigning on July 13, 1945.

Plaintiff testified that he felt that he was not performing his work as he should because he could not spend “that much time around the cells”; that his skin would not stand the heat which irritated it and his clothes rubbed his burns and the salt and chlorine in the air kept him irritated. During the time that he worked in June to July 13, 1945, plaintiff testified that a number of fine blisters made their appearance under the skin and that he missed several days’ work, due, he guessed, from his nervous condition, “just fear of the heat. I just knew what I was going through when I went in it.” He also testified that he was afraid of the working place itself, presumably of another explosion.

Dr. McHugh testified that on June 1, 1945, he rendered an opinion in which he states that plaintiff “has some keloidal formation of his scars, which will probably not tolerate extremes of heat. I would suggest that he try his old job, applying vaseline before going into the heat. If the areas do not tolerate the heat, then he will have to work in a more normal temperature.” Plaintiff testified that he followed Dr. Mc-Hugh’s advice but that it had no apparent effect in relieving him.

The plaintiff further testified that between June 2, 1945, and July 13, 1945, he visited the first aid station several times for treatment and examinations or checks. He appears to be contradicted by the hospital record. The record shows that during that interval he only visited the first aid station two or three times for ailments not attributable to his burns. Furthermore, the hospital record shows that the plaintiff stated, on his termination examination on July 13, 1945, that he could not concentrate due to fear of fire and that it was better that he resigned. The hospital record seemed to have impressed the trial judge in his first reasons for judgment. However, by evidence taken on the reopening of the case, it is shown that the hospital record was not beyond criticism and was not altogether kept free from error. Plaintiff was emphatic that he had made several visits to the first aid station in regard to his scars.

Dr. James R. Godfrey, who testified for the plaintiff on the first hearing, was of the opinion that, due to the scars and the keloidal condition of the plaintiff, extremes of temperature, whether hot or cold, would be more uncomfortable to plaintiff than to a person of normal skin. He was of the opinion that plaintiff could not perform the duties of a foreman in the sodium plant unless it meant work or go hungry.

Dr. R. T. Stephenson, who testified for the defendant on the first hearing, was of the opinion that plaintiff could perform his former duties as foreman in the sodium plant. He based that opinion on his opinion that persons with scar tissue can tolerate temperature extremes as easily as persons without and that keloidal formations are less sensitive to extremes of temperature than normal skin. However, he admits that “young keloids will probably be more sensitive to temperature than old ones; that having hardened with age will be less tender.” On his examination of the plaintiff, he classified the keloidal formations on the right elbow and right forearm as young, both of which were tender.

Dr. Jeff McHugh, who testified for the defendant on the first hearing, was likewise of the opinion that plaintiff could perform his former duties as foreman in the sodium plant. However, he disagreed with Dr. Stephenson that the keloidal formations are less sensitive to extremes of temperature than normal skin.

As stated supra, the trial judge, in his first reasons for judgment, disregarded plaintiff’s testimony to the effect that he could not stand the heat and that the heat caused irritation of his burned areas and caused blisters under the skin and was of the opinion that plaintiff had resigned his position not because he was unable to perform his duties as foreman, but because he had become apprehensive that other explosions would occur (somewhat of a hysteria). The trial judge held that such was not compensable.

The trial judge, in his second reasons for judgment states:

“Following the granting of plaintiff’s motion to re-open this case, plaintiff at his own expense returned to Baton Rouge from Colorado, where he is now living, in order to undergo actual tests to determine the effect of the heat on his skin. Although the evidence shows that since plaintiff left the employ of defendant, the temperature in the cell room where plaintiff was employed has been reduced by installation of additional ventilation equipment, still, according to the report of Dr. McHugh, who examined plaintiff on the morning of February 14, 1947, at 6:42 a. m. prior to his entry into the cell room and found him all right and again at 2:55 p. m. after he had remained in the cell room for the day, plaintiff complained that he had some itching of all the scars and there was ‘a small blister over the external aspect of the right elbow just posterior to the lateral epicon-dyle.’
“On February 15th, 1947, the doctor again examined plaintiff and found, ‘The blister on the elbow was receding. There were two blisters on the scar just posterior to the one found when he left off work. No ill effect was noted on any other scars.’
“Dr. McHugh’s conclusions were: ‘It is my opinion that Mr. Sutcliffe could resume his former work. If he were doing same it would be advisable to apply a heavy vas-eline on the scars each day. It is possible that he does have itching when subjected to extremes of temperature and I would classify that as an annoyance but not as disabling him from his former work.’ ”
“When Dr. McHugh was testifying the Court directed the following question to him:
“ ‘Were the tests that you made sufficient, in your opinion, to ascertain the effect on this man’s health in working in the cell room up there ?’
“His answer was:
“ ‘Well, I would say that it would probably be necessary to observe him over a period of a month or six weeks to be certain of that, but my opinion would be that there would be no ill effects on his health, that the only result of working in there might be some itching, and there might be some little blistering on the small area on which he has a keloid scar. Otherwise, I do not think there would be any ill effect on his health.’
“The doctor further testified that he was of the opinion that the annoyance from the itching and blistering might disappear within a period of two weeks to a month. He based this opinion on past experience with the same condition.
“Though this Court has utmost confidence in Dr. McHugh’s opinion, the test, in my opinion, serves to corroborate the testimony of plaintiff that he could no longer perform the duties for which he was employed without ill effect on himself. From my appreciation of the interpretation of the Workmen’s Compensation Law, an employee is disabled within the meaning of that law if the' performance of such duties produces pain and discomfort. I now am of the opinion that such is the case with Mr. Sutcliffe— that is — that he is unable to perform his duties as foreman in the sodium plant without itching and blistering.”

A careful reading of all the testimony and particularly that part introduced on the re-opening of the note of evidence conclusively leads us to the opinion that the trial judge did not commit a manifest error in the evaluation of the testimony nor in the facts of the case and the law applicable thereto.

There is no question of plaintiff being a malingerer or in any way attempting to exaggerate his condition. He was earning at the time of his injury a monthly salary of over $360.00 per month. It is unreasonable to believe that he would deliberately forego that salary for a mere $20.00 per week unless he had good and valid reasons. These reasons were fully explained by the test conducted after the re-opening of the case.

In the alternative, the defendant contends that the plaintiff should not be awarded compensation for more than one hundred weeks for the impairment of a physical function as provided for Sec. 8, Paragraph (3), should be Subdivision 1(d) 16 of the Compensation Act, Act No. 242 of 1928, p. 358. Without any extended discussion, we find this contention without merit. There was no impairment of a physical function. There is no question that he had the full use of all the members of his body. Furthermore, the disability complained of does not fall under Subdivision 1(d), Paragraph 16, but is governed by subdivision 1(b).

For these reasons assigned, the judgment appealed from is affirmed.


text:
    BITUMINOUS FIRE & MARINE INS. CO. v. ALLEN.
    No. 3018.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Durrett & Hardin and W. B. Holcombe, all of Baton Rouge, and R. H. Kilbourne, of Clinton, for appellant.
    W. F. Kline, of Clinton, for appellee.
   DORE, Judge.

This suit arises out of a collision which occurred on the night of December 19, 1945, between an automobile owned and driven by defendant C. P. Allen and an automobile owned by W. H. Gunby and driven by his son, William L. Gunby. As a result of the collision, the Gunby automobile was damaged in the alleged amount of $292.19. The Gunby automobile was covered by insurance issued by Bituminous Fire & Marine Insurance Company, under the terms of which the insurer paid W. H. Gunby the sum of $242.19, being the full amount of damage claimed, less $50. The suit is by the insurer on its own behalf for the sum of $242.19, and for the benefit of its assured, W. H. Gunby, for the sum of $50, and is based on the allegations that the collision and resulting damage was wholly and entirely due to the gross negligence of the defendant, C. P. Allen, in six specific respects, to-wit: (1) In driving his automobile in his wrong lane of traffic; (2) in failing to pull over into his proper lane upon the approach of the Gunby automobile and the sounding of the horn thereon; (3) in failing to keep a proper lookout; (4) in failing to keep his automobile under proper control; (5) in failing to drive with proper cape and proper concern for the other cars, and (6) in driving with more than one passenger on the front seat creating a condition preventing the defendant from having proper control.

The defendant, in his answer, denies that he was guilty of any negligence, and avers that should the Court find him guilty of any negligence, that the collision was contribu-torily caused by the negligence of William L. Gunby, the driver of W. H. Gunby’s automobile, which contributory negligence was a proximate cause of the accident, and bars recovery herein.

After trial of the case the trial judge, without assigning written reasons, rendered judgment in favor of the defendant, dismissing plaintiff’s suit at its costs. Plaintiff has appealed.

It is shown by the evidence that at the time of the collision the plaintiff’s car was occupied by young Gunby alone, as driver, and that the defendant’s automobile was occupied by defendant Allen, as driver, with a Miss Day immediately to his right and a Mr. Robert Smith immediately to her right on the front seat, and four persons on the back seat, to-wit: Mr. and Mrs. Leo Hurst, Carl Courtney and John Allen Turnipseed. These occupants of the automobiles were the only eye witnesses to the collision, and it was shown that all of them, until a short time before the collision, had met at the Club Reo, situated on the outskirts of Jackson, and had all partaken of whiskey for some two or three hours.

W. L. Gunby, testifying for plaintiff, states that he was driving at a reasonable rate of speed, going uphill out of Jackson, in an easterly direction, and keeping to his right side of the highway and that as he was coming up the hill he noticed the defendant’s car coming down the hill into Jackson and that “I looked up just in time to see we were going to hit. That is about all I can tell you.” He states that he saw the lights of the Allen car at a distance of about 500 yards, but this is merely an approximation and probably inaccurate. The only definite part of his testimony is that he claims he was entirely on his right hand side when the collision occurred and that he was struck on the end of the “front left hand bumper, left hand wheel, and struck back rear fender.” He admits that he did not blow his horn before the collision, as alleged in the petition, and with reference to the question as to whether or not he dimmed his lights, he states: “I am pretty sure the lights were already that way”. He admits that the whole crowd was at Club Reo and that there was some drinking, and testifies that he cannot remember whether he was drinking or not. The fact remains that he was at this night club with the people involved in the collision, and others, for several hours and that the crowd was there for the purpose of drinking whiskey. He testifies that toward midnight he took some girls back to their home in Jackson, and that the collision occurred on his way back; that, in effect, he was driving to his extreme right and keeping his eyes on the side of the road and at the time of the collision he was on the right side of the road, but was not off the asphalt, and that from where the collision occurred 'he would say that the Allen automobile was in the center of the road. C. P. Allen, the defendant, testified that at the time of the collision he was returning with his party to Jackson, travelling on his side of the road and that as he was going down an incline and had reached about the middle of the incline, he saw the Gunby automobile and that as the Gunby automobile got in front of him, “he (Gunby) veered and tore my right wheel off, and come on down side the car.” He testified that neither he nor Gunby dimmed their lights prior to the collision; that every one had been drinking.at the Club Reo, including young Gunby, “but I don’t say he was drunk.” He admits that Gunby’s car was on its proper side of the road as he approached it, but that as it got right in front of him, it veered to the right (apparently meaning Allen’s right).

Leo Hurst testified that he was riding on the rear seat of the Allen automobile when the collision occurred, and, he attributes the collision to the fact that both drivers were trying to hog the road. He, too, testified that all members of the party, had been drinking.

Carl Courtney testified that on the night of the collision he and Smith and Turnip-seed had been at Club Reo drinking and that they got a ride back with Allen; that he did not think anybody was drunk, but everybody had been drinking. He stated that he did not know anything about the collision, outside of the fact that it occurred and that he was riding in the rear seat of the Allen automobile.

Miss Evelyn Day testified that she was riding with Allen on the front seat, and that “As we were going around the curve at the top of the hill the other car lights were coming up and I told Clifton Allen that there was another car coming — for him to pull over some. He was ‘kinda’ in the middle of the road and he did. When the car was in front of us the lights blind» ed me and the next thing I knew we hit.” She states that “I think both were partly in the middle of the road.”

Turnipseed testified that he was also riding in the back seat of the automobile; that he was intoxicated and that he knows nothing about the collision, except that it occurred.

The other eye witnesses to the collision, Mrs. Leo Hurst and Smith, did not testify.

The only other witnesses in the case were Mr. W. II. Gunby, the owner of the automobile driven by young Gunby, his son, who merely testified as to the damage to his automobile, and Mr. Joe Hurst who testified that he investigated the wreck after the collision; that he did not look for skid marks; that he found plenty of glass in the road and that “the glass was near the center of the road, a little back to the south side of the road;” there was ncv glass on the north side, and that “when they hit it was near the center of the road.” (His opinion from observing the physical facts.)

It is apparent from a review of the testimony in this case that both drivers were guilty of negligence in that they had both been drinking .and were driving under the influence of alcohol, and in that neither driver was keeping a proper lookout and both were obviously driving in the middle or too close to the middle of the road. The trial judge has not assigned any written reasons for his judgment, but it appears that he must have believed the testimony of Mr. Leo Hurst to the effect that the collision was caused by the fact that both drivers were trying to “hog” the road and that neither took the necessary precautions of pulling to his right.

The serious question in the case is whether or not the negligence of young Gunby, the driver of the Gunby automobile, can be imputed to his father, the owner of the automobile, and to his father’s insurer. The defendant contends that his case rests chiefly on that paragraph in Meyer v. Rein, La.App., 18 So.2d 69, 70, where, in the syllabus thereof, it is stated: “In action for damages to plaintiff’s automobile sustained in a collision, any negligence, on part of the driver of plaintiff’s automobile could not be relied upon to defeat plaintiff’s claim in the absence of a plea of contributory negligence.” Defendant herein contends that he has pleaded contributory negligence, but examination of this plea shows that the contributory negligence pleaded is on the part of young Gunby, who is not a party to the suit, and not on the part of his father, owner of the automobile, and his insurer, who are the plaintiffs herein. The negligence of young Gunby cannot be imputed to his father unless it is shown that he was operating the automobile on behalf of his father, as his agent or his employee. Such is not the case here, for obviously young Gunby, aged 22, had merely borrowed his father’s automobile for his own personal pleasure. The rule of law existing in this State is correctly stated as “* * * the contributory negligence of one to whom an automobile is loaned by its owner and who is using it for his own pleasure or benefit is not imputable to the owner so as to prevent the latter’s holding another liable for negligently injuring the car, unless the owner retains some direction or control over the action of the bailee.” 5 Am.Jur., Par. 493, page 781. While it seems clear that the accident was caused by the concurrent negligence of the defendant and young Gunby, since the negligence of young Gunby cannot be imputed to the plaintiff herein, there should have been judgment in favor of plaintiff.

In so far as the question of the quantum is concerned, the amount alleged in the petition has been proved.

For these reasons assigned, it is ordered that the judgment appealed from be annulled, avoided and reversed, and accordingly, that there now be judgment in favor of the plaintiff, Bituminous Fire & Marine Insurance Company, individually and against the defendant, C. P. Allen, in the full sum of $242.19 and further judgment herein in favor of the said plaintiff for the use and benefit of W. H. Gunby against the said defendant in the additional sum of $50, together with legal interest thereon from judicial demand, until paid, and all costs.


text:
    HOWARD v. GREAT AMERICAN INDEMNITY CO. et al.
    No. 3025.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Decree Amended on Denial of Rehearing Nov. 10,1948.
    See 37 So.2d 463.

      Leslie A. Fitch and Durrett & Hardin, all of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller and Roland C. Kizer, City Atty., all of Baton Rouge, for appellees.
   DORE, Judge.

The plaintiff filed this suit against the City of Baton Rouge; the Baton Rouge Water Works Company and the latter’s insurer, Great American Indemnity Company, in solido, to recover damages in the sum of $6,205.11, on account of personal injuries received by her on January 1, 1945, at about 10:30 P. M., when she stepped into a hole adjacent to a water meter box near the curb of North Fifteenth Street and on the portion of ground from the said curb to the property line on the west side of said street reserved for a sidewalk in the City of Baton Rouge, and fell, breaking her right ankle. The Charity Plospital at New Orleans filed an intervention praying that in the event there should be judgment in plaintiff’s favor then there be judgment in its favor for medical and X-ray expenses furnished plaintiff, together with attorneys’ fees.

Plaintiff alleged that at about 10:30 P. M., on January 1, 1945, she was walking northward on the paved portion of North Fifteenth Street between Convention and Florida Streets. There was no concrete sidewalk in that block, and plaintiff alleged that pedestrians, to the knowledge of both the City of Baton Rouge find the Water Company, were accustomed to walk along a well-defined pathway on the west side of North Fifteenth Street immediately adjacent to the curb of the pavement. Plaintiff further alleged that neither the City nor the Water Company provided lighting facilities of any kind for that area and that it was very dark when and where she was injured. She alleged that as she was walking “on the sidewalk” she was thrown to the ground because her right foot went into a deep and dangerous hole in and adjacent to the said sidewalk thus causing her serious personal injury. Plaintiff alleged that the Water Company had excavated the hole for its meter box and had not properly and adequately filled the hole; that the hole surrounding the meter box was itself approximately two and one-half (2%) feet in width and three (3) feet in length; that where plaintiff fell and received her injuries the hole was approximately fourteen (14) inches deep; that the said hole was partially obscured by grass and weedsl She alleged that the City of Baton Rouge was charged with actual knowledge of the installation of a meter and meter box which caused the hole and that it was the duty of the City to make such inspections of its streets and public walkways adjacent thereto as to make certain that said meters and meter boxes did not create a hazard to pedestrians, and the duty of the Water Company to maintain same so as' not to interfere with the safe use of said street and walkway. Plaintiff relied on the doctrine of res ipsa loquitur and, in the alternative, she alleged that the Water Company was negligent in the following respects:

(1) That the hole around the meter box was inadequately filled and the earth settled and was not level with the sidewalk.

(2) That the Water Company failed to inspect the water meter at reasonable times in order to keep the meter level with the sidewalk and safe for pedestrians.

(3) That the Water Company knew or should have known, through its employees who read the meter monthly, that the hole surrounding the meter box made the sidewalk dangerous and was a hazard to persons walking on it at night.

Plaintiff alleged that the negligence of the City of Baton Rouge consisted of:

(1) its failure to inspect the installation of said water meter and to require that it be properly done;

(2) its failure to cause the hole, which had existed many months, to be filled and the sidewalk made safe for pedestrians;

(3) its failure to maintain the walkway and pathway, which constituted in fact and in law a sidewalk, in a reasonably safe condition for use of persons exercising ordinary care, as was its duty.

Plaintiff also alleged that said hole, while visible in the daytime, was totally invisible at night; and that she was not aware of the softness of the ground around the meter box or the dangerous condition resulting therefrom. She alleged that the City of Baton Rouge, through its officials, had ample opportunity to observe the dangerous and unsafe condition of the sidewalk and to correct same, but failed to do so.

In its answer, the City of Baton Rouge made a general denial of liability and averred that if there were a hole it was adjacent to the sidewalk and not in or on the sidewalk, and if plaintiff were walking in a hole, she was not walking in a place where she had a right to walk. Further answering, the City of Baton Rouge alleged that if plaintiff was hurt it was entirely because of her own negligence, and said defendant specifically pleaded contributory negligence on the part of plaintiff in that she lived and has lived for some time prior to the alleged accident in the immediate vicinity of said meter box and traversed daily the area wherein she claims to have been injured and was, therefore, entirely familiar with the walk and any depression or hole and the extent to which the pathway was lighted at night. The defendant City further alleged that persons living in the vicinity of the place where plaintiff alleged she was injured, traversed daily the pathway or walkway without mishap. It also alleged that the upkeep of the meter box or its place of location, or the safety thereof is not its responsibility and that it is not incumbent on the City of Baton Rouge to supervise or investigate the activities of The Baton Rouge Water Company in respect to the operation of its business. It further alleged that North Fifteenth Street is primarily a right-of-way for the Railroad Company and no streets or sidewalks, as a general rule, are maintained along said street; and that there is a hard surface street or drive along the railroad tracks with a curb and a gravel passageway or walkway, all of which are in safe and unhazardous condition, and if plaintiff had walked where she should have walked, she would not have been injured, if in fact she was injured. This defendant denied that it had any knowledge, either actively or constructively, of any defect or hole rendering the walkway unsafe or hazardous.

Defendants, Baton Rouge Water Works Company and its insurer, Great American Indemnity Company, also made an answer of general denial of liability as to both the main demand and the demand made on intervention. They specifically denied that the place where the plaintiff was allegedly injured was and is &■ public sidewalk for the upkeep and inspection of which the Water Company was and is responsible. They alleged that the alleged accident was due to no fault, carelessness or negligence whatsoever on the part of said defendants, but was due solely and entirely to the gross carelessness or negligence of some other party for whom they are not responsible. In the alternative, they averred that plaintiff was guilty of negligence causing or contributing to said accident in that she had lived in the immediate proximity of the location of said meter box for many months prior to the date of the alleged accident; she had daily walked on the ground near the location of said meter box and was fully aware of the condition of the said meter box and of the terrain adjacent thereto, that she knew; or, with reasonable care and caution, should have known of any defect in the box or the ground around it and, with the exercise of ordinary caution, should have and would have avoided the alleged accident, and her failure to see and avoid the alleged defect constituted gross negligence on her part and -is a bar to her right to recover for her alleged injuries.

After trial on the merits, the trial court, without written reasons assigned, rendered and signed a judgment rejecting plaintiffs demand against all defendants and dismissing her suit. From the judgment of dismissal, plaintiff has appealed.

There are three questions to be considered by this Court; First, the negligence of the City of Baton Rouge; second, the negligence of the Baton Rouge Water Works Company; third, the contributory negligence of the plaintiff.

North Fifteenth Street is a street within the City of Baton Rouge, running approximately north and south between North Boulevard and North Street, and intersecting Florida and Convention Streets. The Louisiana and Arkansas Railway Company’s track occupies the eastern portion of the street; the western traffic portion of the street is hard surfaced between Florida and Convention Streets.

At the time of receiving the injuries set forth in her petition, plaintiff was residing, and had been for some eight years prior thereto, at municipal number 233 North 13th Street, on the west side of said street, between Convention Street to the south and Florida Street to the north. The sidewalk, on the west side of the street and within that block, is not paved, but is simply a dirt, mixed with gravel, sidewalk, of about four feet in width, with a concrete curb of about four inches wide and six inches high separating the dirt sidewalk from the paved vehicular portion of the street. There is a winding beaten path of about 18 inches on the dirt sidewalk leading from Convention Street to the north and extending beyond- plaintiff’s house. It is very irregular in shape. The remaining portion of the' said sidewalk, on both sides of the said path, was overgrown with weeds.

The evidence shows that the meter box and the hole about it, and into which plaintiff stepped, are some fifteen feet south of the front of the house in which plaintiff lived at the time of receiving her injuries, some fifteen inches west of the concrete curb and close to or adjacent to the path to the east. The hole about the meter box had been permitted by the Baton Rouge Water Works Company and the City of Baton Rouge to exist for many months, if not for years. The City and the Water Works Company permitted grass to grow around and in the hole so as to obscure it, making it practically unnoticeable. The evidence further shows that the meter box was about four inches above the level of the ground and partly obscured by the weeds around it.

It is the duty of a municipality to keep its sidewalks in such a condition that a pedestrian who is ordinarily careful will not be exposed to danger, and such pedestrian is required to use only ordinary care. He is not required to keep his eyes constantly on the walk in front of him and watch every step he makes. He has a right to assume that the sidewalk is safe for travel, and if he sustains an injury by reason of the unsafe condition of the sidewalk, the burden of showing that he was not using ordinary care, or contributed to the injury by his own negligence, rests upon the municipality. Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58; Holbrook v. City of Monroe, La.App., 157 So. 566; Rodriguez v. City of Sulphur, La.App., 28 So.2d 771; White v. City of Alexandria, La.App., 35 So.2d 810.

The evidence shows that plaintiff and her companion had been to a picture show on North Boulevard some three blocks to the south and west of her residence. After the show and on their return home, plaintiff and her companion, upon reaching the intersection of Convention and North Fifteenth Streets, walked northerly along the paved portion of North Fifteenth Street, arrived at what they took to be the front of plaintiff’s house, stepped over the curbing and westward, towards plaintiff’s house. In so doing, plaintiff stepped into the hole, fell forward and to the ground and injured her foot by breaking her ankle.

It is evident from the fall and the resulting injury that the hole or depression was of sufficient depth so as to make the sidewalk unsafe and dangerous, particularly .at night. In fact, the City of Baton Rouge does not contend that the hole was not present. It principally relies on two defenses, first that it did not have notice of the condition of the sidewalk, and, second, that the plaintiff was guilty of contributory negligence. As to the first defense, the evidence is conclusive that this hole or depression existed for a period of months, if not for years. It had existed for a sufficient length of time to charge the City with constructive notice of the defect. As to the second defense, we shall hereinafter discuss it in conjunction with the like defense of the Water Works Company.

The evidence shows that the water meter was installed, with the permission of the city, by the Water Works Company some four years prior to the accident to serve a customer, a neighbor of plaintiff. Once a month an employee of the said company would visit the meter and would read the same. It was its duty to keep the ground about the meter box in a safe condition for the passage of pedestrians using the sidewalk. It permitted the hole about the meter box to remain in such a condition as to be a virtual trap for some length of time and in allowing grass to grow at and about the meter box and the hole. It is passing strange that the Water Works Company did not call the employees or employee who monthly read the meter to testify as to the cause of the hole and the condition existing about the meter box. The main defense of this defendant, as we understand its briefs, is that the plaintiff was guilty of contributory negligence.

The next and most serious question is whether the plaintiff was guilty of contributory negligence. The ingenious counsel for the plaintiff contend that contributory negligence has not been properly pleaded by either the Water Works Company or the City of Baton Rouge.

With reference to the Water Works Company’s plea, the following is quoted verbatim from its answer: “50. * * * In the alternative and in the event the Court should find that the plaintiff had the alleged accident, * * *, and that the Water Company was guilty of negligence or carelessness proximately causing or contributing to the said alleged accident, * * *, then in that event respondents aver that the plaintiff was guilty of negligence proximately causing or contributing to the said accident, particularly but not exclusively for the reasons hereinafter stated. 51. Respondents allege, on information and belief, that the plaintiff lived in the immediate proximity of the location of the said meter box for many months prior to the date of the alleged accident; she daily walked on the ground near the location of the said meter box and was fully aware of the condition of the said meter box and of the terrain adjacent to and in the proximity of the said meter box, and if there was any defect in the meter box or in the ground adjacent thereto, the said plaintiff knew of same, or with reasonable care and caution, should have known of the existence of same many months prior to the alleged accident, and with 'the exercise of ordinary caution, the plaintiff should and would have avoided the alleged accident, and her failure to see and avoid the alleged defect constituted gross negligence on her part and is a bar to her right to recover.”

It is well settled in our jurisprudence that contributory negligence being a special defense, must be specially pleaded before it can be considered. Article 50 of defendant’s answer quoted above fully meets that requirement. Furthermore, the jurisprudence is well established that the facts relied upon as constituting contributory negligence must be set out. That requirement has also been met by the aver-ments of facts as contained in Article 51 quoted supra. The only question is whether or not such facts constitute contributory negligence. Other facts but those set out in the plea cannot be considered. See McDonald et al. v. Stellwagon et al., La.App., 140 So. 133. The burden of proof rests with the defendants. Of course, in cases of this kind, it is practically impossible for the defendants to show, except from the plaintiff’s own testimony that she did not exercise care and caution.

The plaintiff testified that she had lived at 233 North 15th Street for about eight years; that she and her friend had been to a picture show and on their return to her house, they walked on the paved portion of the street; that it was dark and it was her intention to leave the paved portion and cross the sidewalk after passing the meter box but on account of the darkness, she crossed at about the meter box and did not see the hole. However, she admits that she travelled on the little winding path on the sidewalk many times and knew of the location of the meter box and the hole adjacent thereto. She did not know the depth of the hole. In the spring and summer grass would grow and die in the winter filling the hole. She had never examined the hole. Under these facts we cannot hold plaintiff guilty of contributory negligence. Much is said of the presence of street lights at Convention and Florida Streets and lights from Wolf’s Bakery across the street from plaintiff’s house. This fact cannot be considered in that it is not pleaded in the plea. They do not aver that the locus in quo was very well lighted. According to plaintiff, she was unable to judge her whereabouts on account of darkness. The testimony shows that this hole in the sidewalk was obscured by the grass which had grown and died, making the defect or hole obscured from vision of plaintiff. This case is somewhat similar to the cases of Parker v. City of New Orleans, La.App., 1 So.2d 123 and Rodriguez v. City of Sulphur, La.App., 28 So.2d 771. These defendants have failed to sustain the burden of proof.

As to the City of Baton Rouge’s plea of contributing negligence, it is set out in Articles 50 to 55, inclusive, as follows:

“50. That if Plaintiff was hurt, it was entirely because of her own negligence, and your Respondent specifically pleads contributory negligence.
“51. Respondent further says that the Plaintiff lives and has lived for some time prior to the alleged accident, if any, in the immediate vicinity and has traversed daily the area wherein she claims to have been injured, and was, therefore, entirely familiar with the walk and knew of her own personal knowledge of any depression or hole and personally knew the extent to which tlae path-way or walk-way was lighted at night.
“52. Your Respondent further alleges that the path-way or walk-way was definitely defined and clearly ligible (visible) and if the Plaintiff stepped in a hole, she did so after stepping off the walk-way.
“53. Your Respondent further alleges that the persons living in the vicinity of the point of the alleged accident traversed daily the path-way or walk-way without mishap.
“54. Your Respondent further alleges that the up-keep of the meter box or its place of location or the guarantee of the safety therefor is not the responsibility of the City of Baton Rouge, nor is it encumbered (incumbent) upon the City of Baton Rouge to supervise or investigate the activities of the Baton Rouge Water Works Company in respect to the operation of their business.
“55. Your Respondent further alleges that North 15th Street is primarily a right-of-way for the Railroad Company and no streets or side-walks, as a general rule, are maintained along said street and along the particular street referred to in Plaintiff’s petition. There is a hard surface street or drive along the railroad tracks with a curb and a gravel passageway or walk-way all of which are in a safe and unhazardous condition, and if the plaintiff had walked where she should have walked she would not have been injured, if injured.”

The plaintiff’s counsel seriously contends that the City did not offer the plea in the alternative but pleaded it as an affirmative defense and not as a special plea. Therefore, it admitted the negligence of the City. We find no merit in this contention. Although not clearly stated that it is an alternative plea, yet the quoted articles are in such language as to clearly denote that the City was pleading in the alternative.

As to the other contention of plaintiff’s counsel that, the City has failed to aver facts upon which the plea is based, it is clear from the reading of the above that the facts set forth are sufficient to base a plea of contributory negligence. These facts are practically the same as set out by the Water Works Company, save the additional facts that the vicinity was well lighted, affording plaintiff ample opportunity to avoid stepping into the hole and that she had a safe route on which she could and should have walked.

Our remarks to the Water Company’s plea are applicable to the plea of the City. With regards to the vicinity of the hole and water-meter being well lighted, we say that the evidence is conflicting. The accident happened on January 1, 1945. At that time we were in the Second World War. During that period, there were “black-outs” in the City of Baton Rouge. The evidence is not clear as to when these regulations were lifted. However, conceding that these restrictions were lifted at that time, the evidence shows that there were street lights on Convention and Florida Streets. The evidence does not show that these lights greatly lighted thm vicinity in question. There is also doubt or conflict in the testimony that the light from Wolf’s Bakery lighted this vicinity. Conceding that defendants have proven that the street and vicinity were well .lighted, the fact yet remains, as previously stated, that the hole was filled and surrounded with grass, making it very obscured.

As to the contention that plaintiff had a safer way to return home, we are of the opinion that she used the safer method of ■returning to her home. The sidewalk was a dirt-gravelled one with a winding, irregular path to follow. There is evidence that it had rained that afternoon or evening. The said walk was grassy on both sides of the narrow path. The street was paved; it was but natural for the plaintiff and her companion to take to the paved portion of the street. We cannot see wherein the fact of her walking on the paved portion of the street in any way can be said to be negligence on her part and a proximate cause of the accident.

It is our conclusion that the City has failed in its burden of proof to show that plaintiff was guilty of negligence which was a proximate cause of the accident.

As to the quantum, plaintiff has proved medical expenses to the amount of $23.68 and an outlay of $18.40 for travelling expenses, or a total of $42.08. Plaintiff sustained a fracture of the right fibula. X-Rays taken on April 20, 1945, revealed “what is probably an old oblique fracture of the right fibula at the lateral malleolus. The position is good.” Plaintiff was confined to her bed for eight days. A walking ■cast was applied at the Charity Plospital at New Orleans, which was worn by the plaintiff for almost two months. This cast was replaced by an Unna paste boot which was worn for about a month. This, in turn, was replaced by an Ace bandage. She thereafter used a crutch for about two months. She was discharged by the Charity Hospital on June 1, 1945, and returned to work on July 8, 1945. On May 5, 1945, Dr. J. R. Godfrey reported: “Healing is coming along excellently and the bone fragments are in fine position. Because of the newness of the fracture in the weight-bearing area, I think that sensitivity and limited motion, as well as occasional swelling is to be expected. I feel, however, with activity in six months’ time, Stella will be unable to tell her right ankle has ever been injured.” Plaintiff testified that her foot would occasionally swell after a day’s work and that at the time of the tri.al in January, 1946, a little over the six months’ period fixed by Dr. God-frey, her foot would swell at times, but not regularly, the last time being some three weeks before the trial. Under the medical evidence in the record, we feel that the plaintiff had fully recovered at the time of the trial without any residuary effect. Under these facts we are of the opinion that an award of $2,500.00 for her pains, sufferings and injury to be adequate.

The amount claimed for the medical care of plaintiff by the Board of Administrators of the Charity Hospital at New Orleans is not disputed and is fully proved.

For these reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from is hereby annulled, reversed and set aside; accordingly,

It is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Stella Howard, and against the defendants, City of Baton Rouge and Baton Rouge Water Works Company and Great American Indemnity Company, in solido, in the full sum of Two Thousand Five Hundred Forty-two & 8/100 ($2,542,-08) Dollars, together with legal interest thereon from judicial demand until paid.

It is further ordered, etc., that there be further judgment herein in favor of the Board of Administrators of the Charity Hospital at New Orleans, and against the said above named defendants, in solido, in the full sum of Thirty-nine & 50/100 Dollars ($39.50), together with legal interest thereon from judicial demand, until paid, and also 10% Attorneys’ fees, on both principal and interest.

It is further ordered, etc., that the said defendants, in solido, pay all costs.


text:
    POWELL v. ICE SERVICE, Inc., et al.
    No. 3031.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Dale, Richardson & Dale, of Baton Rouge, for appellant.
    Greene & Womack, of Baton Rouge, for appellee.
   DORE, Judge.

This is a suit to recover for personal injuries sustained by the plaintiff as a result of being struck by an ice truck of the defendant Ice Service, Inc. The petition alleges that on or about August 17, 1946, at about 3 :30 P. M., the petitioner was struck by an ice truck driven by an employee of Ice Service, Inc., while petitioner was standing beside a parked automobile in an alley known as North 20th Street, in the City of Baton Rouge. It is shown that the truck was being driven by the employee of the-defendant Ice Company in the course of his employment, and it is alleged that the plaintiff was damaged in the total amount of $17,270.96 representing loss of income at the rate of $9.00 per week for plaintiff’s expectancy according to American Experience Mortality Tables, for 26.22 years; $36 for medical treatment; $41.75 for drugs and back brace; and $48.76 for ambulance service; $4,000 for physical injuries; $1,000 for pain, suffering and shock. The suit is against both the Ice Company and its insurer, United States Fidelity & Guaranty Company, and is based on the allegation that plaintiff was struck and injured solely by the gross fault, willful and wanton carelessness and negligence of the defendant’s employee.

The defendants, in their answer, admit that the accident occurred at the time and place alleged, but deny any negligence on the part of defendant’s truck driver, contending that the accident and injuries were caused solely by the gross negligence of the plaintiff in placing herself in the path of the ice truck. The answer also denies that plaintiff’s present injuries are the result of the accident. In the alternative, the defendants plead contributory negligence on the part of the plaintiff, barring her recovery.

After trial of the case the trial judge rendered judgment in favor of plaintiff in the amount of $3,141.47, with legal interest from December 2, 1946, the date the suit was filed, and all costs. Defendants have appealed, and the plaintiff has answered the appeal, praying that the award be increased to the amount originally prayed for.

A review of the evidence reveals that at the time and place alleged, the plaintiff, a large colored woman, was standing by the left side of the automobile of a Mr. Levert, looking at some cloth material in the automobile which Mr. Levert was trying to sell her. The Levert automobile was parked on the right-hand side of North 20th Street, according to the preponderance of the evidence, and Mr. Levert was standing on the right hand side with the right door of his car, a 2-door sedan, open, and plaintiff had her foot on the fender on the left-hand side, with that door also open. North 20th Street, formerly known as Gass’ Alley, is a narrow street or alley running from North Street to Main Street, north to south, a distance of 2 or 3 blocks. The ice truck entered this street or alley from North Street and in attempting to pass the parked car and the plaintiff by the side thereof, pulled to its left, but failed to have sufficient clearence, consequently the right front of the body of the ice truck struck the plaintiff on her left side, near her hip, and pushed her over to the left front fender and hood of the car.

There is some contradiction in the testimony over several points, including the question as to whether the truck driver, upon entering North 20th Street, blew his horn, as to the speed at which he was driving, as to whether he stopped prior to proceeding by the parked automobile, and as to whether the parked automobile was on the right-hand side with sufficient space left for clearance of vehicles on the left-hand side, or was parked in the middle of the street, and as to whether the plaintiff, after having been struck, was able to walk away from the scene without assistance.

The plaintiff testifies that when she saw the truck coming into North 20th Street, she closed the door of the car with her left hand and started waving to the truck driver to stop, as she proceeded to the rear of the parked car in order to place herself in a position of safety, but that the truck kept coming on at a faster rate, without stopping, and attempted to pass on the left side, but failed to clear her and struck her and that is all she can recall about the accident until some short time thereafter when she found herself in bed at her house located a few feet from the scene of the accident. Her version of the accident is corroborated by Frank McGee, a painter, who ■ had been painting the roof of her house and who states he was on the northwest corner of the roof, at a point where he could observe all that happened. This witness states that there was sufficient room for the truck to have gone by, but that to do so the truck had to pass on a slight embankment on the left side, an elevation of about 6 inches, and that, in effect, the truck did go on this _ slight elevation, but not sufficiently to the left thereof, and that because of this elevation the truck body was tilted and the front thereof struck plaintiff. Like the plaintiff, he testifies that he made no stop until after he had struck plaintiff, and someone had hollored to stop and that he merely stopped a very short time and proceeded on.

Francis Williams, a colored man, who was sitting on plaintiff’s porch, testified to the same effect.

Mr. Levert, white salesman, testified practically to the same effect, except that he did state that the truck was driving at a very slow rate of speed, and that as he approached the parked automobile he shifted gears and attempted to clear the automobile and plaintiff, but did not allow himself enough room to do so.

The truck driver testified that upon entering the intersection of North 20th Street, he shifted to second gear because of an elevation at the intersection, and that he proceeded at a very slow speed and with utmost caution, and that as he arrived near the parked automobile of Mr. Levert, which he states was parked in the middle of the street, with both doors open, and with plaintiff standing at the left side with the door against her back, he came to a complete stop and that he then proceeded in first gear to go by, but that because of the elevation at the left side, the body of the truck tilted and that it struck plaintiff. In the answer it was alleged that plaintiff had closed the door and had stood with her back close to the parked automobile signalling the truck driver to proceed, but in his testimony the truck driver denies that such maneuver was made by the plaintiff and signal given by her, and, in effect, that he thought he had sufficient clearance, and therefore proceeded.

The other occupant of the truck, Robert Starks, colored boy of the age of 17, testified that he was in the rear of the ice truck at the time of the collision and thát he saw everything that happened; that plaintiff was standing inside of the left door as the truck approached, but that she closed the door and because of her changing position insufficient clearance' was left, and consequently she was struck by the body of the truck when it tilted upon going on the elevation on the left side. Frohi his testimony of his position in the ice truck it is difficult to believe that he could see what happened.

This witness, as well as the truck driver, testified that upon being struck plaintiff walked away from the scene to her house' without any' assistance, but all the other witnesses, including Mr. Levert, testified that she had to be assisted into her house arid to be placed in her bed.

It seems clear from the evidence of the actual happening of the accident that if plaintiff was guilty of any negligence whatsoever, her negligence was passive, and that she did everything she could to extricate herself from the dangerous position in which she found herself, but to no avail, because of the failure of the truck driver to give her a chance to do so. The truck driver, on his own testimony, described the peril in which the plaintiff found herself right after he had entered 20th Street, and from the preponderance of the testimony, he most certainly could have prevented the accident, either by stopping until plaintiff had removed herself from the scene, or by driving his truck further to the left. There is no testimony as to the width of the street, but the preponderance of the evidence is that there was sufficient clearance for the truck to have passed the parked automobile and plaintiff. If he had gone further to his left the accident would not have happened. It seems clear that the accident was a result of the exercise of poor judgment on the part of the defendant’s truck driver, and that his action constitutes gross negligence and the sole proximate cause of the accident, and that therefore the defendants are liable for the damage resulting to the plaintiff herein.

As to the quantum of damages, the evidence is not clear-cut. It is shown that after tlie accident the plaintiff made three visits to the Charity Hospital in New Orleans, and that from the diagnoses of doctors who examined her there, she sustained a contusion on her left lower back and that she had a possible sacroiliac strain. . It is also shown that she has been some six weeks in bed right after the accident, and that according to the lay testimony she had remained disabled from doing any work since the accident. At the time of the accident, she was 42 years of age, and had been employed by Mrs. Belle Roddam, as a servant and nurse maid, with varied duties such as cooking, washing, cleaning house and taking care of children. Mrs. Roddam testified that she worked for her for some ten years, at an average wage of $8 to $10 per week. Mrs. Roddam and some other white ladies testified that since the accident they have visited the plaintiff and have administered to her in various respects, such as assisting her into and out of bed, rubbing her back with alcohol and applying infrared light treatment on her body; these witnesses have also testified that plaintiff has complained of pain ever since the accident and she is subject to hysteria and trembling of her hands. The trial judge comments that in the Court room she apparently had a continuous tremor of her right hand. Dr. Kern and Dr. McHugh testified that her condition of hysteria and present disability is not due to the effects of the accident, but due to childbirth resulting from having had 12 children. These doctors feel that in so far as the accident is concerned, this colored woman should have recovered completely in a period of about 8 weeks, for the reason that there were no objective symptoms of any permanent injury. She complains of pain in the intra-costal nerve in the region o,f the 11th and 12th ribs, but these medical experts discount her subjective symptoms on the theory that if the nerves were affected there would be objective symptoms shown by X-ray of injury to a rib or ribs and that the X-rays reveal no such objective symptoms. In effect, these doctors appear to be of the opinion that such pain as plaintiff states she has are either simulated or a result of her condition due to childbirth and that this is also true with reference to her condition of hysteria. In any event, there is no question that plaintiff sustained a rather severe blow from this heavy ice truck and that as a result she received a contusion and bruises which caused her much pain and suffering and was the direct result of her disability, at least for the period of time she was confined to her bed, or some six weeks, and probably the experience and resulting shock aggravated a pre-existing condition caused by childbirth. The trial judge did not favor us with written reasons for his judgment, but he apparently felt that from the testimony and from his observation of the plaintiff in the Court room, that she had sustained sufficient injury to entitle her to an award of $2,000 for that 'item. The remainder of his judgment apparently is for expenses for medical treatment, which is proved.

In so far as the item of loss of income of $9 per week is concerned it does not appear to be sufficiently proved that plaintiff is permanently disabled from earning this small income as a servant, and moreover she admits that she is now receiving an allowance from the Welfare Department of some $54 per month.

We feel that the amount awarded by the lower court is reasonable and we see no reason for disturbing his award, especially considering the fact that with the plaintiff there before him, he was in a better position to determine the amount of her disability and pain sustained in the accident.

For these reasons, the judgment appealed from is affirmed.


author: Le BLANC, Judge.

text:
    STATUM v. WARD.
    No. 3023.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.

      Dudley L. Weber, of Baton Rouge, for appellant.
    Moise Thibodeaux, of Baton Rouge, for appellee.
   Le BLANC, Judge.

As we understand the petition in this case, the demand is predicated on what is alleged to have been a commission for the sale of real estate. Plaintiff alleges specifically that on April 6, 1946, he listed his property for sale with the defendant D. E. Ward, operating his business as Ward Realty Company and that Ward agreed to sell his property for the sum of $8500. The original of the listing contract is attached to the petition and it shows that as a fact plaintiff did list his property with the defendant who was to obtain that price and that plaintiff would pay a commission of five per cent.

The petition sets out various other facts tending to show that the listing of the property 'by plaintiff was simultaneous with another contract under which he would purchase a larger tract of land for the sum of $11,000 from a party by the name of E. L. Woodside, which this same real estate agent had for sale and that it was based entirely on the defendant's ability to get $8500 for his property.

He then alleges that he put up a deposit of $685 with the defendant real estate company and that the deal fell through because defendant was unable to procure a purchaser for his property at $8500. His suit now is one to recover the $685 which he says was the commission that he put up for the sale of his property which the defendant never was able to effect and therefore he is entitled to a return of the amount so deposited by him.

The defense seems to be that there were two entirely separate and distinct agreements, one for the sale of plaintiff's property by the defendant and the other for the purchase by the plaintiff of the Wood-side property. The defendant contends that the Woodside property deal was actually effected by him; that the deposit of $685 put up by the plaintiff was to bind the sale of that property and that at the time the deposit was made Woodside agreed to let defendant retain the deposit as his commission on that deal. It further appears that defendant divided this amount with two other parties who, he contends, had worked up the Woodside sale and that he is not indebted to the plaintiff for any part of it.

The case was tried on these issues in the lower court and resulted in a judgment in favor of the defendant, dismissing plaintiff’s suit and rejecting his demand at his costs.

Whilst the facts are disputed as between the plaintiff and defendant, we have no hesitancy in agreeing with the trial judge in his finding that the sale of the Woodside property to the plaintiff was contingent upon the sale of plaintiff’s own property at $8500. It is true that the $8500 price was reduced because plaintiff himself testified that he had agreed on a lower price at $7500, but we do not think that that plays any part in adjudicating the issue that is before the court. Assuming that the demand is one for the return of a commission for an unexecuted sale of plaintiff’s property it is clear that under the facts testified to by all of the parties that this $685 was not deposited with the defendant as a commission for the sale of ■his property. In the first place under the contract of listing, the commission agreed upon is stipulated as being five per cent of $8500 and obviously that is not $685, the amount that is being demanded. In the second place, conceding that the two agreements were simultaneous and that the one depended upon the other, we are of the opinion that the written evidence found in the contract for the sale of the Wood-side property, which controls the oral testimony, proves that this $685 was never intended as a commission to be paid by the plaintiff on the sale of his property but was a deposit by him on the purchase price of the Woodside property and was to be included as part of the purchase price of that property when the sale was finally consummated.

The Woodside contract shows on its face that plaintiff was to purchase the Woodside property for $11,000, on which he was to pay $685 cash and to finance the balance of $10,315 within 60 to 90 days from date of the agreement. That is the contract which plaintiff himself signed, and which offer as made by him was accepted in writing by Woodside in the following words: ‘T accept the offer as signed above, and agree to pay to D. E. Ward, Real Estate Agent, the commission of $685 which has been included as a part of the purchase price as stated above.” That language is clear and unambiguous and we do not see how plaintiff can hope to get around it in this proceeding which he has brought against this defendant.

The testimony further reveals that the defendant did retain the $685 and divided it with two other people who had worked on the deal. Defendant Ward says that Mr. Woodside agreed to this and that would be his commission on the sale of his property. True, Mr. Woodside denies this but we believe that is what took place. At any rate, it would seem as though it is a matter of no concern to the plaintiff in this suit what was done as between Ward and Woodside with regard to that $685. In the manner in which he deposited it under his contract with Woodside it strikes us that as far as he was concerned, the money was in the hands of Woodside and if he was entitled to recover it from anyone it would be from him and not from the defendant, Ward. To recover from Ward ■he would have to prove of course that there was some further agreement between them or that he would be entitled to the return of his money if the deal did not go through.

The trial judge in his reasons for judgment referred to the fact that plaintiff had not alleged that the defendant had fraudulently taken his money and the implication is that he may have recovered on the ground of fraud having been perpetrated upon him by the defendant in the ■event he could have proved any. Counsel for plaintiff in brief states that whilst the petition does not allege fraud in so many words it is nevertheless replete with allegations that show bad faith on the part of the defendant. Even bad faith involves something more than a mere demand to recover a deposit as a commission on the sale of property which was never effected and it should have been alleged in greater detail than was done by the plaintiff ill this case.

We are of the opinion that the issues are restricted to those we have stated as being presented in the pleadings before the court and on those issues the proof supports the judgment of the lower court which rejected the plaintiff’s demand and dismissed his suit.

Judgment affirmed.


author: ELLIS, Judge.

text:
    STEWART v. KELLER et al.
    No. 3030.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.

      Fitch & Fitch and Taylor, Porter, Brooks & Fuller, all of Baton Rouge, for appellant.
    Dale, Richardson & Dale, of Baton Rouge, for appellees.
   ELLIS, Judge.

The plaintiff, Lester N. Stewart, has filed this suit to recover from the defendant, John J. Keller, individually, and Keller Oil Distributors, and Hardware Indemnity Insurance Company of Minnesota, the public liability and property damages insurer of John J. Keller and Keller Oil Distributors, all insólido, the sum of $1,-176.25 for damages to plaintiff’s automobile and for doctors bill, X-ray charges and expenses paid by the plaintiff as a result of injuries sustained by plaintiff’s minor son, Lloyd Stewart, and for physical pain and suffering sustained by said minor, all of said injuries and damages being sustained as a result of an automobile collision between plaintiff’s Dodge Sedan automobile which, at the time, was being driven by plaintiff’s minor son, Lloyd Stewart, and a 1940 model four and one-half ton Chevrolet tank truck owned by the defendants, John J. Keller and Keller Oil Distributors, and being driven and operated by their employee, Earl Wilson, who was also a minor.

Plaintiff alleges that on the date of the accident his said son, Lloyd Stewart, approached the intersection of Linwood and Seneca Streets, traveling at about 15 miles per hour, and that he looked to the right and left along Seneca Street; that there was no automobile or other traffic approaching from his left but that there was was on his right or west side of Linwood Street, the truck of the defendants traveling East, which truck was more than one-half a block away; that at the time he observed the truck of the defendants, Lloyd Stewart was only about twenty feet from the intersection, and that believing and having reasonable grounds to believe that he could cross the intersection in advance of the truck, entered and preempted the intersection; that he was just about to clear the intersection when his automobile was run into by the Chevrolet truck owned by the defendants; that the truck of the defendants struck plaintiff’s automobile broad-side near the middle. Plaintiff further alleges that the automobile was damaged to the extent of $51.25 and that plaintiff’s minor son was physically injured and as a result of such injuries petitioner was forced to expend for treatment of his minor son $25; that petitioner’s son suffered physical injuries, pain and suffering, which, together with the nervous condition resulting therefrom, was well worth the sum of $2500; however, on the date of the trial, plaintiff reduced this item to $500. Plaintiff specifically alleges and charges that the accident, injuries and damages were caused solely and entirely by the gross and negligent, careless and unlawful acts of Earl Wilson, driver of the defendants’ truck in the following respects:

(a) By the said Earl Wilson’s operating the said truck at a wanton, excessive, reckless, dangerous and unlawful rate of speed in excess of Forty-five (45) miles per hour, immediately prior to and at the time of the aforesaid collision.

(b) By the said Earl Wilson’s failure to have and keep the said truck under control, so as to bring it to a stop before striking the automobile of petitioner, Lester M. Stewart, or by his failure to so drive and operate said truck as to cause it to pass to the rear of and clear the said Dodge automobile being operated by the said Lloyd Stewart, which the said Earl Wilson could have done, and should have done in order to avail himself of the last clear chance to avoid the collision.

(c) By the failure on the part of the said Earl Wilson to keep a proper lookout, and to see and observe and heed the approach of the Dodge automobile being driven by the said Lloyd Stewart, at said intersection, and to slow down the speed of the said truck, or to bring the said truck to a stop in time to prevent its striking the Dodge automobile being driven and operated by the said Lloyd Stewart.

(d) By the failure on the part of the said Earl Wilson to recognize and yield the right of way to Lloyd Stewart, the said Lloyd Stewart having entered said intersection well in advance of the truck being driven by the said Earl Wilson, and the said Lloyd Stewart having pre-empted the right of way.

Defendants filed an exception of no cause or right of action which was referred to the merits, and thereupon defendants filed their answer which was a general denial of the material allegations of plaintiff’s petition and also set up contributory negligence on the part of the driver of the Dodge automobile. Defendant, Keller Oil Distributors, represented by the said John J. Keller, filed a reconventional demand in which they prayed for judgment in reconvention in the sum of $1,354.00 with legal interest thereon until paid, together with the cost of the reconventional demand. The District Court in written reasons held that each driver was equally negligent and that:

“The proximate cause of the collision therefore was in my opinion (1) the failure of the driver of plaintiff’s car to slow down the Dodge and stop the same after he saw the truck approaching so closely from the right, the truck having the right of way; (2) the failure of the truck driver after he saw the Dodge approaching the intersection at a rapid rate of speed to stop or slow down and permit the Dodge to pass.”

The Lower Court accordingly denied the main demand of the plaintiff and the re-eonventional demand of the defendant and the suit was dismissed at plaintiff’s cost.

From this judgment of the Lower Court the plaintiff and defendant have appealed.

This collision occurred at the intersection of Linwood Avenue, which runs North and South, and Seneca Street which runs East and West in what is known as Standard Heights, a suburb located just north of the city of Baton Rouge, at about 10:40 A.M. on September 5, 1946. The weather was clear and visibility was good. The intersection of these streets is north of and outside the city limits of the City of Baton Rouge and traffic in that intersection at the time of the collision was governed and controlled by the State Highway Regulatory Act, Act No. 286 of 1938.

Plaintiff’s Dodge automobile was being driven by his minor son, Lloyd Stewart, and was traveling south on Linwood Street, and defendants’ truck was being driven by Earl Wilson, also a minor, traveling East on Seneca Street at the time of the collision. Defendants’ truck was approaching the intersection of Linwood and Seneca Streets from the right of plaintiff’s car and, ordinarily, under the State Highway Regulatory Act, would have enjoyed the right of way.

It appears well established from the evidence that the collision took place in approximately the center of the intersection. The only eye witnesses to the accident were the drivers of the two vehicles. Lloyd Stewart, driver of the Dodge automobile, testified that the truck of the defendants struck his automobile on the right hand side and in corroboration of this testimony, plaintiff has offered in evidence several photographs of the automobile which show that all of the damage inflicted thereon was on the right side. Earl Wilson, driver of the defendants’ truck, who was approaching from the right, and who, under the Highway Regulatory Act, -had the right of way, testified that .he entered the intersection first, and that the truck did not hit the right side of the Dodge but that the right wheel of the Dodge hit the left front wheel of the truck, causing the truck to almost turn around, and that while the ■truck was in this position, the right side of the Dodge came in contact with the truck, causing the damage to the Dodge as shown in the photographs offered in evidence.

Regardless of which motor vehicle struck the other one, we are of the opinion that the case can be decided without delving into the realm of speculation from the physical facts, but rather on the testimony of the two drivers which clearly sustains the conclusion reached by the District Judge, that both were equally negligent.

Lloyd Stewart, who was driving south on Linwood Street, testified that his automobile was twenty-one feet north of the edge of Seneca Street when he first saw the Chevrolet truck belonging to the defendants, Keller Oil Distributors. The truck, when he first saw it, was approximately thirty paces or ninety feet from the edge of Linwood Street in a westerly direction on Seneca Street. He further testified that at the time he saw the Keller truck, he was driving between IS and 20 miles an hour but that he could not estimate the speed of the defendants’ truck that was approaching; that he reasonably thought that he had time to clear the intersection; however, he finally admitted that he did not know how fast he was traveling but he knew he was not going fifty miles per hour as testified to by Earl Wilson, driver of the truck, but he knows that he slowed down to IS miles per hour. He did not, however, apply his brakes at any time. He testifies that he could have stopped if he had realized that the truck was coming so fast but that after he observed it was coming fast, he tried to “beat it over.” In other words, he positively testified that he did not apply his brakes at all in an effort to avoid the collision but only speeded up his automobile in an effort to beat the truck across the intersection.

Earl Wilson, driver of defendants’ truck, testified that he was from twenty to thirty feet west of the edge of Linwood Avenue when he first saw the Stewart Dodge automobile, however, in stepping off the distance on cross examination, it was shown to be 39 feet. Wilson testified by stepping off the distance on direct examination that the Stewart automobile, when he first saw it on Linwood Avenue, was 42 feet from the north edge of Seneca Street. Earl Wilson testified that he could have stopped but that he had the right of way and further testified that: “If he (Lloyd Stewart) had tried to stop and I tried to stop there wouldn’t have been any accident.”

We agree with the trial Judge’s summation of the negligence of each driver as stated in his written opinion which is as follows:

“Each driver, in my opinion, saw the other in time to stop and slow down and avoid the collision. In my opinion one was about as negligent as the other.
“Stewart’s negligence consisted of his failure to yield the right of way to the truck which reached the intersection at approximately the same time. If, as he says, he was traveling only fifteen or twenty miles an hour, it seems to me that he should have been able within a distance of 21 feet to stop or at least slow down and permit the truck to proceed across the intersection.
“On the other hand, if his testimony is to be believed, the driver of the truck was also negligent. If as he says, the Dodge was approaching the intersection at a speed of forty miles an hour when the truck was about to enter it, with no apparent effort to stop and when both were about the same distance away, the mere fact that he had the right of way afforded no excuse for going into a known visible and obvious danger. His negligence in my opinion consisted of doing this very thing.”

It is therefore ordered that the judgment of the District Court be affirmed.