Farris v. New Orleans Public Service, Inc.

242 So. 2d 335, 1970 La. App. LEXIS 4671
CourtLouisiana Court of Appeal
DecidedDecember 7, 1970
DocketNo. 4170
StatusPublished
Cited by3 cases

This text of 242 So. 2d 335 (Farris v. New Orleans Public Service, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farris v. New Orleans Public Service, Inc., 242 So. 2d 335, 1970 La. App. LEXIS 4671 (La. Ct. App. 1970).

Opinion

GULOTTA, Judge.

This is an appeal from a jury verdict in favor of Shirley M. Farris and against New Orleans Public Service, Inc. in the sum of $10,809.24 including special damages as well as damages for injury, pain and suffering.

The plaintiff was a passenger on a New Orleans Public Service, Inc. bus operating on South Claiborne Avenue and driven by an employee, Joel H. Rousselle. The bus was on the Lake side of South Claiborne Avenue traveling in the direction of Napoleon Avenue and it stopped at the bus stop on the corner of South Claiborne and Melpomene Streets in order to permit passengers to egress and ingress. As the bus started accelerating forward, it struck an automobile driven by Perry J. LeBlanc, a co-defendant, while he was attempting to negotiate a right turn into Melpomene from South Claiborne in front of and around the bus. The plaintiff was standing preparatory to departing from the bus at the next bus stop, according to her testimony, when the said bus collided with the right rear of the LeBlanc automobile causing the bus to come to an abrupt stop. The plaintiff suffered injuries as a result.

In the trial court the jury rendered a verdict in favor of plaintiff, Shirley M. Farris, and against the New Orleans Public Service, Inc. and further exonerated LeBlanc from any negligence. The matter was dismissed as against him and his liability insurer, Liberty Mutual Insurance Company.

New Orleans Public Service prosecutes this appeal on several grounds. The first is that if the bus driver, Rousselle, was negligent, the negligence of LeBlanc was the proximate cause of the accident and hence liable in damages as a co tort-feasor. That, further, Liberty Mutual, LeBlanc’s liability insurer, is liable. The second, and alternative contention, is that the jury award to the plaintiff is excessive and should be materially and appreciably reduced. Liberty Mutual Insurance Company answers the appeal seeking to have the judgment of the trial court affirmed insofar as it exonerates their insured of any negligence.

The plaintiff also appeals from the verdict and seeks to have the jury award for personal injuries increased to $20,000 contending that the amount of damages assessed was insufficient and should be substantially increased.

[337]*337There are two questions which this court must consider on appeal. The first is:

(1) Was the act of LeBlanc such that he is a co tort-feasor since his action may have been the proximate cause of the accident or was there a transition of time or events which exonerates him if there was in fact any negligence in the first place since his negligence was not continuous to the moment of the accident and hence not the proximate cause?
(2) Did the evidence reflect by a preponderance of evidence that the plaintiff was suffering from an alleged ulcer and, if so, was the alleged ulcer a pre-existing one aggravated by traumatic injury or was the alleged ulcer caused by the injury received by the plaintiff?

In connection with the first question presented here, i. e., the question of liability, the record reflects that the driver of the bus, Mr. Rousselle, was unable to appear at the trial for the reason that he was suffering from a severe heart condition. However, Officer Charles Emmons of the New Orleans Police Department who arrived on the scene in connection with the accident investigation stated:

“The driver of the bus, I recall the incident perfectly, he told me he thought when he was pulling forward he would clear Mr. LeBlanc’s vehicle and he misjudged and didn’t, hit the vehicle.”

The record reflects further that the bus driver pleaded guilty in the Traffic Court for the City of New Orleans to a violation of “improper start”.

It appears from the testimony that the LeBlanc automobile had almost negotiated the turn into Melpomene Street from South Claiborne Avenue and that the driver of the bus was negligent in failing to use reasonable precaution prior to the forward movement of the bus. It appears from the testimony herein that were he to have looked in the direction of his forward acceleration and would have accelerated at a reasonable rate of speed, that the accident would not have occurred.

After a finding that the bus driver was negligent, we concern ourselves with whether the action of LeBlanc was such as to make him liable. In the case of Houston Fire and Casualty Insurance Company v. Trahan et al., 214 So.2d 182, this court in a matter similar to the case herein found that the driver who started from the stopped position was negligent and dismissed the matter as against the other party. In its opinion on page 184 the court stated:

“Considering the extremely short distance between the parked service station truck and the subsequent point of impact, young Lusk could not have been alerted to the fact that the service station truck would proceed in his path or direction. He was traveling at a reasonable rate of speed and observing traffic conditions ahead of him. The service station truck left its parked position only 10 or 15 feet from the point of impact and suddenly came into Aris Street without warning of any kind, an action which young Lusk reasonably could not have anticipated. We are of the opinion that the accident was caused solely and only by the negligence of the service station truck operator”.

The record in this matter reflects that the bus had traveled approximately 10 or 15 feet immediately prior to striking the Le-Blanc automobile.

The Supreme Court of the State of Louisiana in Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805, said in citing Home Gas and Fuel Company v. Mississippi Tank Company, 246 La. 625, 166 So.2d 252, 255:

“To be actionable the cause need not be the sole cause, but it must be a cause in fact, and to be a cause in fact, it must have a proximate relation to the harm which occurs and it must be substantial in character”. •

[338]*338On page 810 in the same case the Supreme Court distinguished between negligence per se and negligence which is continuous to the moment of the accident. Using the rationale of the Ruthardt case, if the negligence was negligence per se but not continuous to the moment of the accident and was not substantial in character, then it could not have been the proximate cause.

This we find to be the situation in the instant case. Assuming that the negligence of LeBlanc was negligence per se, the record reflects that it was not continuous and, therefore, did not constitute a proximate cause of the said accident.

In the case of Russo v. Aucoin, 7 So.2d 744, the Court of Appeal on page 747 said:

“When the negligence of one person alone is the sole proximate cause of an accident, he is liable to anyone who suffers injury to his person or damage to his property as a result of the accident. When the negligence of several persons, whether their joint negligence or their separate negligence combines to form the proximate cause of an accident, the negligence of each one of them is one of the proximate causes of the accident, and he is liable to anyone who suffers injury to his person or damage to his property as a result thereof.” Arnold v. Griffith, La.App., 2 Cir., 192 So. 761, 763.

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Related

Davis v. Bowman
346 So. 2d 225 (Louisiana Court of Appeal, 1977)
Cobb v. New Orleans Public Service, Inc.
328 So. 2d 681 (Louisiana Court of Appeal, 1976)
Johnson v. Orleans Parish School Board
261 So. 2d 699 (Louisiana Court of Appeal, 1972)

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Bluebook (online)
242 So. 2d 335, 1970 La. App. LEXIS 4671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farris-v-new-orleans-public-service-inc-lactapp-1970.